BILL ANALYSIS �
AB 2186
Page 1
Date of Hearing: April 22, 2014
Counsel: Shaun Naidu
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2186 (Lowenthal) - As Amended: April 21, 2014
SUMMARY : Allows the representative of any facility where a
defendant found incompetent to stand trial is committed, and
specified others, to petition for an order to involuntarily
medicate the defendant, and, upon issuance of that order,
authorizes the involuntary administration of antipsychotic
medication to the defendant when and as prescribed by the
defendant's treating psychiatrist at any facility housing him or
her for purposes of recovering mental competency; makes other
related changes. Specifically, this bill :
1)Requires the court, when determining if the defendant lacks
capacity to make decisions regarding the administration of
antipsychotic medication, to consider opinions in the reports
prepared by the psychiatrist or licensed psychologist
appointed by the court to examine the defendant for mental
competency purposes, if those reports are applicable to this
issue.
2)Requires the court, if it finds any one of a list of described
conditions to be true, to issue an order, as specified and
valid for no more than one year, authorizing involuntary
administration of antipsychotic medication to the defendant
when and as prescribed by the defendant's treating
psychiatrist at any facility housing the defendant for the
purpose recovering mental competency.
3)Provides that if an administrative law judge upholds the
21-day certification by the defendant's treating psychiatrist
that antipsychotic medication has become medically necessary
and appropriate, the court may, for a period of not more than
14 days, extend the certification and continue the required
hearing pursuant to stipulation between the parties or upon a
finding of good cause.
4)Allows the district attorney, county counsel, or
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representative of any facility where a defendant found
incompetent to stand trial is committed to petition the court
for an order, reviewable as specified, to administer
involuntary medication pursuant to specified criteria.
5)Requires the court to review the order to administer
involuntary medication at the time of the review of the
initial competency report by the medical director of the
treatment facility and at review of the 6-month progress
reports.
6)Allows the district attorney, county counsel, or
representative of any facility where a defendant found
incompetent to stand trial is committed, within 60 days before
the expiration of the one-year involuntary medication order,
to petition the committing court for a renewal of the order,
subject to the specified conditions and requirements.
Requires the petition to include the basis for involuntary
medication, as specified, and requires notice of the petition
to be provided to the defendant, the defendant's attorney, and
the district attorney. Requires the court to hear and
determine if the defendant continues to meet the required
criteria for involuntary medication and that the hearing be
conducted before the expiration of the current order.
EXISTING LAW :
1)Prohibits a person from being tried or adjudged to punishment
while that person is mentally incompetent. (Pen. Code, �
1367, subd. (a).)
2)Defines "mental incompetency" as an individual who, as a
result of mental disorder or developmental disability, is
unable to understand the nature of the criminal proceedings or
to assist counsel in the conduct of a defense in a rational
manner. (Pen. Code, � 1367, subd. (a).)
3)Requires, if during the pendency of an action and prior to
judgment, a doubt arises in the mind of the judge as to the
mental competence of the defendant, the judge to state that
doubt on the record and inquire of the defendant's attorney
whether, in the opinion of that attorney, the defendant is
mentally competent. Requires the court, at the request of the
defendant or his or her attorney, to recess the proceeding for
as long as may be reasonably necessary to permit counsel to
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confer with the defendant and to form an opinion as to the
mental competence of the defendant. (Pen. Code, � 1368, subd.
(a).)
4)Requires the trial to determine mental competency to proceed
as follows:
a) Requires the court to appoint a psychiatrist or licensed
psychologist to examine the defendant and to appoint two
psychiatrists or licensed psychologists if the defendant is
not seeking a finding of mental incompetence. Requires the
examining psychiatrist or licensed psychologist to evaluate
the nature of the defendant's mental disorder, if any; the
defendant's ability or inability to understand the nature
of the criminal proceedings or assist counsel in the
conduct of a defense in a rational manner; and whether
treatment with antipsychotic medications is medically
appropriate for the defendant and whether antipsychotic
medication is likely to restore the defendant to
competency.
b) Requires the defendant's attorney to offer evidence in
support of the allegation of mental incompetence.
c) Requires the prosecution to present its case regarding
the issue of the defendant's present mental competence.
d) Allows each party to present rebutting testimony, unless
the court, for good reason in furtherance of justice, also
permits other evidence in support of the original
contention. (Pen. Code, � 1369.)
5)States that if the defendant is found mentally competent, the
criminal process shall resume, the trial on the offense
charged shall proceed, and judgment may be pronounced. (Pen.
