BILL ANALYSIS �
AB 2543
Page 1
Date of Hearing: April 29, 2014
Counsel: Shaun Naidu
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2543 (Levine) - As Amended: April 23, 2014
As Proposed to be Amended in Committee
SUMMARY : Allows, at the election of the Director of State
Hospitals, for an evaluation panel, instead of the treating
psychiatrist, to determine whether a defendant committed to the
Department of State Hospitals (DSH) to regain competency lacks
capacity to make decisions regarding antipsychotic medication,
as specified, and allows the lead member of the panel to present
the case for the certification for involuntary treatment.
Specifically, this bill :
1)Provides that if informed consent is not obtained, after
efforts to obtain such consent, from a defendant committed to
DSH to regain competency, and if all members of an evaluation
panel are of the opinion that the defendant lacks capacity to
make decisions regarding antipsychotic medication, the lead
member of the panel is to certify whether the lack of capacity
and any applicable conditions, as described, exist.
2)Provides that if the lead member of the evaluation panel, as
opposed to the treating psychiatrist, certifies that
antipsychotic medication has become medically necessary and
appropriate, antipsychotic medication may be administered to
the defendant for not more than 21 days, provided, however,
that, within 72 hours of the certification, the defendant is
provided a medication review hearing before an administrative
law judge to be conducted at the facility where the defendant
is receiving treatment.
3)Allows the lead member of the evaluation panel, in place of
the treating psychiatrist, to present the case for the
certification for involuntary treatment.
4)Allows DSH, at the election of the Director of State
Hospitals, to establish a pool of psychiatrists with forensic
skills who are employees of the department from which
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evaluation panels are to be created.
5)Provides that upon the establishment of a pool of
psychiatrists, DSH is required to create evaluation panels
with each panel consisting of at least three forensic
psychiatrists, with one psychiatrist serving as the lead
member, from the pool.
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
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
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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)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.
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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.
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).)
8)Requires the treating psychiatrist to make efforts to obtain
informed consent from the defendant for antipsychotic
medication if the defendant consented to antipsychotic
medication, as described, but subsequently withdraws his or
her consent, or, if involuntary antipsychotic medication was
not ordered pursuant to clause (v) of subparagraph (B), and
the treating psychiatrist determines that antipsychotic
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medication has become medically necessary and appropriate.
(Pen. Code, � 1370, subd. (a)(2)(C).)
9)Requires the treating psychiatrist to certify whether the lack
of capacity and any applicable conditions, as described, exist
if informed consent is not obtained from the defendant and the
treating psychiatrist is of the opinion that the defendant
lacks capacity to make decisions regarding antipsychotic
medication based on specified conditions. Requires the
certification to contain an assessment of the current mental
status of the defendant and the opinion of the treating
psychiatrist that involuntary antipsychotic medication has
become medically necessary and appropriate. (Pen. Code, �
1370, subd. (a)(2)(C).)
10)Allows antipsychotic medication to be administered to the
defendant, if the treating psychiatrist certifies that the
medication has become medically necessary and appropriate, for
not more than 21 days, provided, however, that, within 72
hours of the certification, the defendant is provided a
medication review hearing before an administrative law judge
to be conducted at the facility where the defendant is
receiving treatment. (Pen. Code, � 1370, subd. (a)(2)(D)(i).)
11)Requires the treating psychiatrist to present the case for
the certification for involuntary treatment and the defendant
to be represented by an attorney or a patients' rights
advocate, who shall be appointed to meet with the defendant no
later than one day prior to the medication review hearing to
review the defendant's rights at the medication review
hearing, discuss the process, answer questions or concerns
regarding involuntary medication or the hearing, assist the
defendant in preparing for the hearing and advocating for his
or her interests at the hearing, review the panel's final
determination following the hearing, advise the defendant of
his or her right to judicial review of the panel's decision,
and provide the defendant with referral information for legal
advice on the subject. (Pen. Code, � 1370, subd.
(a)(2)(D)(i).)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "AB 2543 will
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provide the administrative flexibility to improve the patient
psychiatrist relationship in our state hospitals. This should
improve safety in the patient psychiatrist relationship and
allow for unbiased evaluation of the incompetent to stand
trial population in our state hospitals."
