BILL NUMBER: AB 1800 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Thomson and Senator Perata
(Coauthors: Assembly Members Alquist, Dutra, Kuehl, Lempert,
Mazzoni, Soto, and Washington)
JANUARY 27, 2000
An act to amend Section 2600 of the Penal Code, and to amend
Sections 5008, 5250, 5256.5, 5256.6, 5257, 5259.3, 5270.15, 5270.55,
5300, 5301, 5304, 5331, and 5350 of, to repeal Sections 5325.2, 5332,
5333, 5334, and 5336 of, and to repeal and add Article 4.5
(commencing with Section 5260) of Chapter 2 of Part 1 of Division 5
of the Health and Safety Code, relating to health, and making an
appropriation therefor.
LEGISLATIVE COUNSEL'S DIGEST
AB 1800, as introduced, Thomson. Mental health.
Existing law, the Lanterman-Petris-Short Act, authorizes the
involuntary detention for a period of 72 hours for evaluation of
persons who are dangerous to self or others, or gravely disabled, as
defined. Existing law requires each person admitted to a facility
for 72-hour treatment and evaluation to receive an evaluation as soon
after he or she is admitted as possible and receive whatever
treatment and care his or her condition requires for the full period
that he or she is held. Existing law further provides that if a
person is detained for 72 hours or under court order for evaluation
and has received an evaluation, he or she may be certified for not
more than 14 days of intensive treatment related to the mental
disorder or impairment by chronic alcoholism if certain conditions
are met.
This bill would extend the 14-day period of intensive treatment to
28 days, and would make additional conforming changes.
Existing law also provides for a further period of intensive
treatment of 180 days after the expiration of the initial period of
intensive treatment if certain conditions exist.
This bill would extend that period of intensive treatment to one
year and would require that proof of the existence of these
conditions be made by clear and convincing evidence.
This bill would redefine the term gravely disabled for purposes of
the evaluation of persons to appraise their need for intensive
treatment.
Existing law requires that certain procedures be followed in all
cases of involuntary 14-day intensive treatment.
This bill would revise those requirements to, instead, provide for
the placement of certain persons committed for a 72-hour or 14-day
period in community assisted treatment programs, if specific
conditions exist, and would require that if the patient does not or
cannot abide by the terms of the treatment plan, he or she shall be
returned to inpatient treatment for the remaining days of the
underlying treatment certification.
This bill would appropriate $350,000,000 to the Controller for
allocation for the purposes of this bill.
Vote: 2/3. Appropriation: yes. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 2600 of the Penal Code is amended to read:
2600. A person sentenced to imprisonment in a state prison may
during that period of confinement be deprived of such rights, and
only such rights, as is reasonably related to legitimate penological
interests.
Nothing in this section shall be construed to permit the
involuntary administration of psychotropic medication unless the
process specified in the permanent injunction, dated October 31,
1986, in the matter of Keyhea v. Rushen, 178 Cal. App. 3d 526, has
been followed. In addition, the process shall reflect the
standard in the community for treatment, including the treatment of
persons who are gravely disabled, as that term is defined in
subdivision (h) of Section 5008 of the Welfare and Institutions Code,
and who are routinely provided with food, clothing, and shelter by
the penal institution. The judicial hearing for the
authorization for the involuntary administration of psychotropic
medication provided for in Part III of the injunction shall be
conducted by an administrative law judge. The hearing may, at the
direction of the director, be conducted at the facility where the
inmate is located.
Nothing in this section shall be construed to overturn the
decision in Thor v. Superior Court, 5 Cal. 4th 725.
SEC. 2. Section 5008 of the Welfare and Institutions Code is
amended to read:
5008. Unless the context otherwise requires, the following
definitions shall govern the construction of this part:
(a) "Evaluation" consists of multidisciplinary professional
analyses of a person's medical, psychological, educational, social,
financial, and legal conditions as may appear to constitute a
problem. Persons providing evaluation services shall be properly
qualified professionals and may be full-time employees of an agency
providing evaluation services or may be part-time employees or may be
employed on a contractual basis.
(b) "Court-ordered evaluation" means an evaluation ordered by a
superior court pursuant to Article 2 (commencing with Section 5200)
or by a court pursuant to Article 3 (commencing with Section 5225) of
Chapter 2.
(c) "Intensive treatment" consists of such hospital and other
services as may be indicated. Intensive treatment shall be provided
by properly qualified professionals and carried out in facilities
qualifying for reimbursement under the California Medical Assistance
Program (Medi-Cal) set forth in Chapter 7 (commencing with Section
14000) of Part 3 of Division 9, or under Title XVIII of the federal
Social Security Act and regulations thereunder. Intensive treatment
may be provided in hospitals of the United States government by
properly qualified professionals. Nothing in this part shall be
construed to prohibit an intensive treatment facility from also
providing 72-hour treatment and evaluation.
