BILL ANALYSIS
AB 1800
Page 1
Date of Hearing: March 28, 2000
ASSEMBLY COMMITTEE ON HEALTH
Martin Gallegos, Chair
AB 1800 (Thomson) - As Amended: March 23, 2000
SUBJECT : Mental Health: Involuntary Treatment.
SUMMARY : Expands the conditions and the length of time for
which a person may be involuntarily detained and treated for
mental illness. Specifically, this bill :
1)Expands the existing law definition of "gravely disabled,"
from indicating 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, to mean a person
who meets these criteria or who presents, as a result of a
mental disorder, an acute risk of physical or psychiatric harm
to the person in the absence of treatment .
2)Broadens the existing law definition of available family
support that is necessary to exclude a person from being
considered gravely disabled. Provides that 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, and who are willing and able to assist
the person in meeting his or her medical and psychiatric
needs .
3)Expands, from 14 days, to 28 days, the length of time for
which a person may be certified and detained for treatment
following an initial 72-hour hold. Repeals existing provision
for a second 14 day certification for suicidal persons.
4)Requires a hearing officer to find probable cause to believe
that the person certified should be involuntarily detained, to
detain that person for involuntary care, protection and
treatment related to the mental disorder or chronic alcoholism
for which the person is detained.
5)Requires, if a person who is certified for involuntary
treatment refuses psychotropic medication, the certification
hearing officer to determine whether the person lacks the
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capacity to make an informed refusal of treatment. Permits
the certified person to be treated with medications without
consent during the certification period if the hearing officer
determines that the person lacks capacity to refuse treatment.
6)Provides the right to judicial review of the detention and
capacity decisions at the request of the patient. Requires
that unless good cause is shown to the contrary, all hearings
relative to a patient's capacity to refuse treatment by
psychotropic medications shall be heard concurrently with the
judicial review of the patient's detention.
7)Provides that if the hearing officer determines that the
patient does not lack capacity to refuse treatment by
psychotropic medications, judicial review of the decision may
be initiated by the director of the treating health facility.
8)Requires, if a person is certified for treatment, the treating
agency or facility to acquire the patient's medication
history.
9)Provides that a person may be certified for another 180 days
of community assisted outpatient treatment following an
initial 28 days of detention following an initial 72-hour hold
plus the 28-day detention period.
10)Requires persons committed due to grave disability,
dangerousness, or chronic alcoholism to be placed in community
assisted outpatient treatment programs for 180 days if all of
the following conditions exist:
a) A hearing officer finds that the patient requires
continuing treatment and care under supervised conditions
to maintain and improve recovery and the person is
sufficiently stable to benefit from community treatment in
an appropriate, unlocked setting;
b) The person agrees to community outpatient treatment;
c) The person does not present an immediate harm to self or
others.
d) A community treatment plan is prepared by the
multidisciplinary outpatient treatment team and is agreed
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to by all parties.
11)Permits persons to voluntarily access these outpatient
services that others may be placed in involuntarily, if
certain conditions are met.
12)Specifies the elements required to be included in a community
assisted outpatient treatment program, including a
multidisciplinary provider team, a current or former mental
health client who will coordinate all services provided to the
client, and help with obtaining other forms of assistance,
including financial help and housing.
13)Permits an outpatient to be returned to inpatient treatment
(by court order), for the remaining days of the certification
if the patient does not or cannot abide by the terms of the
agreed upon community treatment plan, including medication
compliance, and the person poses an acute risk of physical or
psychiatric deterioration.
14)Eliminates requirement that a capacity hearing be conducted
by a superior court judge, a court appointed commissioner or
referee, or court appointed hearing officer, and instead
requires that those hearings be conducted by a certification
review hearing officer, as specified.
15)Requires a hospital to develop internal procedures to
petition for capacity hearing for patients who have not
already been determined to lack capacity.
16)Expands the maximum involuntary detention period prior to
conservatorship for gravely disabled persons from 47, to 61,
days (72-hour hold, plus 28 day certification, plus 30 day
temporary conservatorship).
17)Expands the maximum involuntary detention period for
dangerous persons, from 180 days to one year.
18)Reduces standard of proof from beyond a reasonable doubt to
clear and convincing evidence to establish that someone is
gravely disabled, in both conservatorship and
postcertification cases.
19)Requires utilization of the new gravely disabled standard for
people with mental illness in state prisons.
