BILL ANALYSIS �
SENATE COMMITTEE ON HEALTH
Senator Ed Hernandez, O.D., Chair
BILL NO: AB 2190
AUTHOR: Maienschein
AMENDED: May 23, 2014
HEARING DATE: June 18, 2014
CONSULTANT: Diaz
SUBJECT : Criminal defendants: gravely disabled persons.
SUMMARY : Allows a court to place a person found to be
incompetent to stand trial or not guilty by reason of insanity
on outpatient status within a mental health treatment facility,
as specified. Requires a conservatorship investigator to submit
a copy of his or her report, upon prior written request of the
defendant or the defendant's attorney, to specified entities in
a criminal case.
Existing law:
1.Prohibits any person charged with and found incompetent to
stand trial (IST) on a charge or conviction or found not
guilty by reason of insanity (NGI) of the following felonies
from being released on outpatient status unless the person has
been confined in a state hospital or other treatment facility
for 180 days or more:
a. Murder;
b. Mayhem;
c. Aggravated mayhem;
d. Kidnapping, kidnapping for ransom, or
kidnapping during the commission of a carjacking and
the victim suffered the intentional infliction of
great bodily harm (GBH);
e. Robbery or carjacking with a deadly or
dangerous weapon and the victim suffers GBH;
f. Arson that causes GBH or causes an inhabited
structure or property to burn;
g. Rape accomplished by means of force by giving
the victim an intoxicating, anesthetic substance or
controlled substance, or retaliation has been
threatened against the victim, as specified;
h. Rape of a spouse accomplished by means of
force or threat of retaliation;
i. Burglary in the first degree;
j. Assault with intent to commit mayhem, rape,
Continued---
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sodomy, oral copulation rape in concert with another,
lascivious acts upon a child, or penetration of
genitals or anus with a foreign object that result in
GBH to the victim;
aa. Lewd and lascivious acts;
bb. Carrying or placing an explosive or
destructive devise on a passenger vessel, aircraft,
car, or other vehicle;
cc. Possession of an explosive or destructive
devise in public places such as a theatre, hall,
college, church, hotel, other public building, or in,
on, or near specified public transportation;
dd. Wrongful possession of an explosive or
destructive devise with intent to injure or
intimidate; or,
ee. Any felony involving death, GBH, or an act
that poses a serious threat of bodily injury to
another person.
2.Allows any person subject to the provision above to be placed
on outpatient status if all of the following conditions are
satisfied:
a. The director of the state hospital or other
treatment facility to which the person has been
committed advises the committing court and the
prosecutor that the defendant would no longer be a
danger to the health and safety of others, including
himself or herself, while under supervision and
treatment in the community and will benefit from that
status;
b. The community program director advises the
court that the defendant will benefit from that status
and identifies an appropriate program of supervision
and treatment; and,
c. The prosecutor provides notice of the hearing
date and pending release to the victim (or his or her
next of kin) where a request for the notice has been
filed with the court, and after a hearing in court,
the court specifically approves the recommendation and
plan for outpatient status, as specified.
3.Authorizes a court to grant outpatient status, prior to actual
confinement in a state hospital or other treatment facility,
to any person charged with and found IST on the charge or
conviction of any misdemeanor or any non-specified felony or
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found NGI of any misdemeanor. Allows any person subject to
this provision to be placed on outpatient status if all of the
following conditions are satisfied:
a. In the case of a person who is an inpatient,
the director of the state hospital or other treatment
facility to which the person has been committed
advises the court that the defendant will not be a
danger to the health and safety of others while on
outpatient status and will benefit from such
outpatient status;
b. In all cases, the community program director
or a designee advises the court that the defendant
will not be a danger to the health and safety of
others while on outpatient status, will benefit from
such status, and identifies an appropriate program of
supervision and treatment; and,
c. After actual notice to the prosecutor and
defense attorney, and after a hearing in court, the
court specifically approves the recommendation and
plan for outpatient status.
4.Permits any person alleged, as a result of mental disorder, to
be a danger to him- or herself or others; or, to be gravely
disabled to be given an evaluation of his condition under a
superior court order, as specified. Requires that the
evaluation be carried out with the utmost consideration for
the privacy and dignity of the person for whom a court-ordered
evaluation is requested.
5.Permits a conservator of the person, of the estate, or of the
person and the estate to be appointed for any person who is
gravely disabled as a result of mental disorder or impairment
by chronic alcoholism.
6.Requires the officer providing conservatorship investigation
to investigate all available alternatives to conservatorship
and to recommend conservatorship to the court only if no
suitable alternatives are available and to set forth all
alternatives available if he or she recommends against
conservatorship. Requires the officer, prior to the hearing,
to render to the court a comprehensive written report that
contains all relevant aspects of the person's medical;
psychological; financial; family; vocational; and, social
condition; information obtained from the person's family
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members, close friends, social worker, or principal therapist;
and all available information concerning the person's real and
personal property. Requires the facilities providing intensive
treatment or comprehensive evaluation to disclose any records
or information that may facilitate the investigation.
7.Requires a copy of the officer's report to be transmitted to
the individual who originally recommended conservatorship, to
the person or agency, if any, recommended to serve as
conservator, and to the person recommended for
conservatorship. Allows the court that is determining
conservatorship to receive the report in evidence and to read
and consider its contents in rendering its judgment.
This bill:
1.Allows outpatient status to a person, who under existing law
is required to be confined in a state hospital or other
treatment facility for 180 days or more for the commission of
specified felonies, if the court finds a suitable placement,
including an outpatient placement program, that would provide
the person with more appropriate mental health treatment and
the court finds that the placement would not pose a danger to
the health or safety of others, including the victim and his
or her family.