(d) "Referral" is referral of persons by each agency or facility
providing intensive treatment or evaluation services to other
agencies or individuals. The purpose of referral shall be to provide
for continuity of care, and may include, but need not be limited to,
informing the person of available services, making appointments on
the person's behalf, discussing the person's problem with the agency
or individual to which the person has been referred, appraising the
outcome of referrals, and arranging for personal escort and
transportation when necessary. Referral shall be considered complete
when the agency or individual to whom the person has been referred
accepts responsibility for providing the necessary services. All
persons shall be advised of available precare services which prevent
initial recourse to hospital treatment or aftercare services which
support adjustment to community living following hospital treatment.
These services may be provided through county welfare departments,
State Department of Mental Health, Short-Doyle programs or other
local agencies.
Each agency or facility providing evaluation services shall
maintain a current and comprehensive file of all community services,
both public and private. These files shall contain current
agreements with agencies or individuals accepting referrals, as well
as appraisals of the results of past referrals.
(e) "Crisis intervention" consists of an interview or series of
interviews within a brief period of time, conducted by qualified
professionals, and designed to alleviate personal or family
situations which present a serious and imminent threat to the health
or stability of the person or the family. The interview or
interviews may be conducted in the home of the person or family, or
on an inpatient or outpatient basis with such therapy, or other
services, as may be appropriate. Crisis intervention may, as
appropriate, include suicide prevention, psychiatric, welfare,
psychological, legal, or other social services.
(f) "Prepetition screening" is a screening of all petitions for
court-ordered evaluation as provided in Article 2 (commencing with
Section 5200) of Chapter 2, consisting of a professional review of
all petitions; an interview with the petitioner and, whenever
possible, the person alleged, as a result of mental disorder, to be a
danger to others, or to himself or herself, or to be gravely
disabled, to assess the problem and explain the petition; when
indicated, efforts to persuade the person to receive, on a voluntary
basis, comprehensive evaluation, crisis intervention, referral, and
other services specified in this part.
(g) "Conservatorship investigation" means investigation by an
agency appointed or designated by the governing body of cases in
which conservatorship is recommended pursuant to Chapter 3
(commencing with Section 5350).
(h) (1) For purposes of Article 1 (commencing with Section 5150),
Article 2 (commencing with Section 5200), and Article 4 (commencing
with Section 5250) of Chapter 2, and for the purposes of Chapter 3
(commencing with Section 5350), "gravely disabled" means either of
the following:
(A) A condition in which a person, as a result of a mental
disorder, is unable to provide for his or her basic personal needs
for food, clothing, or shelter.
(A) A condition in which a person, as a result of a mental
disorder, is unable to provide for his or her basic personal needs
for food, clothing, or shelter, or has a prior history of mental
illness and again presents clear evidence of a recurrence that poses
a serious risk of substantial deterioration that is likely to result
in serious harm to the person in the absence of treatment.
(B) A condition in which a person, has been found mentally
incompetent under Section 1370 of the Penal Code and all of the
following facts exist:
(i) The indictment or information pending against the defendant at
the time of commitment charges a felony involving death, great
bodily harm, or a serious threat to the physical well-being of
another person.
(ii) The indictment or information has not been dismissed.
(iii) As a result of mental disorder, the person is unable to
understand the nature and purpose of the proceedings taken against
him or her and to assist counsel in the conduct of his or her defense
in a rational manner.
(2) For purposes of Article 3 (commencing with Section 5225) and
Article 4 (commencing with Section 5250), of Chapter 2, and for the
purposes of Chapter 3 (commencing with Section 5350), "gravely
disabled" means a condition in which a person, as a result of
impairment by chronic alcoholism, is unable to provide for his or her
basic personal needs for food, clothing, or shelter.
(3) The term "gravely disabled" does not include mentally retarded
persons by reason of being mentally retarded alone.
(i) "Peace officer" means a duly sworn peace officer as that term
is defined in Chapter 4.5 (commencing with Section 830) of Title 3 of
Part 2 of the Penal Code who has completed the basic training course
established by the Commission on Peace Officer Standards and
Training, or any parole officer or probation officer specified in
Section 830.5 of the Penal Code when acting in relation to cases for
which he or she has a legally mandated responsibility.
(j) "Postcertification treatment" means an additional period of
treatment pursuant to Article 6 (commencing with Section 5300) of
Chapter 2.