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20)Appropriates $350 million from the General Fund to the
Department of Mental Health, for allocation to those counties
that implement a community assisted outpatient program
pursuant to this act. Permits up to 25 percent of each
qualifying county's share to be used for short-term outpatient
services if it is deemed appropriate by the county department
of mental health to ensure the availability of the appropriate
level of mental health treatment services.
EXISTING LAW :
1)Expresses legislative intent to provide prompt evaluation and
treatment of persons with serious mental disorders, to protect
public safety and to safeguard individual rights through
judicial review, and to end the inappropriate, indefinite, and
involuntary commitment of mentally disordered persons.
2)Provides that a person may be taken into custody for a 72-hour
evaluation and treatment period, upon demonstration of
probable cause that the person, as a result of a mental
disorder, is a danger to others or him/her self, or is gravely
disabled.
3)Defines "gravely disabled" generally as a condition in which a
person, as a result of a mental disorder, is unable to provide
for his or her basic needs for food, clothing or shelter.
4)Provides that a person is not gravely disabled if that person
can survive safely 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.
5)Provides that a person may be certified and detained for not
more than 14 days of intensive treatment if the hospital staff
has found that the person is a danger to self or others, or
gravely disabled, and the person has been advised of the need
for, but has not been willing or able to accept, treatment on
a voluntary basis.
6)Grants a detainee the right to a certification review hearing,
to be held within four days of the date on which the person is
certified for intensive treatment, to determine whether or not
probable cause exists to continue to detain the person. The
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person may no longer be detained if the certification hearing
officer finds that there is not probable cause to believe that
the person is a danger to self/others, or gravely disabled.
Also grants the detainee the legal right to judicial review by
habeas corpus.
7)Requires a person certified for intensive treatment to be
released at the end of 14 days unless the patient either
(sic):
a) Agrees to receive further treatment on a voluntary
basis.
b) Is certified for an additional 14 days of intensive
treatment because the person threatened or attempted
suicide during the 14 days or the initial 72-hour hold, the
person has not accepted treatment, and the person poses an
imminent threat of suicide.
c) Is certified for an additional 30 days of intensive
treatment because the person remains gravely disabled due
to a mental disorder or chronic alcoholism, and remains
unwilling or unable to accept treatment.
d) Is the subject of a conservatorship petition.
e) Is the subject of a petition for postcertification as an
imminently dangerous person.
8)Provides that a person may be postcertified for up to 180 days
following 14 days of intensive treatment if the person is
dangerous to others, as specified.
FISCAL EFFECT : Unknown. This bill appropriates $350 million
in 2000-2001 from the General Fund to the Controller for
implementation of this act.
COMMENTS :
1)PURPOSE OF THIS BILL . The author proposes to revise the
existing involuntary treatment law and provide $350 million
for earlier intervention for those who have a history of
mental illness in order to give mentally ill persons access to
timely, more effective treatment. The author intends to
streamline the hearing process to combine in one hearing both
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determinations for the need for commitment and the capacity to
consent to or refuse treatment. Eight other states have
enacted laws to provide structured, supervised assisted
outpatient treatment programs for the severely mentally ill,
the most recent of which is Kendra's Law in New York. The
author asserts it is past time for California to provide more
effective and humane treatment and commitment laws for its
residents.
2)SUPPORT . Supporters of this bill include the California
Psychiatric Association (the Psychiatric Association), the
National Alliance for the Mentally Ill (NAMI California), the
California State Sheriffs Association (CSSA), and the County
of Los Angeles. The Psychiatric Association argues that this
bill will save suffering, time and expense by consolidating
into one hearing the issues of whether a person meets the
criteria for involuntary commitment, and whether the person
does or does not have the capacity to consent to medication.
The Psychiatric Association notes that persons with serious
mental illness can frequently function well when treated, and
deteriorate badly in the absence of treatment. The
Psychiatric Association notes that there are too many examples
of cases where a person did not appear to be sufficiently
deteriorated for a short period of time, was not detained or
was prematurely released, and then committed murder or
suicide. Finally, the Psychiatric Association notes that a
recent Duke University study indicates that for outpatient
treatment to be effective, it must be at least 180 days in
duration, and that one year is even more effective. NAMI
California argues that the Lanterman Petris Short (LPS) Act
does not provide sufficient protections for the mentally ill,
relegating them to a revolving door pattern of
hospitalization, criminalization and homelessness. NAMI
California hopes that this bill will be enacted to provide
earlier intervention to improve prognoses, lower the long-term
cost of care, and save lives. CSSA points to the large
percentage of incarcerated persons who suffer from mental
illness, and notes that the intent of the LPS Act was to shift
the focus from inpatient involuntary care to community care
settings. Yet, the problem of mentally ill persons continued
to grow as community services were shrinking. CSSA argues
that this bill shifts the focus back to the medical
professionals who are trained to identify and treat mental
illness. Los Angeles County notes that this bill's
appropriation recognizes that additional state funds are
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necessary to modify California's mental health system.
