BILL ANALYSIS �
AB 2543
Page 1
Date of Hearing: April 22, 2014
ASSEMBLY COMMITTEE ON HEALTH
Richard Pan, Chair
AB 2543 (Levine) - As Amended: March 28, 2014
SUBJECT : State hospitals: placement evaluations.
SUMMARY : Requires the Department of State Hospitals (DSH) to
establish a pool of forensic psychiatrists and psychologists,
and requires these forensic panels to evaluate and recommend the
appropriate placement of specified criminal defendants.
Specifically, this bill :
1)Requires DSH to establish a pool of psychiatrists and
psychologists with forensic skills who are employees of DSH
and to create, from the pool, forensic panels of three to five
psychiatrists and psychologists.
2)Substitutes for community program directors (CPDs) the
forensic panels as the entities responsible for evaluating
defendants and making placement recommendations for
individuals pleading not guilty by reason of insanity (NGI),
or who are found incompetent to stand trial (IST), when the
evaluation is required by law or requested by a court.
EXISTING LAW :
1)Establishes DSH to manage the state hospital system and
provide mental health services to patients admitted in five
DSH-administered state hospitals and three psychiatric
programs located in state prisons.
2)Establishes the Mentally Disordered Offender Act which, among
other things, provides for the involuntary commitment of
mentally ill persons to a state hospital pursuant to various
provisions of the Welfare and Institutions Code for civil
commitments, and provisions of the Penal Code for criminal
court commitments, including circumstances when the patient is
deemed IST or NGI.
3)Requires a court, when a defendant pleads NGI, or in instances
where there is a question of a defendant's mental competence,
to first appoint one or more psychiatrists or licensed
psychologists, as specified, to examine and evaluate the
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defendant's mental status or disorder and to provide a report
to the court on the results of the evaluation, as specified.
4)Requires a court directing any defendant determined to be IST
or found NGI to be confined in a state hospital, or other
public or private treatment facility, to order the CPD to
evaluate the defendant and make a recommendation to the court
as to whether the defendant should be placed on outpatient
status or confined in a state hospital or other treatment
facility.
FISCAL EFFECT : This bill has not been analyzed by a fiscal
committee.
COMMENTS :
1)PURPOSE OF THIS BILL . According to the author, this bill is
needed because currently the state has almost no role in
deciding who is confined to state hospitals even though the
state bears the costs and responsibility for the care of
individuals confined to state hospitals. To provide a state
role, the author argues state-level panels of forensic
psychiatrists and psychologists, rather than local CPDs,
should conduct the placement evaluations of IST and NGI
individuals and make a recommendation to the courts as to the
appropriate treatment and placement for those individuals.
2)BACKGROUND .
a) Department of State Hospitals. DSH manages the
California state hospital system, which provides mental
health services to patients admitted into DSH facilities.
DSH oversees five state hospitals (Atascadero, Coalinga,
Metropolitan (in Los Angeles County), Napa, and Patton) and
through an interagency agreement with the California
Department of Corrections and Rehabilitation also treats
inmates at prisons in Vacaville, Salinas Valley, and
Stockton. All eight facilities are licensed by the
California Department of Public Health and required to meet
or exceed regulatory standards to continue providing care.
DSH was created in the 2012-13 Budget, which eliminated the
Department of Mental Health by transferring its various
functions to other departments. DSH currently employs
nearly 11,000 staff and estimates in 2014-15 it will serve
6,560 patients in the hospital system with a proposed $1.6
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billion budget ($1.46 billion General Fund).
A criminal or civil court judge mandates treatment for
patients in DSH facilities. Up to 90% of DSH patients are
forensic commitments, individuals sent to DSH through the
criminal court system, who have committed or have been
accused of committing a crime linked to their mental
illness. DSH also treats patients who have been classified
as Sexually Violent Predators. The remainder of the DSH
population has been committed through civil court because
they are a danger to themselves or others, under the
Lanterman-Petris-Short (LPS) Act. LPS patients can be held
72 hours for mental health evaluation and treatment,
evaluated for an additional 14 day treatment period and,
with further evaluation and judicial review, have their
commitments extended in 180 day intervals.
b) Forensic Conditional Release Program (CONREP). CONREP
is the DSH statewide system of community-based treatment,
evaluation and supervision services for judicially
committed individuals and mentally disordered offenders
(MDOs). The mission of the program is the protection of
the public through reducing or preventing individual
re-offense. Individuals in the program agree to follow the
terms of individualized treatment plans which may include
court-ordered involuntary outpatient services. IST
patients are treated at DSH facilities until competency is
restored, or until the statutory time limit is reached on
their commitment. DSH contracts with county programs
willing to provide program services for a reasonable cost.