(k) "Court," unless otherwise specified, means a court of record.
(l) "Antipsychotic medication" means any medication customarily
prescribed for the treatment of symptoms of psychoses and other
severe mental and emotional disorders.
(m) "Emergency" means a situation in which action to impose
treatment over the person's objection is immediately necessary for
the preservation of life or the prevention of serious bodily harm to
the patient or others, and it is impracticable to first gain consent.
It is not necessary for harm to take place or become unavoidable
prior to treatment.
SEC. 3. Section 5250 of the Welfare and Institutions Code is
amended to read:
5250. If a person is detained for 72 hours under the provisions
of Article 1 (commencing with Section 5150), or under court order for
evaluation pursuant to Article 2 (commencing with Section 5200) or
Article 3 (commencing with Section 5225) and has received an
evaluation, he or she may be certified for not more than 14
28 days of intensive treatment related to the
mental disorder or impairment by chronic alcoholism, under the
following conditions:
(a) The professional staff of the agency or facility providing
evaluation services has analyzed the person's condition and has found
the person is, as a result of mental disorder or impairment by
chronic alcoholism, a danger to others, or to himself or herself, or
gravely disabled.
(b) The facility providing intensive treatment is designated by
the county to provide intensive treatment, and agrees to admit the
person. No facility shall be designated to provide intensive
treatment unless it complies with the certification review hearing
required by this article. The procedures shall be described in the
county Short-Doyle plan as required by Section 5651.3
.
(c) The person has been advised of the need for, but has not been
willing or able to accept, treatment on a voluntary basis.
(d) (1) Notwithstanding paragraph (1) of subdivision (h) of
Section 5008, a person is not "gravely disabled" if that person can
survive safely without involuntary detention with the help of
responsible family, friends, or others who are both willing and able
to help provide for the person's basic personal needs for food,
clothing, or shelter.
(2) However, unless they specifically indicate in writing their
willingness and ability to help, family, friends, or others shall not
be considered willing or able to provide this help.
(3) The purpose of this subdivision is to avoid the necessity for,
and the harmful effects of, requiring family, friends, and others to
publicly state, and requiring the certification review officer to
publicly find, that no one is willing or able to assist the mentally
disordered person in providing for the person's basic needs for food,
clothing, or shelter.
SEC. 4. Section 5256.5 of the Welfare and Institutions Code is
amended to read:
5256.5. If at the conclusion of the certification review hearing
the person conducting the hearing finds that there is not probable
cause to believe that the person certified is, as a result of a
mental disorder or impairment by chronic alcoholism, a danger
to others, or to himself or herself, or gravely
disabled, and lacks the capacity to make informed decisions
regarding his or her own treatment, or a danger to others, then
the person certified may no longer be involuntarily detained.
Nothing herein in this section shall
prohibit the person from remaining at the facility on a voluntary
basis or the facility from providing the person with appropriate
referral information concerning mental health services.
SEC. 5. Section 5256.6 of the Welfare and Institutions Code is
amended to read:
5256.6. If at the conclusion of the certification review hearing
the person conducting the hearing finds that there is probable cause
that the person certified is, as a result of a mental disorder or
impairment by chronic alcoholism, a danger to others, or to
himself or herself, or gravely disabled, and lacks the
capacity to make informed decisions regarding his or her own
treatment, or a danger to others, then the person may be
detained for involuntary care, protection, and treatment related to
the mental disorder or impairment by chronic alcoholism pursuant to
Sections 5250 and 5270.15.
SEC. 6. Section 5257 of the Welfare and Institutions Code is
amended to read:
5257. During the period of intensive treatment pursuant to
Section 5250 or 5270.15, only if the psychiatrist directly
responsible for the person's treatment believes, as a result of his
or her personal observations, that the person certified no longer is,
as a result of mental disorder or impairment by chronic alcoholism,
a danger to others, or to himself or herself, or gravely disabled,
then the person's involuntary detention shall end and the person
shall be released. If any other professional person who is
authorized to release the person believes the person should be
released during the designated period of intensive treatment, and the
psychiatrist directly responsible for the person's treatment
objects, the matter shall be referred to the medical director of the
facility for the final decision. However, if the medical director is
not a psychiatrist, he or she shall appoint a designee who is a
psychiatrist. If the matter is referred, the person shall be
released during the period of intensive treatment only if the
psychiatrist making the final decision believes, as a result of his
or her personal observations, that the person certified no longer is,
as a result of mental disorder or impairment by chronic alcoholism,
a danger to others, or to himself or herself, or gravely disabled.
