Bill Text: CA AB1114 | 2011-2012 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Inmates: involuntary administration of psychotropic

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Passed) 2011-10-09 - Chaptered by Secretary of State - Chapter 665, Statutes of 2011. [AB1114 Detail]

Download: California-2011-AB1114-Amended.html

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BILL NUMBER: AB 1114	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  APRIL 6, 2011

INTRODUCED BY   Assembly Member Bonnie Lowenthal

                        FEBRUARY 18, 2011

   An act to amend Section 2600 of, and to add Section 2602 to, the
Penal Code, relating to inmates.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 1114, as amended, Bonnie Lowenthal. Inmates: involuntary
administration of psychotropic medications.
   Existing law provides that a person sentenced to imprisonment in a
state prison may be deprived of rights only as is reasonably related
to legitimate penological interests. Existing law states that
nothing in this provision shall be construed to permit the
involuntary administration of psychotropic medication unless the
process specified in Keyhea v. Rushen (1986) 178 Cal.App.3d 526 has
been followed. Existing law further requires that this process be
conducted by an administrative law judge.
   This bill would delete the provision regarding the medication
process specified in Keyhea v. Rushen. The bill would instead provide
that no inmate shall be administered psychotropic medication  on
a nonemergency basis  without the inmate's informed consent,
unless  after  a noticed hearing is conducted in which an
administrative law judge determines by clear and convincing evidence
that the inmate  suffers from   has  a
mental illness or disorder, that  as a result of that illness
 the inmate is  or is likely to become  gravely
disabled  and lacks the capacity to consent or refuse treatment
 or  is  a danger to self or others  if not
medicated, that there is no less intrusive alternative to involuntary
medication  , and that the medication is in the inmate's best
medical interest.  The 
    The bill would provide that it is not intended to prohibit a
physician from taking appropriate action in an emergency, as
specified, and would require notice of a   hearing to be
filed with the Office of Administrative Hearings within 72 hours of
administering medication on an emergency basis. When medication is
administered on an emergency basis, the bill   would require
the hearing to commence within 21 days of the filing.  The bill
would provide that  this determination   an
order providing for the involuntary administration of psychotropic
medication  shall be valid for one year from the date the
determination is made  , and that the order may be renewed
annually at subsequent hearings before an administrative law judge,
as provided  .  This   In each case, this
 bill would require that the inmate be provided with written
notice, as specified, and appointed counsel at least 21 days prior to
the hearing. 
   The bill would provide that it is not intended to prohibit a
physician from taking appropriate action in an emergency, as
specified. 
   Vote: majority. Appropriation: no. 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 overturn the
decision in Thor v. Superior Court, 5 Cal. 4th 725.
  SEC. 2.  Section 2602 is added to the Penal Code, to read:
   2602.  (a) Except as provided in subdivision (b), no person
described in Section 2600 shall be administered any psychotropic
medication without his or her prior informed consent.
   (b) If a psychiatrist determines that an inmate should be treated
with psychotropic medication, but the inmate does not consent, the
inmate may be involuntarily treated with the  medication
  medication. Treatment may be given on either a
nonemergency basis as provided in subdivision (c), or on an emergency
basis as provided in subdivision (d). 
    (c)     The Department of Corrections and
Rehabilitation may seek to initiate involuntary medication on a
nonemergency basis  only if all of the following conditions have
been met:
   (1) A psychiatrist has determined that the inmate  suffers
from   has  a serious mental disorder.
   (2) A psychiatrist has determined that, as a result of that mental
disorder, the inmate  currently is, or is likely to become,
  is  gravely disabled or a danger to self 
or   and does not have the capacity to refuse treatment
with psychotropic medications, or is  others.
   (3) A psychiatrist has prescribed one or more psychotropic
medications for the treatment of the inmate's  mental
 disorder  , has considered the risks, benefits, and
treatment alternatives to involuntary medication, and has determined
that the treatment alternatives to involuntary medication are
unlikely to meet the needs of the   patient. 
    (4)     The inmate has been advised of the
risks and benefits of, and treatment alternatives to, the
psychotropic medication and refuses or is unable to consent to the
administration of the medication  . 
   (4) 
    (5)  The inmate is provided a hearing before an
administrative law judge. 
   (5) 
    (6)  The inmate is provided counsel at least 21 days
prior to the hearing.  The hearing shall be held not more than 30
days after the filing of the notice with the Office of
Administrative Hearings, unless counsel for the inmate agrees to
extend the date of the hearing.  
   (6) 
    (7)  The inmate and counsel are provided with written
notice of the hearing at least 21 days prior to the hearing. The
written notice shall do all of the following:
   (A) Set forth the diagnosis, the factual basis for the diagnosis,
the basis upon which psychotropic medication is recommended, the
expected benefits of the medication, any potential side effects and
risks to the inmate from the medication, and any alternatives to
treatment with the medication.
   (B) Advise the inmate of the right to be present at the hearing,
 the right to be represented by counsel at all stages of the
proceedings,  the right to present evidence, and the right to
cross-examine witnesses.  Counsel for the inmate shall have
access t   o all medical records and files of the inmate,
but shall not have access to the confidential section of the inmate's
  central file which contains materials unrelated to
medical treatment.  
   (7) 
    (8)  An administrative law judge determines by clear and
 convincing evidence at the conclusion of the hearing that
the inmate suffers from a mental illness or disorder, that the inmate
currently is, or is likely to become, gravely disabled or a danger
to self or others if not medicated, and that the medication is in the
inmate's best medical interest.   convincing evidence
that the inmate has a mental illness or   disorder, that as
a result of that illness the inmate is gravely disabled and lacks the
capacity to consent to or refuse treatment with psychotropic
medications or is a danger to self or others if not medicated, that
there is no less intrusive alternative to involuntary medication, and
that the medication is in the inmate's best medical interest. 