DSH currently contracts with private agencies to administer
CONREP programs on a regional basis. Although CONREP is a
community outpatient program, the state hospitals play an
integral role in the treatment of judicially committed
individuals and MDOs. In most cases, individuals are
initially committed to a state hospital for inpatient
treatment and only later committed to outpatient treatment.
State hospitals serve as the inpatient treatment
facilities for judicially committed and MDO individuals.
c) CPDs. Pursuant to Penal Code Section 1605, DSH
designates a CPD responsible for the local county CONREP
program. The CPD and all professional staff who provide
services must meet licensure requirements and possess
specific knowledge and skills necessary to work the target
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populations. The local programs are responsible to
administer community treatment for individuals committed in
the county or region. Local CONREP programs also conduct
the evaluations of IST and NGI individuals for the purpose
of making a recommendation to the court as to the whether
the individual should be confined to a state hospital,
local public or private inpatient treatment, or community
outpatient treatment. This bill would substitute new
forensic evaluation panels within DSH, instead of the CPDs,
to conduct court-ordered evaluations and make
recommendations regarding treatment and placement.
d) IST. Under state and federal law, all individuals who
face criminal charges must be mentally competent to help in
their defense. By definition, an individual who is IST
lacks the mental competency to participate in legal
proceedings. In a January 2012 report by the Office of the
Legislative Analyst (LAO) entitled, "An Alternative
Approach: Treating the Incompetent to Stand Trial," the LAO
outlined the specific process California courts must follow
when a defendant's competency is in doubt. The process is
often initiated by defense attorneys concerned about the
client's mental capacity which then requires the judge to
order an evaluation of the person by court-appointed mental
health experts, during which time the court proceedings are
suspended. The evaluation and report guides the court to
assess competency. In cases when a person is found IST,
judges then typically order a CPD to do an evaluation of
the most appropriate treatment facility, the goal of
treatment being restoring the person to competency.
Individuals charged with a violent felony are typically
ordered to undergo treatment at a state hospital.
According to LAO, there is a monthly statewide waitlist
that averages between 200 and 300 IST individuals,
typically in county jails, waiting for a bed to become
available in a state hospital.
e) NGI. According to a Disability Rights California May
2009 report entitled, "Forensic Mental Health Legal
Issues," the plea of NGI is an affirmative defense to a
criminal charge, but refers to a legal definition not a
clinical diagnosis. Under current California law, a
defendant will be found NGI if it is proven by a
preponderance of the evidence that the individual was
either: i) incapable of knowing or understanding the
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nature and quality of the act; or, ii) incapable of
distinguishing right from wrong at the time the offence was
committed. The insanity defense is used primarily when a
criminal charge is a serious felony. If a court or jury
finds a person NGI, the court must determine whether to
confine the person in a state hospital or outpatient
treatment program. Penal Code Section 1026 requires, prior
to making the placement, the court to order an evaluation
by the CPD to advise the court on the most appropriate
placement.
f) Forensic Specialists. Forensic psychology, as defined
by the American Psychological Association, is the
application of clinical specialties to the legal arena.
Forensic psychologists are called on to assess individuals
who are involved, in one way or another, with the legal
system. According to the American Board of Psychiatry and
Neurology (ABPN), forensic psychiatry is a subspecialty
that involves having psychiatric focus on
interrelationships with civil, criminal, and administrative
law, evaluation and specialized treatment of individuals
involved with the legal system, incarcerated in jails,
prisons, and forensic psychiatry hospitals. To be
certified as forensic specialists, both psychologists and
psychiatrists must complete additional training and testing
requirements.