Nothing herein in this section shall
prohibit either the person remaining at the facility on a voluntary
basis or the facility from providing the person with appropriate
referral information concerning mental health services.
A person who has been certified for a period of intensive
treatment pursuant to Section 5250 shall be released at the end of
14 28 days unless the patient either:
(a) Agrees to receive further treatment on a voluntary basis.
(b) Is certified for an additional 14 days of intensive
180 days of community assisted outpatient
treatment pursuant to Article 4.5 (commencing with Section 5260).
(c) Is certified for an additional 30 days of intensive treatment
pursuant to Article 4.7 (commencing with Section 5270.10).
(d) Is the subject of a conservatorship petition filed pursuant to
Chapter 3 (commencing with Section 5350).
(e) Is the subject of a petition for Postcertification of an
Imminently Dangerous Person filed pursuant to Article 6 (commencing
with Section 5300).
SEC. 7. Section 5259.3 of the Welfare and Institutions Code is
amended to read:
5259.3. (a) Notwithstanding Section 5113, if the provisions of
Section 5257 have been met, the professional person in charge of the
facility providing intensive treatment, his or her designee, the
medical director of the facility or his or her designee described in
Section 5257, and the psychiatrist directly responsible for the
person's treatment shall not be held civilly or criminally liable for
any action by a person released before the end of 14
28 days pursuant to this article.
(b) The professional person in charge of the facility providing
intensive treatment, his or her designee, the medical director of the
facility or his or her designee described in Section 5257, and the
psychiatrist directly responsible for the person's treatment shall
not be held civilly or criminally liable for any action by a person
released at the end of the 14 28 days
pursuant to this article.
(c) The attorney or advocate representing the person, the
court-appointed commissioner or referee, the certification review
hearing officer conducting the certification review hearing, and the
peace officer responsible for the detainment of the person shall not
be civilly or criminally liable for any action by a person released
at or before the end of 14 28 days
pursuant to this article.
SEC. 8. Article 4.5 (commencing with Section 5260) of Chapter 2 of
Part 1 of Division 5 of the Welfare and Institutions Code is
repealed.
SEC. 9. Article 4.5 (commencing with Section 5260) is added to
Chapter 2 of Part 1 of Division 5 of the Welfare and Institutions
Code, to read:
Article 4.5. Community Assisted Outpatient Treatment Programs
5260. Persons committed pursuant to Sections 5150 and 5250 shall
be placed in community assisted outpatient treatment programs for 180
days if all of the following conditions exist:
(a) The treating physician thinks that he or she requires
continuing treatment and care under supervised conditions to maintain
and improve recovery and the person is sufficiently stable to
benefit from community placement.
(b) The person agrees to community assisted treatment.
(c) The person does not present an immediate harm to self or
others.
(d) A community assisted treatment program is available and
willing to accept the person.
(e) A community treatment plan is prepared by the treating
physician and the community treatment program and is agreed to by all
parties.
5261. In the event the patient does not or cannot abide by the
terms of the agreed upon community treatment plan, including
medication compliance, and the person poses a risk of substantial
deterioration, the person may be returned to inpatient treatment for
the remaining days of the underlying involuntary treatment
certification.
SEC. 10. Section 5270.15 of the Welfare and Institutions Code is
amended to read:
5270.15. Upon the completion of a 14-day
28-day period of intensive treatment pursuant to Section 5250,
the person may be certified for an additional period of not more than
30 days of intensive treatment under both of the following
conditions:
(a) The professional staff of the agency or facility treating the
person has found that the person remains gravely disabled as a result
of a mental disorder or impairment by chronic alcoholism.
(b) The person remains unwilling or unable to accept treatment
voluntarily.
Any person certified for an additional 30 days pursuant to this
article shall be provided a certification review hearing in
accordance with Section 5256 unless a judicial review is requested
pursuant to Article 5 (commencing with Section 5275).
The professional staff of the agency or facility providing
intensive treatment shall analyze the person's condition at intervals
of not to exceed 10 days, to determine whether the person continues
to meet the criteria established for certification under this
section, and shall daily monitor the person's treatment plan and
progress. Termination of this certification prior to the 30th day
shall be made pursuant to Section 5270.35.
SEC. 11. Section 5270.55 of the Welfare and Institutions Code is
amended to read:
5270.55. (a) Whenever it is contemplated that a gravely disabled
person may need to be detained beyond the end of the 14-day
28-day period of intensive treatment and prior
to proceeding with an additional 30-day certification, the
professional person in charge of the facility shall cause an
evaluation to be made, based on the patient's current condition and
past history, as to whether it appears that the person, even after up
to 30 days of additional treatment, is likely to qualify for
appointment of a conservator. If the appointment of a conservator
appears likely, the conservatorship referral shall be made during the
14-day 28-day period of intensive
treatment.