3)OPPOSITION . Organizations opposing this bill include the
California Mental Health Planning Council (Planning Council),
the California Network of Mental Health Clients (Network of
Mental Health Clients), the California Psychological
Association (the Psychological Association) and the California
Association of Mental Health Patients' Rights Advocates
(CAMHPRA). The Coalition Advocate for Rights, Empowerment and
Services (CARES), consisting of CAMHPRA, the California
Association of Social Rehabilitation Agencies, the Network of
Mental Health Clients and Protection and Advocacy, issued a
joint analysis and statement in opposition to this bill. CARES
contends that this bill institutes a vague and broad
definition of grave disability that provides for the
confinement of mentally ill persons to raise their standards
of living, a purpose repeatedly rejected by the courts as
constitutionally inadequate. CARES notes that in
Conservatorship v. Smith (187 Cal. App. 3d 903), the
California Court of Appeal opined that "(b)izarre or eccentric
behavior, even if it interferes with a person's normal
intercourse with society, does not rise to a level warranting
a conservatorship except where such behavior renders the
individual helpless to fend for herself or destroys her
ability to meet those basic needs for survival. Only then
does the interest of the state override her individual liberty
interest."
The Mental Health Planning Council agrees that many aspects of
the mental health system should be reformed, and believes that
the recently established Joint Committee on Mental Health
Reform will be an excellent forum for identifying needed
system reforms and for expanding treatment resources. The
Planning Council recently sponsored approximately 40 public
forums to examine how to address different aspects of mental
health system reform. The Planning Council notes that themes
developed at these forums are being addressed through
legislation such as AB 2034 (Steinberg) and SB 1464 (Johnson)
which expand the provision of outreach and comprehensive
mental health services. SB 1770 (Chesbro) provides for
advance directives and discharge planning. The Network of
Mental Health Clients argues that enhanced voluntary services,
not the expansion of forced treatment, is the answer to mental
suffering. The Network points to a recent U.S. Surgeon
General report, which states, "One point is clear: the need
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for coercion should be reduced significantly when adequate
services are readily accessible to individuals with severe
mental disorders who pose a threat of danger to themselves or
others." The Network is concerned that the subjective
criteria for commitment in this bill, coupled with the
reduction of due process safeguards, will return California to
abuse of civil commitment and the violation of civil rights as
occurred prior to enactment of the LPS Act.
4)THE DILEMMA: DELUSIONAL BUT NOT DISABLED . Under the current
law standard, a person may only be considered gravely disabled
and eligible for involuntary treatment if that person is
unable to provide for his or her basic needs for food,
clothing and shelter. Further, a person may not be considered
gravely disabled if that person can survive and meet these
needs with the assistance of friends and family members. This
bill provides that for a person not to be considered gravely
disabled, the family members must also be willing to assist
the mentally ill person to meet medical and psychiatric needs.
This provision is intended to help a person who may be living
with family, but not receiving needed attention for mental
health needs.
Families and other caregivers often bear a tremendous burden
of caring for mentally ill persons who are alternately
unstable or functional without sufficient community or
clinical support. For example, someone might be schizophrenic
and delusional, but if that person has an involved family, or
can otherwise obtain food, clothing and shelter, current law
does not provide for involuntary treatment that could help
that person function at a higher level. The policy challenge,
in part, is how to afford such a person effective treatment
while safeguarding against unnecessary or unconstitutional
infringement of individual liberties.