2)Background : According to the Legislative Analyst's Office
(LAO), "The state's five state hospitals-Atascadero, Coalinga,
Metropolitan, Napa, and Patton-provide treatment to a combined
patient population of over 5,000. ? State hospitals treat
patients under several forensic commitment classifications,
including Not Guilty by Reason of Insanity, Incompetent to
Stand Trial, [Sexually Violent Predators], and Mentally
Disordered Offenders." (LAO, The 2012-13 Budget: Oversight
and Accountability at State Hospitals (Mar. 1, 2012).)
Coinciding with the shift of the patient population in the
state hospitals, incidences of violence towards patients and
staff have increased. Since the death of a psychiatric
technician at the Napa State Hospital in October 2010, much
attention has been focused on the level of assaults on state
hospital staff and patients. (See Lee Romney, California
mental hospitals are dangerous, legislators told, L.A. Times
(Aug. 24, 2011).)
3)Treating Clinician-Patient Relationship : Existing law
requires the treating psychiatrist of a person committed to a
state hospital to regain competency to present the case for
certifying that involuntary administration of antipsychotic
medication has become medically necessary and appropriate to
treat the patient. (Pen. Code, � 1370, subd. (a)(2)(C).)
This certification triggers a statutorily-mandated
administrative hearing on the administration of this
medication (and a subsequent court hearing), and it is the
treating psychiatrist who is charged with presenting the case
for the involuntary treatment. (Pen. Code, � 1370, subd.
(a)(2)(D)(i). Requiring a treating psychiatrist to play a
leading role for the opposing side against his or her patient
in an adversarial proceeding invariably can strain the
clinician-patient relationship. It could jeopardize any trust
that the treating psychiatrist has built with his or her
patient. Moreover, when the relationship continues after the
proceedings, it could lead to animosity by the patient towards
the psychiatrist if he or she testifies contrary to what the
patient wants or makes an evaluation with which the patient
does not agree. In fact, in at least one instance, a patient
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assaulted his treating psychiatrist because of her evaluation,
resulting in the psychiatrist suffering long-term injury.
(Interview with the Asst. Director, Office of Legislation,
Dept. of State Hospitals (Apr. 24, 2014).) Additionally, by
having the treating clinician testify in the subsequent court
proceeding, which, in most instances, is in a county different
from the state hospital in which the psychiatrist works, he or
she must take time away from treating his or her other
patients to travel and be at the hearing.
This bill would help address these concerns by allowing, at
the discretion of the Director of State Hospitals, an
evaluation panel of non-treating psychiatrist with forensic
backgrounds to make the determination of the appropriateness
of the involuntary treatment and to take part in the resulting
hearing. By using the evaluation panels at these stages, the
treating psychiatrist would be allowed to maintain his or her
good standing with the patient and avoid disruption in the
treatment of his or her other patients.
4)Argument in Support : The Union of American Physicians and
Dentists states "AB 2543 seeks to create an improved mechanism
for diagnosing a defendant's mental status and placement
recommendations. ? UAPD/AFSCME encourages you to strongly
support this legislative effort."
5)Argument in Opposition : California Attorneys for Criminal
Justice states "This bill now defines ? a panel of state
hospital employees to make the panel. This is a problem
because the state hospitals are full and the state hospitals
are going to have control over how many (or how few)
clients/defendants are going to be determined as not guilty by
reason of insanity (NGI) under PC 1027 or who is incompetent
to stand trial (IST) under PPC 1369 and 1368."
6)Current Legislation :
a) 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.
AB 2186 is pending in the Assembly Committee on
Appropriations.
b) AB 2625 (Achadjian) would require the return to court,
as specified, of a defendant who was confined to a state
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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. AB 2625 is pending in the Assembly
Committee on Appropriations.
REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State, County and Municipal Employees
(Co-Sponsor)
Union of American Physicians and Dentists (Co-Sponsor)
Opposition
California Attorneys for Criminal Justice
California Public Defenders Association
Disability Rights California
Analysis Prepared by : Shaun Naidu / PUB. S. / (916) 319-3744