(b) If it appears that with up to 30 days additional treatment a
person is likely to reconstitute sufficiently to obviate the need for
appointment of a conservator, then the person may be certified for
the additional 30 days.
(c) Where no conservatorship referral has been made during the
14-day 28-day period and where during
the 30-day certification it appears that the person is likely to
require the appointment of a conservator, then the conservatorship
referral shall be made to allow sufficient time for conservatorship
investigation and other related procedures. If a temporary
conservatorship is obtained, it shall run concurrently with and not
consecutively to the 30-day certification period. The
conservatorship hearing shall be held by the 30th day of the
certification period. The maximum involuntary detention period for
gravely disabled persons pursuant to Sections 5150, 5250 and 5270.15
shall be limited to 47 61 days.
Nothing in this section shall prevent a person from
excercising exercising his or her right to a
hearing as stated in Sections 5275 and 5353.
SEC. 12. Section 5300 of the Welfare and Institutions Code is
amended to read:
5300. (a) At the expiration of the 14-day
28-day period of intensive treatment, a person
may be confined for further treatment pursuant to the provisions of
this article for an additional period, not to exceed 180 days
one year if it is proved by clear and
convincing evidence that one of the following exists:
(a)
(1) The person has attempted, inflicted, or made a serious
threat of substantial physical harm upon the person of another after
having been taken into custody, and while in custody, for evaluation
and treatment, and who, as a result of mental disorder or mental
defect, presents a demonstrated danger of inflicting substantial
physical harm upon others.
(b)
(2) The person had attempted, or inflicted physical harm
upon the person of another, that act having resulted in his or her
being taken into custody and who presents, as a result of mental
disorder or mental defect, a demonstrated danger of inflicting
substantial physical harm upon others.
(c)
(3) The person had made a serious threat of substantial
physical harm upon the person of another within seven days of being
taken into custody, that threat having at least in part resulted in
his or her being taken into custody, and the person presents, as a
result of mental disorder or mental defect, a demonstrated danger of
inflicting substantial physical harm upon others.
Any
(b) Any commitment to a licensed health facility under this
article places an affirmative obligation on the facility to provide
treatment for the underlying causes of the person's mental disorder.
Amenability
(c) Amenability to treatment is not required for a finding
that any person is a person as described in subdivisions
(a), (b), or (c) paragraph (1), (2), or (3) of
subdivision (a) . Treatment programs need only be made
available to these persons. Treatment does not mean that the
treatment be successful or potentially successful, and it does not
mean that the person must recognize his or her problem and willingly
participate in the treatment program.
SEC. 13. Section 5301 of the Welfare and Institutions Code is
amended to read:
5301. At any time during the 14-day
28-day intensive treatment period the professional person in
charge of the licensed health facility, or his or her designee, may
ask the public officer required by Section 5114 to present evidence
at proceedings under this article to petition the superior court in
the county in which the licensed health facility providing treatment
is located for an order requiring such the
person to undergo an additional period of treatment on the
grounds set forth in Section 5300. Such The
petition shall summarize the facts which
that support the contention that the person falls within
the standard set forth in Section 5300. The petition shall be
supported by affidavits describing in detail the behavior
which that indicates that the person falls
within the standard set forth in Section 5300.
Copies of the petition for postcertification treatment and the
affidavits in support thereof shall be served upon the person named
in the petition on the same day as they are filed with the clerk of
the superior court.
The petition shall be in the following form:
Petition for Postcertification Treatment of a Dangerous
Person
I, ____, (the professional person in charge of the ____ intensive
treatment facility) (the designee of ____ the professional person in
charge of the ____, treatment facility) in which ____ has been under
treatment pursuant to the certification by ____ and ____, hereby
petition the court for an order requiring ____ to undergo an
additional period of treatment, not to exceed 180 days, pursuant to
the provisions of Article 6 (commencing with Section 5300) of Chapter
2 of Part 1 of Division 5 of the Welfare and Institutions Code.
Such The petition is based upon my
allegation that (a) ____ has attempted, inflicted, or made a serious
threat of substantial physical harm upon the person of another after
having been taken into custody, and while in custody, for evaluation,
and that, by reason of mental disorder or mental defect, presents a
demonstrated danger of inflicting substantial physical harm upon
others, or that (b) ____ had attempted or inflicted physical harm
upon the person of another, that act having resulted in his or her
being taken into custody, and that he or she presents, as a result of
mental disorder or mental defect, a demonstrated danger of
inflicting substantial physical harm upon others, or that (c) ____
had made a serious threat of substantial physical harm upon the
person of another within seven days of being taken into custody, that
threat having at least in part resulted in his or her being taken
into custody, and that he or she presents, as a result of mental
disorder or mental defect, a demonstrated danger of inflicting
substantial physical harm upon others.