5)STANDARDS VARY - REQUIRE EVALUATION, ACCOUNTABILITY . One may
enjoy differing standards of due process rights and access to
treatment according to one's location in California. For
example, a county may adhere to a very limited application of
the gravely disabled standard due to pressures against
spending limited resources on mental health treatment, or due
to limited resources for hospitalization. Similarly, there
might be more incentives to hospitalize a person in a county
where community based services are negligible. The committee
should amend this bill to require the Department of Mental
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Health to evaluate the implementation of current LPS
standards. Following such an evaluation, the Legislature may
wish to consider training those who are involved in the
involuntary commitment process at the local level, funding
additional treatment services, including help for those with
dual diagnoses of mental illness and substance abuse, and
developing a mechanism for holding counties accountable for
implementation of LPS standards and ensuring that mentally ill
persons receive sufficient treatment.
6)DECREASING BURDEN OF PROOF . This bill weakens the standard of
proof needed to establish a conservatorship from beyond a
reasonable doubt, which is the current case law standard in
California, to clear and convincing evidence. It is unclear
whether this differing standard of proof would be considered
constitutional under federal and state prohibitions against
depriving a person of liberty without due process and equal
protection under the law. Although states possess the right
to act paternally to protect those who are unable to care for
themselves, the power to restrict individual liberties has
also been limited in case law to permitting states to
accomplish public health goals by the least restrictive means
possible. This bill also eliminates the requirement that a
separate hearing take place to determine if a person who is
involuntarily committed has the capacity to provide informed
consent, and thereby agree to or refuse, medication. Under
current law, a psychiatric hospital must petition for a
capacity hearing before administering medication without
patient consent.
7)MENTAL HEALTH MILESTONES: A HISTORY OF UNDER-FUNDING . The
Legislative Analyst's Office recently issued Major Milestones:
43 Years of Care and Treatment of the Mentally Ill , a report
detailing policy and fiscal changes in California's public
mental health system. This report further delineates the
enactment of the LPS Act in 1968 and the funding shortfalls
for both inpatient and community outpatient mental health
services in the following decades.
8)APPROPRIATE SERVICE MIX ? This bill appropriates $350 million
in General Fund dollars to DMH in 2000-2001. Up to 25 percent
of each county's share of this money may be used for
short-term outpatient services if deemed appropriate by the
county department of mental health to ensure availability of
the appropriate level of services. This means that 75 percent
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or more of the funds provided in this bill will be set aside
for inpatient treatment. It is unclear whether this is the
appropriate mix of uses for these funds. There may be
overwhelming needs for funding of both levels of services.
While inpatient services are generally more expensive than
outpatient treatment, this bill does specify that the funds
may only be allocated to those counties that implement
community assisted outpatient treatment. If these funds are
only for those who develop outpatient programs, then perhaps
the funds should go primarily to outpatient treatment. This
bill should ensure that the funds appropriated are well-placed
to match clearly stated policy goals.
9)SUCCESSFUL COMMUNITY CARE MODEL . The community assisted
treatment programs prescribed in this bill are based upon a
successful Program of Assertive Community Treatment (PACT)
model of care, in which multidisciplinary teams treat persons
in the community intensively by adapting to where the patients
are and providing treatment in nontraditional settings -
parks, restaurants, homes and offices - rather than the
hospital. This program was established in Wisconsin by an
inpatient team who believed that patients would fare better in
the community if they had access to 24-hour, outpatient care.
The PACT model has been found to reduce hospitalization,
decrease unemployment among those treated, and increase
patient satisfaction with life. However, evaluation of the
PACT program has also affirmed that severe mental illness is
often a long-term, chronic illness, since considerable
diminution of treatment gains was observed in clients upon
discharge from the program.
10)DISCHARGE PLANNING NEEDED . This bill attempts to ensure
continuity of care for the mentally ill, especially indigents,
who currently have involuntary inpatient, or minimal or no
community care, available. A lack of community resources
likely contributes to cycles of recurrent hospitalization for
some mentally ill persons, who essentially have the option of
inpatient, or virtually no care at all. This bill provides
that persons who are released to community care on the
condition of treatment compliance will receive a
multidisciplinary complement of services following release
from hospitalization. It also provides, but does not
guarantee, that individuals may access these services
voluntarily. The author may wish to further specify that such
discharge planning must occur for all patients being released
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from the hospital, not just for those who were either admitted
involuntarily or those who seek these services.
11)MENTAL HEALTH CLIENT EXPEDITOR . This bill requires the
inclusion of an assisted outpatient care expeditor who is a
current or formal mental health client, to coordinate
outpatient services. It is unclear whether the author also
intends for this person to meet other requirements, such as
being a trained counselor or mental health provider, in
addition to meeting the qualification of having received
mental health services. There may be other, more appropriate
means for including mental health clients in treatment
planning.