   (9) The historical course of the inmate's mental disorder, as
determined by available relevant information about the course of the
inmate's mental disorder, shall be considered when it has direct
bearing on the determination of whether the inmate is a danger to
self or others, or is gravely disabled and incompetent to refuse
medication as the result of a mental disorder.  
   (d) Nothing in this section is intended to prohibit a physician
from taking appropriate action in an emergency. An emergency exists
when there is a sudden and marked change in an inmate's mental
condition so that action is immediately necessary for the
preservation of life or the prevention of serious bodily harm to the
inmate or others, and it is impractical, due to the seriousness of
the emergency, to first obtain informed consent. If psychotropic
medication is administered during an emergency, the medication shall
only be that which is required to treat the emergency condition and
shall be administered for only so long as the emergency continues to
exist.  
   (1) If the procedures set forth in subdivision (c) have not
commenced prior to the administration of psychotropic medication on
an emergency basis, the Department of Corrections and Rehabilitation
shall file with the Office of Administrative Hearings, and serve on
the inmate and his or her counsel the written notice described in
paragraph (7) of subdivision (c) within 72 hours of commencing
medication pursuant to this subdivision, unless either of the
following occurs: 
   (A) The inmate gives informed consent to continue the medication.
 
   (B) A psychiatrist determines that the psychotropic medication is
not necessary and administration of the medication is discontinued.
 
   (2) If medication is being administered pursuant to this
subdivision, the hearing described in paragraph (5) of subdivision
(c) shall commence within 21 days of the filing and service of the
notice, unless counsel for an inmate agrees to a longer period of
time.  
   (3) With the exception of the notice and timeline provisions
specified in paragraphs (1) and (2) of subdivision (d) for the
commencement of the hearing in emergency situations, the inmate shall
be entitled to and be given the same due process protections as
specified in subdivision (c).The department shall prove the same
elements supporting the involuntary administration of psychotropic
medication and the administrative law judge shall be required to make
the same findings described in subdivision (c).  
   (c) 
    (e)  The determination that an inmate may receive
involuntary medication shall be valid for one year from the date of
the determination, regardless of whether the inmate subsequently
gives his or her informed consent. 
   (d) 
    (f)  If a determination has been made to involuntarily
medicate an inmate pursuant to subdivision  (b) 
 (c) or (d)  , the medication shall be discontinued one year
after the date of that determination, unless the inmate gives his or
her informed consent to the administration of the medication, or
unless a new determination is made pursuant to the procedures set
forth in subdivision  (b)   (g)  . 

   (e) Nothing in this section is intended to prohibit a physician
from taking appropriate action in an emergency. For purposes of this
section, an emergency exists when there is a sudden and marked change
in the inmate's mental condition so that action is immediately
necessary for the preservation of life or the prevention of serious
bodily harm to the inmate or others and it is impractical to first
obtain informed consent. If psychotropic medication is administered
during an emergency, the medication shall only be that which is
required to treat the emergency condition.  
   (g) To renew an existing order allowing involuntary medication,
the department shall file with the Office of Administrative Hearings,
and shall serve on the inmate and his or her counsel, the written
notice described in paragraph (7) of subdivision (c). The notice
shall specify that the request is for a renewal.  
   (1) The request to renew the order shall be filed and served no
later than 21 days prior to the expiration of the current order
authorizing involuntary medication.  
   (2) To obtain a renewal order, the department shall provide the
same due process protections as specified in subdivision (c). The
department shall prove the same elements supporting the involuntary
administration of psychotropic medication and the administrative law
judge shall be required to make the same findings described in
subdivision (c).  
   (3) Renewal orders shall be valid for one year from the date of
the hearing.  
   (4) An order renewing a prior order may be granted based on clear
and convincing evidence that, but for the medication, the inmate
would revert to the behavior that was the basis for the prior order
authorizing involuntary medication, coupled with evidence that the
inmate lacks insight regarding his or her need for the medication,
such that it is unlikely that the inmate would be able to manage his
or her own medication and treatment regimen. No new acts need be
alleged or proven.  
   (5) The hearing on any petition to renew an order for involuntary
medication shall be conducted prior to the expiration of the current
order.  
   (h) In the event of a conflict between the provisions of this
section and the Administrative Procedure Act (Chapter 4.5 (commencing
with Section 11400) of Part 1 of Division 3 of the Government Code),
this section shall control.