My allegation is based upon the following facts:
___________________________________________________
___________________________________________________
___________________________________________________
___________________________________________________
___________________________________________________
___________________________________________________
___________________________________________________
This allegation is supported by the accompanying affidavits signed
by ____________.
Signed __________________
The courts may receive the affidavits in evidence and may allow
the affidavits to be read to the jury and the contents thereof
considered in rendering a verdict, unless counsel for the person
named in the petition subpoenas the treating professional person. If
such the treating professional person
is subpoenaed to testify, the public officer, pursuant to Section
5114, shall be entitled to a continuance of the hearing or trial.
SEC. 14. Section 5304 of the Welfare and Institutions Code is
amended to read:
5304. (a) The court shall remand a person named in the petition
for postcertification treatment to the custody of the State
Department of Mental Health or to a licensed health facility
designated by the county of residence of that person for a further
period of intensive treatment not to exceed 180 days
one year from the date of court judgment, if the
court or jury finds , based on clear and convincing evidence,
that the person named in the petition for postcertification
treatment has done any of the following:
(1) Attempted, inflicted, or made a serious threat of substantial
physical harm upon the person of another after having been taken into
custody, and while in custody, for evaluation and treatment, and
who, as a result of mental disorder or mental defect, presents a
demonstrated danger of inflicting substantial physical harm upon
others.
(2) Attempted or inflicted physical harm upon the person of
another, that act having resulted in his or her being taken into
custody, and who, as a result of mental disorder or mental defect,
presents a demonstrated danger of inflicting substantial physical
harm upon others.
(3) Expressed a serious threat of substantial physical harm upon
the person of another within seven days of being taken into custody,
that threat having at least in part resulted in his or her being
taken into custody, and who presents, as a result of mental disorder
or mental defect, a demonstrated danger of inflicting substantial
physical harm upon others.
(b) The person shall be released from involuntary treatment at the
expiration of 180 days one year unless
the public officer, pursuant to Section 5114, files a new petition
for postcertification treatment on the grounds that he or she has
attempted, inflicted, or made a serious threat of substantial
physical harm upon another during his or her period of
postcertification treatment, and he or she is a person who by reason
of mental disorder or mental defect, presents a demonstrated danger
of inflicting substantial physical harm upon others. The new
petition for postcertification treatment shall be filed in the
superior court in which the original petition for postcertification
was filed.
(c) The county from which the person was remanded shall bear any
transportation costs incurred pursuant to this section.
SEC. 16. Section 5325.2 of the Welfare and Institutions Code is
repealed.
5325.2. Any person who is subject to detention pursuant to
Section 5150, 5250, 5260, or 5270.15 shall have the right to refuse
treatment with antipsychotic medication subject to provisions set
forth in this chapter.
SEC. 17. Section 5331 of the Welfare and Institutions Code is
amended to read:
5331. No person may be presumed to be incompetent because he or
she has been evaluated or treated for mental disorder or chronic
alcoholism, regardless of whether such evaluation or treatment was
voluntarily or involuntarily received. Any person who leaves a
public or private mental health facility following evaluation or
treatment for mental disorder or chronic alcoholism, regardless of
whether that evaluation or treatment was voluntarily or involuntarily
received, shall be given a statement of California law as stated in
this paragraph.
Any person who has been, or is, discharged from a state hospital
and received voluntary or involuntary treatment under former
provisions of this code relating to inebriates or the mentally ill
shall, upon request to the state hospital superintendent or the State
Department of Mental Health, be given a statement of California law
as stated in this section unless the person is found to be
incompetent under proceedings for conservatorship or guardianship.
Nothing in this section is intended to prohibit the treatment of
individuals who are involuntarily detained pursuant to Sections 5150
and 5250 while they are in an inpatient status. Any determination of
a person's incapacity shall remain in effect only for the duration
of the detention periods described in Section 5150 or 5250.
SEC. 18. Section 5332 of the Welfare and Institutions Code is
repealed.
5332. (a) Antipsychotic medication, as defined in subdivision (l)
of Section 5008, may be administered to any person subject to
detention pursuant to Section 5150, 5250, 5260, or 5270.15, if that
person does not refuse that medication following disclosure of the
right to refuse medication as well as information required to be
given to persons pursuant to subdivision (c) of Section 5152 and
subdivision (b) of Section 5213.