12)RE-COMMITMENT PROCESS UNSPECIFIED . This bill provides that a
person may be re-committed by court order to inpatient
treatment if the person does not or cannot abide by the terms
of a community treatment plan, and that person poses an acute
risk of physical or psychiatric deterioration. It is unclear
what court process must be followed in order to commit a
person to inpatient care under these circumstances. Should
this bill pass out of this committee, the Committee on
Judiciary may wish to address this issue so that patients are
afforded reasonable due process rights prior to being
re-committed to inpatient care.
13)GRAVELY DISABLED STANDARD - PSYCHIATRIC HARM . This bill
revises the gravely disabled standard to include a person who
presents, as a result of a mental disorder, an acute risk of
physical or psychiatric harm to the person in the absence of
treatment. It is unclear what would be considered
"psychiatric harm" and the author may wish to clarify the
meaning of this term.
14)BLOOD AND URINE TESTING NOT ALWAYS NECESSARY . This bill
provides that a community outpatient treatment plan shall
include a number of components, including blood and urine
testing to check compliance. The author should insert a
technical amendment here to indicate that such testing shall
only occur if indicated or deemed necessary.
15)DRAFTING CONCERN: COMMUNITY ASSISTED TREATMENT . This bill
requires establishment of a treatment plan agreed upon by "all
parties." It is unclear who the parties might be, and whether
those parties include particular medical staff, the patient,
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or the patient's involved family members.
16)RELATED LEGISLATION . At least 27 bills relating to mental
health are pending before the Legislature. These proposals
address subjects including mentally disordered adults and
children, school intervention and prevention, police officer
training, patient advocacy, suicide treatment and prevention,
advance directives, discharge planning, mental health courts,
dual diagnoses of mental illness and substance abuse, and
funding for outreach and treatment services. As these bills
move through the legislative process, amendments will be
necessary to avoid policy conflicts and chaptering problems.
The Health Committee should reserve the option of retrieving
to committee any bills that do not resolve such conflicts.
17)DOUBLE REFERRAL . Should this bill pass out of this
committee, it will be referred to the Committee on Judiciary.
REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State County and Municipal Employees
California Child, Youth and Family Coalition
California Clients for Lanterman Petris Short Reform
California Psychiatric Association
California State Sheriffs' Association
California Treatment Advocacy Coalition
Citrus Valley Health Partners
County of Los Angeles
Family Alliance for the Mentally Ill, Southern Santa Barbara
Los Angeles County Alliance for the Mentally Ill
Los Angeles County Police Chiefs Association
Memorial Counseling and Psychiatric Services
National Alliance for the Mentally Ill, California
National Alliance for the Mentally Ill, East San Gabriel Valley
National Alliance for the Mentally Ill, Nevada County
National Alliance for the Mentally Ill, Orange County
National Alliance for the Mentally Ill, San Bernardino
National Alliance for the Mentally Ill, San Diego
National Alliance for the Mentally Ill, San Luis Obispo
National Alliance for the Mentally Ill, San Mateo
National Alliance for the Mentally Ill, Santa Clara County
National Alliance for the Mentally Ill Veterans Committee
New York Treatment Advocacy Coalition
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Pomona Valley Alliance for the Mentally Ill
Saint Charles Church Outreach Committee
Santa Barbara Mental Health Association
Stanley Foundation Research Programs
Treatment Advocacy Center
Numerous individuals
Opposition
Alameda County Network of Mental Health Clients
California Association of Mental Health Patients' Rights
Advocates
California Association of Social Rehabilitation Agencies
California Mental Health Planning Council
California Network of Mental Health Clients
California Public Defenders Association
California Psychological Association
Citizens Commission on Human Rights, Sacramento
Coalition on Homelessness, San Francisco
Consumers Self-help Center
Disability Rights Advocates
Homeless Action Center
Instant Court Reporting
Legal Aid Society of San Francisco
LeRoy Chiropractic
Mental Health Association of San Francisco
Mental Health Consumer Concerns
National Association for Rights Protection and Advocacy
Project Return: The Next Step
Protection and Advocacy, Inc.
Quinto Farms
Residential Specialists, Inc.
Silva Construction
Theta Engineering
Vermeer Enterprises
Numerous individuals
Analysis Prepared by : Ann Blackwood / HEALTH / (916) 319-2097