3)SUPPORT . The American Federation of State, County and
Municipal Employees (AFSCME), cosponsor of this bill, argues
that this bill would apply more consistent standards under
which inmates are deemed IST and NGI. According to AFSCME,
the current system has led to inconsistency because of the use
of private medical professionals. AFSCME states that the
forensic assessment panels of publically employed mental
health specialists established in this bill will ensure more
uniform standards for these evaluations. The Union of
American Physicians and Dentists, cosponsor of this bill,
argues it will establish an improved mechanism for diagnosing
a defendant's mental status and placement recommendations, and
that CPDs do not have the forensic evaluation skills to create
proper placement recommendations. The California Association
of Psychiatric Technicians (CAPT) supports this bill to
address the growing population of forensic patients in state
hospitals, including some patients who are believed to be
"malingering," faking mental illness, in order to avoid
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state-prison terms. CAPT points to the growth of forensic
patients since passage of Proposition 184 in 1994
(Three-Strikes Law) from approximately 20% of state hospital
patients at that time to more than 90% presently. CAPT argues
that malingering patients prey on state hospital patients who
are truly and severely mentally ill, and state evaluators
skilled in understanding and helping Californians with the
most severe mental illnesses should determine the appropriate
placement for NGI or IST individuals.
4)PREVIOUS LEGISLATION . AB 610 (Achadjian), Chapter 705,
Statutes of 2013, requires the state, when a Superior Court
hearing is held on an order requiring involuntary medication
of specified patients committed to state hospitals, to
reimburse the county for costs associated with the hearing.
5)RELATED LEGISLATION .
a) AB 2186 (Lowenthal) revises the timelines and requires
the court to use opinions developed by examining medical
professionals when the court is determining if an IST
defendant lacks the capacity to make decisions regarding
the administration of antipsychotic medication. AB 2186 is
currently in the Assembly Public Safety Committee.
b) AB 2190 (Maienschein) revises the conditions and
circumstances under which individuals found IST and NGI may
be treated on an outpatient basis and the requirements
applicable to LPS conservatorship investigations. AB 2190
is currently in the Assembly Public Safety Committee.
c) AB 2625 (Achadjian) requires, among other things, if the
report issued by the medical director of a state hospital
or other treatment facility indicates that there is no
substantial likelihood that an IST defendant will regain
mental competence in the foreseeable future, the committing
court to order the defendant to be returned to the court no
later than 10 days following receipt of the report and
requires specified notice to the defense counsel and
district attorney. AB 2625 is currently in the Assembly
Public Safety Committee.
6)DOUBLE REFERRAL . This bill is double referred; if this bill
passes this Committee it will be referred to the Assembly
Public Safety Committee.
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7)POLICY COMMENT. This bill substitutes a state-level panel of
forensic psychologists and psychiatrists for CPDs in the
evaluation of appropriate placements for IST and NGI
individuals. However, CPDs may be more likely than
state-based professionals to have current and better knowledge
of local and regional community treatment options available to
meet the needs of IST and NGI patients and may therefore be
better suited to identify and recommend appropriate
placements.
8)SUGGESTED AMENDMENTS . This bill may offer a solution that
does not most directly address the problems sponsors and
supporters have identified. This bill eliminates the role of
CPDs in placement evaluations for individuals who have already
been found by the courts to be IST and NGI and substitutes a
state-level panel of forensic mental health experts. However,
sponsors and supporters raise concerns about the dramatic
growth in state hospital patients in these categories as well
as concerns that some individuals may be faking mental illness
to avoid prison. The IST and NGI determinations are currently
made through the courts, with input from mental health experts
who evaluate the person's mental status before a final
determination is adjudicated by the courts, and prior to any
placement evaluation done by CPDs. The courts are required to
appoint one or more psychologists or psychiatrists to conduct
those initial mental health evaluations, but there is no
statutory requirement that the court-appointed experts have
forensic certification or expertise.
To directly bring the expertise of the forensic panels created
by this bill into the judicial processes that determine IST
and NGI, this bill would need to be amended to delete the
changes to CDP placement evaluations and instead require that
courts use the new state-level forensic panels for the mental
health evaluations proceeding adjudication of IST or NGI. In
addition, the author may wish to consider requiring DSH to
establish a stakeholder work group of mental health and legal
experts to advise DSH in most effectively designing,
coordinating, and deploying the new forensic panels.
REGISTERED SUPPORT / OPPOSITION :
Support
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American Federation of State, County and Municipal Employees
(co-sponsor)
Union of American Physicians and Dentists (co-sponsor)
California Association of Psychiatric Technicians
Opposition
None on file.
Analysis Prepared by : Deborah Kelch / HEALTH / (916) 319-2097