Code, � 1370, subd. (a)(1)(A).)
6)Requires, if the defendant is found mentally incompetent, the
trial or judgment to be suspended until the person becomes
mentally competent. (Pen. Code, � 1370, subd. (a)(1)(B).)
7)Allows, until January 1, 2016 and upon the concurrence of the
county board of supervisors, the county mental health
director, and the county sheriff, a county jail to be
designated a "treatment facility" and to provide
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medically-approved medicine to defendants found to be mentally
incompetent and unable to provide consent due to a mental
disorder, provided that the defendant's treatment does not
exceed 6 months, except as specified, and does not abrogate or
limit provisions of law enacted to ensure the defendant's
constitutional due process rights. (Pen. Code, �� 1369.1 &
1370, subd. (a)(2)(A).)
8)Requires a court to issue an order authorizing the treatment
facility to involuntarily administer antipsychotic medication
to a defendant when prescribed by the defendant's treating
psychiatrist if the court finds any of the following
conditions to be true:
a) The defendant lacks capacity to make decisions regarding
antipsychotic medication, the defendant's mental disorder
requires medical treatment with antipsychotic medication,
and, if the defendant's mental disorder is not treated with
antipsychotic medication, it is probable that serious harm
to the physical or mental health of the patient will
result.
i) Probability of serious harm to the physical or
mental health of the defendant requires evidence that the
defendant is presently suffering adverse effects to his
or her physical or mental health or the defendant has
previously suffered these effects as a result of a mental
disorder and his or her condition is substantially
deteriorating.
ii) The fact that a defendant has a diagnosis of a
mental disorder does not alone establish probability of
serious harm to the physical or mental health of the
defendant.
b) The defendant is a danger to others, in that the
defendant has inflicted, attempted to inflict, or made a
serious threat of inflicting substantial physical harm on
another while in custody, or the defendant had inflicted,
attempted to inflict, or made a serious threat of
inflicting substantial physical harm on another that
resulted in his or her being taken into custody, and the
defendant presents, as a result of a mental disorder or
mental defect, a demonstrated danger of inflicting
substantial physical harm on others.
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i) Demonstrated danger may be based on an assessment of
the defendant's present mental condition, including a
consideration of past behavior of the defendant within
six years prior to the time the defendant last attempted
to inflict, inflicted, or threatened to inflict
substantial physical harm on another, and other relevant
evidence.
c) The people have charged the defendant with a serious
crime against a person or property, involuntary
administration of antipsychotic medication is substantially
likely to render the defendant competent to stand trial,
the medication is unlikely to have side effects that
interfere with the defendant's ability to understand the
nature of the criminal proceedings or to assist counsel in
the conduct of a defense in a reasonable manner, less
intrusive treatments are unlikely to have substantially the
same results, and antipsychotic medication is in the
patient's best medical interest in light of his or her
medical condition. (Pen. Code, � 1370, subd. (a)(2)(B).)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "AB 2186 ensures
continuity of treatment for IST patients as they transition
between state hospitals and county jails, and streamlines
reporting requirements to ensure that the individual is
provided with appropriate, necessary, and beneficial mental
health treatment that is consistent with their due process
rights.
"Any gap in medication coverage can result in the defendant
decompensating to the point of incompetency once again,
necessitating a recommitment in the state hospital. Delays in
treatment not only put the defendant's mental health at risk,
but also result in unnecessary costs to the state for
additional treatment in a state hospital."
2)Incompetency & Involuntary Medication : The well-established
standard in American jurisprudence regarding a person's mental
fitness to stand trial was laid out by the U.S. Supreme Court
in Dusky v. United States. The Court stated that "the test
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must be whether [the defendant] has sufficient present ability
to consult with his lawyer with a reasonable degree of
rational understanding-and whether he has a rational as well
as factual understanding of the proceedings against him."
(Dusky v. United States (1960) 362 U.S. 402, 402 [internal
quotations omitted].) California has codified this standard
in Penal Code section 1367, subdivision (a), which bars a
person from being tried or adjudged to punishment if that
person, "as a result of mental disorder or developmental
disability, ? is unable to understand the nature of the
criminal proceedings or to assist counsel in the conduct of a
defense in a rational manner." (Pen. Code, � 1367, subd.