(b) If any person subject to detention pursuant to Section 5150,
5250, 5260, or 5270.15, and for whom antipsychotic medication has
been prescribed, orally refuses or gives other indication of refusal
of treatment with that medication, the medication shall only be
administered when treatment staff have considered and determined that
treatment alternatives to involuntary medication are unlikely to
meet the needs of the patient, and upon a determination of that
person's incapacity to refuse the treatment, in a hearing held for
that purpose.
(c) Each hospital in conjunction with the hospital medical staff
or any other treatment facility in conjunction with its clinical
staff shall develop internal procedures for facilitating the filing
of petitions for capacity hearings and other activities required
pursuant to this chapter.
(d) In the case of an emergency, as defined in subdivision (m) of
Section 5008, a person detained pursuant to Section 5150, 5250, 5260,
or 5270.15 may be treated with antipsychotic medication over his or
her objection prior to a capacity hearing, but only with
antipsychotic medication that is required to treat the emergency
condition, which shall be provided in the manner least restrictive to
the personal liberty of the patient. It is not necessary for harm
to take place or become unavoidable prior to intervention.
SEC. 19. Section 5333 of the Welfare and Institutions Code is
repealed.
5333. (a) Persons subject to capacity hearings pursuant to
Section 5332 shall have a right to representation by an advocate or
legal counsel. "Advocate," as used in this section, means a person
who is providing mandated patients' rights advocacy services pursuant
to Chapter 6.2 (commencing with Section 5500), and this chapter. If
the Department of Mental Health provides training to patients'
rights advocates, that training shall include issues specific to
capacity hearings.
(b) Petitions for capacity hearings pursuant to Section 5332 shall
be filed with the superior court. The director of the treatment
facility or his or her designee shall personally deliver a copy of
the notice of the filing of the petition for a capacity hearing to
the person who is the subject of the petition.
(c) The mental health professional delivering the copy of the
notice of the filing of the petition to the court for a capacity
hearing shall, at the time of delivery, inform the person of his or
her legal right to a capacity hearing, including the right to the
assistance of the patients' rights advocate or an attorney to prepare
for the hearing and to answer any questions or concerns.
(d) As soon after the filing of the petition for a capacity
hearing is practicable, an attorney or a patients' rights advocate
shall meet with the person to discuss the capacity hearing process
and to assist the person in preparing for the capacity hearing and to
answer questions or to otherwise assist the person, as is
appropriate.
SEC. 20. Section 5334 of the Welfare and Institutions Code is
repealed.
5334. (a) Capacity hearings required by Section 5332 shall be
heard within 24 hours of the filing of the petition whenever
possible. However, if any party needs additional time to prepare for
the hearing, the hearing shall be postponed for 24 hours. In case
of hardship, hearings may also be postponed for an additional 24
hours, pursuant to local policy developed by the county mental health
director and the presiding judge of the superior court regarding the
scheduling of hearings. The policy developed pursuant to this
subdivision shall specify procedures for the prompt filing and
processing of petitions to ensure that the deadlines set forth in
this section are met, and shall take into consideration the
availability of advocates and the treatment needs of the patient. In
no event shall hearings be held beyond 72 hours of the filing of the
petition. The person who is the subject of the petition and his or
her advocate or counsel shall receive a copy of the petition at the
time it is filed.
(b) Capacity hearings shall be held in an appropriate location at
the facility where the person is receiving treatment, and shall be
held in a manner compatible with, and the least disruptive of, the
treatment being provided to the person.
(c) Capacity hearings shall be conducted by a superior court
judge, a court-appointed commissioner or referee, or a
court-appointed hearing officer. All commissioners, referees, and
hearing officers shall be appointed by the superior court from a list
of attorneys unanimously approved by a panel composed of the local
mental health director, the county public defender, and the county
counsel or district attorney designated by the county board of
supervisors. No employee of the county mental health program or of
any facility designated by the county and approved by the department
as a facility for 72-hour treatment and evaluation may serve as a
hearing officer. All hearing officers shall receive training in the
issues specific to capacity hearings.
(d) The person who is the subject of the capacity hearing shall be
given oral notification of the determination at the conclusion of
the capacity hearing. As soon thereafter as is practicable, the
person, his or her counsel or advocate, and the director of the
facility where the person is receiving treatment shall be provided
with written notification of the capacity determination, which shall
include a statement of the evidence relied upon and the reasons for
the determination. A copy of the determination shall be submitted to
the superior court.