2.Requires the officer providing a conservatorship
investigation, when a court with jurisdiction over a person in
a criminal case orders an evaluation of the person's mental
condition, as specified, to serve a copy of the report to the
defendant or his or her attorney. Requires, upon prior written
request of the defendant or his or her attorney, the officer
providing the conservatorship investigation to submit a copy
of the report to the court hearing the criminal case, the
district attorney, and the county probation department.
Requires the conservatorship investigation report, and the
information contained in it, to be kept confidential and not
further disclosed to anyone without the prior written consent
of the defendant.
3.Requires the court to place all copies of the report in a
sealed file after disposition of the criminal case. Permits
the defendant and defendant's attorney to retain their copies.
Permits, if the defendant is placed on probation status, the
probation department to retain a copy for the purpose of
supervision until probation is terminated, at which time the
department is required to return its copy to the court for
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placement in the sealed file.
4.Makes findings and declarations relative to a conservatee's
confidentiality rights. Makes other technical, clarifying
changes.
FISCAL EFFECT : According to the Assembly Appropriations
Committee:
1.Potential increase in state trial court costs to the extent
additional hearings are required to determine outpatient
placement for patients made eligible by this bill. If, for
example, however, an additional five percent of the IST or NGI
population in state hospitals receives a two-and-a-half-hour
outpatient placement hearing as a result of this bill, the
General Fund costs would be in the range of $165,000.
2.No significant state hospital costs/savings as result of
authorizing outpatient placements for IST or NGI defendants
who have not served 180 days in a state hospital or other
treatment facility. To the extent this authorization makes
more IST or NGI beds available, these beds will be filled
immediately from the existing waiting list of patients in
county jail until a bed becomes available.
PRIOR VOTES :
Assembly Public Safety:6- 0
Assembly Appropriations:17- 0
Assembly Floor: 78- 0
COMMENTS :
1.Author's statement. According to the author, by permitting
courts to place certain mentally disordered offenders in
outpatient settings, the bill both permits courts to make
placements that are most appropriate for an individual
defendant and results in cost savings. Also by permitting
defendants to authorize release of conservatorship reports to
criminal courts, the bill increases the options available to
criminal courts when handling cases involving mentally
disordered offenders, and improves coordination between
conservatorship courts and the criminal courts.
2.Background. In an April 2011 report, "Recommendations for
Changing the Paradigm for Persons with Mental Illness in the
Criminal Justice System," the Task Force for Criminal Justice
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Collaboration on Mental Health Issues stated that courts, 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 to restoration programs for defendants found
incompetent to stand trial. The Task Force recommended that
state hospitals and mental health outpatient programs be
adequately funded to ensure effective and timely restoration
of competency; increase community placement options through
the Forensic Conditional Release Program and other
community-based programs for IST defendants charged with
nonviolent offenses; and modify existing law to provide courts
hearing competency matters more alternative procedural and
disposition tools, including the jurisdiction to conditionally
release a defendant found IST to the community, where
appropriate, rather than in a custodial or hospital setting,
to receive mental health treatment with supervision until
competency is restored. The Task Force also recognized that
some criminal defendants with mental illness may be conserved
or may be involved in conservatorship proceedings at the same
time that their criminal case is being processed. Because
these cases are currently heard by different judicial officers
on different calendars, judicial officers hearing either the
civil or criminal case often do not have all applicable
information, which can result in conflicting orders and other
complications for the defendant.
3.Confidentiality of mental health records. According to the
Disability Rights California Web site, all information about
mental health services that one receives, whether received
voluntarily or involuntarily, is confidential and cannot be
released without authorization. However, there are situations
when records can be released without authorization. In some
cases, limited information must be released to law enforcement
when a person is an involuntary patient or under a Penal Code
commitment in a facility and being moved, is under criminal
investigation, or escapes from a state hospital. Information
about a person's mental health care can also be released if
one is an involuntary patient and gravely disabled and the
person disappears from a facility or is transferred between
state hospitals. Generally, in order for mental health records
to be shared, a form must be signed by the person (or a
person's conservator) each time the information is shared, and
it must contain specific information to be shared, the name of
the agency or individual with whom information is shared, the
name of the agency or person authorized to release the
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information and the purpose, and a valid expiration date.
Statements must also be provided informing a person about his
or her right to revoke authorization to share information, as
well as a person's right to a copy of the authorization. A
person has the right to receive copies of the form, which must
be placed in the person's medical record.
4.Double referral. This bill has been double referred. Should it
pass out of this committee, it will be referred to the Senate
Public Safety Committee.
5.Related legislation. AB 2186 (Lowenthal) seeks to change the
process of the involuntary administration of antipsychotic
mediation of individuals who are found to be incompetent to
stand trial. This bill was heard in the Senate Public Safety
Committee on June 10, 2014, and passed with a vote of 6-0.
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 that the
defendant will regain competence in the foreseeable future.
This bill was heard in the Senate Public Safety Committee on
June 10, 2014, and passed with a vote of 6-0.
6.Support. The sponsor and supporters argue that this bill
permits courts to make placements that are most appropriate
for individual defendants, which can result in cost savings
while still protecting the public. They further argue that
providing care to people in the criminal justice system with a
serious mental illness is essential to stopping the cycle of
crime and that access to appropriate care should be a
priority.
SUPPORT AND OPPOSITION :
Support: Judicial Council of California (sponsor)
Californians for Safety and Justice
Legal Services for Prisoners with Children
National Association of Social Workers, California
Chapter
Oppose: None received.
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