(a).) If the court finds a defendant mentally incompetent to
stand trial, the person is committed to a state hospital or
other (inpatient or outpatient) treatment facility for
treatment to regain competency in order to be brought back to
court to face the charges against him or her. (Pen. Code, �
1370, subd. (a).) Before making the order to commit a
defendant to a state hospital or other treatment facility, the
court must make a determination on whether the defendant lacks
capacity to make decisions regarding the administration of
antipsychotic medication. (Pen. Code, � 1370, subd.
(a)(2)(B)(i); see Existing Law #8.) Upon a finding of any of
the specified conditions, the court is required to issue an
order authorizing the treatment facility to involuntarily
administer medication to the defendant as prescribed by his or
her treating psychiatrist (Pen. Code, � 1370, subd.
(a)(2)(B)(ii).), with the defendant's capacity to make
decisions concerning antipsychotic medications being reported
to the court at six-month intervals. (Pen. Code, � 1370,
subd. (b)(2).)
3)Coordination of Treatment : Currently, the court order
allowing the involuntary medication of a defendant committed
to a state hospital to regain competency is specific to one
treatment facility and cannot be transferred to another
facility in which the defendant later could be housed.
Moreover, it allows for the involuntary administration of
medication when and as prescribed by the defendant's treating
psychiatrist at the specific treatment facility for which the
court order applies. (Pen. Code, � 1370, subd.
(a)(2)(B)(ii).) This bill seeks to expand the order to
include allowing "involuntary administration of antipsychotic
medication to the defendant when and as prescribed by the
defendant's treating psychiatrist at any facility housing the
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defendant for purposes of [Penal Code section 1370]." While
this bill allows for the continual treatment of a defendant to
regain competence by allowing his or her medication to be
administered uninterrupted if the defendant is transferred
from one facility to another-for example, the defendant has
regained competency in the state hospital and has been
transferred to the county jail to resume the criminal
proceedings against him or her-this bill does not address the
issue of whether information about the type and dosage of
medication being administered to the defendant also is
transferred over, ensuring that the defendant remains properly
medicated and likely decreasing the chance that he or she will
be under-medicated, be overmedicated, or suffer an adverse
reaction to different medication prescribed by the new
facility's treating psychiatrist. Consequently, consideration
should be given to whether it is appropriate to include the
defendant's medical prescription (to be accessed only by the
treating psychiatrist) in the documents required, pursuant to
Penal Code section 1370, subdivision (a)(6)(B), to be taken
with the defendant to each subsequent facility to which he or
she is transferred.
4)Constitutional Considerations : In Washington v. Harper, the
U.S. Supreme Court held that a mentally-ill prisoner who is a
danger to himself or others can be involuntarily medicated.
(Washington v. Harper (1990) 494 U.S. 210.) Furthermore, the
Court held in Riggins v. Nevada that forced medication in
order to render a defendant competent to stand trial for
murder was constitutionally permissible. (Riggins v. Nevada
(1992) 504 U.S. 127.) Read together, the Court has stated
that these two cases "indicate that the Constitution permits
the Government involuntarily to administer antipsychotic drugs
to a mentally ill defendant facing serious criminal charges in
order to render that defendant competent to stand trial, but
only if the treatment is medically appropriate, is
substantially unlikely to have side effects that may undermine
the fairness of the trial, and, talking account of less
intrusive alternatives, is necessary significantly to the
further important governmental trial-related interests."
(Sell v. United States (2003) 539 U.S. 166, 179.)
In Sell, the Court goes on to further specify the limited
circumstances when the U.S. Constitution permits the
government to administer drugs to a pretrial detainee against
the detainee's will. It finds that all of the following
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conditions must apply:
a) A court must find that important governmental interests
are at stake. While bringing to trial a person accused of
a serious crime is an important government interest, and
timely prosecution satisfies the literal aspect of this
element, that alone does not satisfy the purpose as there
may be special circumstances that lessen its importance in
a particular case. Consequently, this analysis must be
done on a case-by-case basis. (Id. at 180; Carter v.
Superior Court (2006) 141 Cal.App.4th 992, 1002.)
b) A "court must conclude that involuntary medication will
significantly further those concomitant state interests.
It must find that administration of the drugs is
substantially likely to render the defendant competent to
stand trial." (Sell, supra, 539 U.S. at 181.)
c) A court must find that the administration of the drugs
is "substantially unlikely" to have side effects that
interfere significantly with the person's ability to assist
his or her counsel in conducting a defense. (Id.)
d) A court must find that involuntary medication is
necessary to further those interests and that alternative,
less intrusive treatments are unlikely to achieve
substantially the same results. (Id.)
e) A court must find that administering the medication is
medically appropriate, that is to say, in the inmate's best
medical interest in light of his or her condition. (Id.)