(e) (1) The person who is the subject of the capacity hearing may
appeal the determination to the superior court or the court of
appeal.
(2) The person who has filed the original petition for a capacity
hearing may request the district attorney or county counsel in the
county in which the person is receiving treatment to appeal the
determination to the superior court or the court of appeal, on behalf
of the state.
(3) Nothing shall prohibit treatment from being initiated pending
appeal of a determination of incapacity pursuant to this section.
(4) Nothing in this section shall be construed to preclude the
right of a person to bring a writ of habeas corpus pursuant to
Section 5275, subject to the provisions of this chapter.
(f) All appeals to the superior court pursuant to this section
shall be subject to de novo review.
SEC. 21. Section 5336 of the Welfare and Institutions Code is
repealed.
5336. Any determination of a person's incapacity to refuse
treatment with antipsychotic medication made pursuant to Section 5334
shall remain in effect only for the duration of the detention period
described in Section 5150 or 5250, or both, or until capacity has
been restored according to standards developed pursuant to
subdivision (c) of Section 5332, or by court determination, whichever
is sooner.
SEC. 22. Section 5350 of the Welfare and Institutions Code is
amended to read:
5350. A conservator of the person, of the estate, or of the
person and the estate may be appointed for any person who is gravely
disabled as a result of mental disorder or impairment by chronic
alcoholism.
The procedure for establishing, administering, and terminating a
conservatorship under this chapter shall be the same as that provided
in Division 4 (commencing with Section 1400) of the Probate Code,
except as follows:
(a) A conservator may be appointed for a gravely disabled minor.
(b) (1) Appointment of a conservator under this part, including
the appointment of a conservator for a person who is gravely
disabled, as defined in subparagraph (A) of paragraph (1) of
subdivision (h) of Section 5008, shall be subject to the list of
priorities in Section 1812 of the Probate Code unless the officer
providing conservatorship investigation recommends otherwise to the
superior court.
(2) In appointing a conservator, as defined in subparagraph (B) of
paragraph (1) of subdivision (h) of Section 5008, the court shall
consider the purposes of protection of the public and the treagtment
of the conservatee.
(c) No conservatorship of the estate pursuant to this chapter
shall be established if a conservatorship or guardianship of the
estate exists under the Probate Code. When a gravely disabled person
already has a guardian or conservator of the person appointed under
the Probate Code, the proceedings under this chapter shall not
terminate the prior proceedings but shall be concurrent with and
superior thereto. The superior court may appoint the existing
guardian or conservator of the person or another person as
conservator of the person under this chapter.
(d) The person for whom conservatorship is sought shall have the
right to demand a court or jury trial on the issue whether he or she
is gravely disabled. The issue shall be proved by clear and
convincing evidence. Demand for court or jury trial shall be
made within five days following the hearing on the conservatorship
petition. If the proposed conservatee demands a court or jury trial
before the date of the hearing as provided for in Section 5365, the
demand shall constitute a waiver of the hearing.
Court or jury trial shall commence within 10 days of the date of
the demand, except that the court shall continue the trial date for a
period not to exceed 15 days upon the request of counsel for the
proposed conservatee.
This right shall also apply in subsequent proceedings to
reestablish conservatorship.
(e) (1) Notwithstanding subparagraph (A) of paragraph (1) of
subdivision (h) of Section 5008, a person is not "gravely disabled"
if that person can survive safely without involuntary detention with
the help of responsible family, friends, or others who are both
willing and able to help provide for the person's basic personal
needs for food, clothing, or shelter.
(2) However, unless they specifically indicate in writing their
willingness and ability to help, family, friends, or others shall not
be considered willing or able to provide this help.
(3) The purpose of this subdivision is to avoid the necessity for,
and the harmful effects of, requiring family, friends, and others to
publicly state, and requiring the court to publicly find, that no
one is willing or able to assist the mentally disordered person in
providing for the person's basic needs for food, clothing, or
shelter.
(4) This subdivision does not apply to a person who is gravely
disabled, as defined in subparagraph (B) of paragraph (1) of
subdivision (h) of Section 5008.
(f) Conservatorship investigation shall be conducted pursuant to
this part and shall not be subject to Section 1826 or Chapter 2
(commencing with Section 1850) of Part 3 of Division 4 of the Probate
Code.
(g) Notice of proceedings under this chapter shall be given to a
guardian or conservator of the person or estate of the proposed
conservatee appointed under the Probate Code.
(h) As otherwise provided in this chapter.
SEC. 23. The sum of three hundred fifty million dollars
($350,000,000) is appropriated from the General Fund to the
Controller for allocation for the purposes of this act.