The procedure laid out in this bill to involuntarily medicate
an inmate incorporate the requirements set out by the Court in
Sell v. United States.
5)Task Force Recommendations : In 2008, then-California Chief
Justice George established the Task Force for Criminal Justice
Collaboration on Mental Health Issues, charging it with
crafting policy recommendations to improve the state's
responses to offenders with mental illness. In its final
report, the task force stated, "[c]ourts, in collaboration
with state hospitals and local mental health treatment
facilities, should create and employ methods that prevent
prolonged delays in case processing and ensure timely access
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to restoration programs for defendants found incompetent to
stand trial." (Task Force for Criminal Justice Collaboration
on Mental Health Issues, Judicial Council of California, Final
Report (Apr. 2011) p. 27
[as of Apr. 14, 2014].) The task force included
the following among its recommendations on how to improve
California's response to individuals with mental health issues
in the criminal justice system:
Care and treatment of defendants with mental illness
should be continued after restoration of competence.
Penal Code section 1372(e) should be expanded,
consistent with Sell v. United States, to ensure that
competence is maintained once restored and that
medically appropriate care is provided to defendants
until such time that a defendant's
incompetent-to-stand-trial status is no longer
relevant to the proceedings. In an effort to maintain
a defendant's competence once restored, courts, state
hospitals, and the California State Sheriff's [sic]
Association should collaborate to develop common
formularies to ensure that medications administered in
state hospitals are also available in jails.
(Id. at p. 29.)
6)Argument in Support : The Department of State Hospitals argues
that this bill "will result in better mental health treatment
for IST patients and reduced costs to both the court system
and the state through increased efficiency and decreased
workload. In addition, the changes could reduce
patient-on-patient and patient-on-staff violence due to IST
defendants receiving antipsychotic medication in a timely
manner. Allowing patients to be medicated more quickly, thus
restoring them to competency and returning them to court for
trial could also decrease the backlog of IST defendants in
jails awaiting bed space in a state hospital."
7)Current Legislation :
a) AB 2625 (Achadjian) would require the return to court,
as specified, of a defendant who was confined to a state
hospital for treatment to regain competency if the treating
facility reports that there is no substantial likelihood
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that the defendant will regain competence in the
foreseeable future. AB 2625 is pending in this committee.
b) AB 2190 (Maienschein) would allow the court to place a
person found to be incompetent to stand trial or not guilty
by reason of insanity on outpatient status without prior
confinement for a specified period within a mental health
treatment facility. AB 2190 is pending in this committee.
8)Prior Legislation :
a) AB 623 (Lowenthal), of this legislative session, would
have provided that inmates confined in a county jail, such
as pretrial detainees, are the same as inmates sentenced to
county jail for the purpose of involuntarily administrating
psychiatric medication. AB 623 was never heard by this
committee.
b) AB 1907 (Bonnie Lowenthal), Chapter 814, Statutes of
2012, provided that no individual sentenced to imprisonment
in county jail for specified felonies shall be administered
any psychiatric medication without his or her prior
informed consent, unless specified circumstances are met.
Additionally, made conforming changes to the process by
which inmates of CDCR can be involuntarily medicated.
c) AB 1114 (Bonnie Lowenthal), Chapter 665, Statutes of
2011, changed the procedures for involuntarily medicating
inmates of the Department of Corrections and
Rehabilitation.
d) AB 2380 (Dymally), of the 2005-06 Legislative Session,
would have clarified that "treatment" for medically
disordered offenders paroled to other facilities for
treatment includes involuntary medication. AB 2380 failed
passage in this committee.
e) AB 1424 (Thompson), Chapter 506, Statutes of 2001,
related to the involuntary medication for individuals under
the Lanterman-Petris-Short Act.
f) AB 2798 (Thompson), of the 1999-2000 Legislative
Session, would have authorized a judicially committed
forensic patient in a state hospital to be medicated
involuntarily with antipsychotic mediation in accordance
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with specified procedures. AB 2798 was never heard by this
committee.
REGISTERED SUPPORT / OPPOSITION :
Support
Department of State Hospitals (Sponsor)
California Association of Psychiatric Technicians
California State Sheriffs' Association
Los Angeles County Sheriff's Department
Taxpayers for Improving Public Safety
Opposition
None
Analysis Prepared by : Shaun Naidu / PUB. S. / (916) 319-3744