Existing law establishes the State Department of State Hospitals for the administration of state hospitals and provides for the involuntary confinement of certain individuals in those state hospitals, including a defendant who has been found mentally incompetent to stand trial or who has been found to be insane at the time he or she committed the crime. Existing law requires a court, when a defendant pleads not guilty by reason of insanity, or if there is a question as to the defendants mental competence, to appoint a specified number of psychiatrists or psychologists to examine the defendant.

This bill would require the State Department of State Hospitals to establish, within the department, a pool of psychiatrists and psychologists with forensic skills, and would require the department to create evaluation panels from the pool of psychiatrists and psychologists, as specified. The bill would require the court to order an evaluation panel to evaluate a defendant who pleads not guilty by reason of insanity or who may be mentally incompetent. The bill would also make conforming changes.

Date of Hearing: April 28, 2015

Counsel: David Billingsley

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Bill Quirk, Chair

ABPCA Bill Id:AB 1237

Author:(Brown) – As Introduced Ver:February 27, 2015

SUMMARY:

Requires the State Department of State Hospitals to establish, within the department, a pool of psychiatrists and psychologists with forensic skills, and would require the department to create evaluation panels from the pool of psychiatrists and psychologists, as specified. This bill would require the court to order an examination by an evaluation panel for a defendant who pleads not guilty by reason of insanity or who may be mentally incompetent. The bill would also make conforming changes. Specifically, this bill:

1. Requires the State Department of State Hospitals to establish a pool of psychiatrists and psychologists with forensic skills who are employees of the department from which evaluation panels shall be created.

2. Requires the State Department of State Hospitals to create evaluation panels with each panel consisting of three to five forensic psychiatrists or psychologists from the pool of psychiatrists and psychologists.

3. Requires the court to appoint an evaluation panel to examine the defendant and investigate his or her mental status, when a defendant pleads not guilty by reason of insanity.

4. States that is the duty of the evaluation panel to make the examination and investigation, and to testify, whenever summoned, in any proceeding in which the sanity of the defendant is in question.

5. Allows the members of the evaluation panel, in addition to their actual traveling expenses, those fees that in the discretion of the court seem just and reasonable, having regard to the services rendered by the witnesses. The fees allowed shall be paid by the county where the indictment was found or in which the defendant was held for trial to the State Department of State Hospitals.

6. Requires any report on the examination and investigation of mental sanity, include, but not be limited to, the psychological history of the defendant, the facts surrounding the commission of the acts forming the basis for the present charge used by the evaluation panel in making the panel’s examination of the defendant, the present psychological or psychiatric symptoms of the defendant, if any, the substance abuse history of the defendant, the substance abuse history of the defendant on the day of the offense, a review of the police report for the offense, and any other credible and relevant material reasonably necessary to describe the facts of the offense.

7. Requires that a trial by court or jury of the question of mental competence shall proceed in the following order:

   1. The court shall appoint an evaluation panel, and any other expert with forensic experience the court may deem appropriate, to examine the defendant;

2. The defense and the prosecution shall each confer with the State Department of State Hospitals regarding the selection of the panelists, in any case in which the defendant or the defendant’s counsel informs the court that the defendant is not seeking a finding of mental incompetence;

3. The defense and the prosecution shall each confer with the State Department of State Hospitals regarding the selection of the panelists;

4. Requires the examining panelists 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 as a result of a mental disorder and, if within the scope of their licenses and appropriate to their opinions, whether or not treatment with antipsychotic medication is medically appropriate for the defendant and whether antipsychotic medication is likely to restore the defendant to mental competence;

5. Requires that the panelist inform the court of his or her opinion and his or her recommendation, if an examining panelist is of the opinion that antipsychotic medication may be medically appropriate for the defendant and that the defendant should be evaluated by a psychiatrist to determine if antipsychotic medication is medically appropriate;

6. The examining panelists shall also address the issues of whether the defendant has capacity to make decisions regarding antipsychotic medication and whether the defendant is a danger to self or others;

7. If the defendant is examined by a psychiatrist and the psychiatrist forms an opinion as to whether or not treatment with antipsychotic medication is medically appropriate, the psychiatrist shall inform the court of his or her opinions as to the likely or potential side effects of the medication, the expected efficacy of the medication, possible alternative treatments, and whether it is medically appropriate to administer antipsychotic medication in the county jail;

8. If it is suspected the defendant is developmentally disabled, the court shall appoint the director of the regional center for the developmentally disabled, or the designee of the director, to examine the defendant. The court may order the developmentally disabled defendant to be confined for examination in a residential facility or state hospital;

9. The regional center director shall recommend to the court a suitable residential facility or state hospital. Prior to issuing an order pursuant to this section, the court shall consider the recommendation of the regional center director. While the person is confined pursuant to order of the court under this section, he or she shall be provided with necessary care and treatment;

10. The counsel for the defendant shall offer evidence in support of the allegation of mental incompetence;

11. The prosecution shall offer any evidence in support of the allegation of mental incompetence;

12. Allows each party may offer rebutting testimony, unless the court, for good reason in furtherance of justice, also permits other evidence in support of the original contention;

13. When the evidence is concluded, unless the case is submitted without final argument, the prosecution shall make its final argument and the defense shall conclude with its final argument to the court or jury;

14. In a jury trial, the court shall charge the jury, instructing them on all matters of law necessary for the rendering of a verdict. It shall be presumed that the defendant is mentally competent unless it is proved by a preponderance of the evidence that the defendant is mentally incompetent. The verdict of the jury shall be unanimous; and

15. Only a court trial is required to determine competency in any proceeding for a violation of probation, mandatory supervision, postrelease community supervision, or parole.

8. Requires the State Department of State Hospitals to establish a pool of psychiatrists and psychologists with forensic skills who are employees of the department from which evaluation panels shall be created.

9. Requires the State Department of State Hospitals to create evaluation panels with each panel consisting of three to five forensic psychiatrists or psychologists from the pool created in subdivision (a).

EXISTING LAW:

1. Requires the court select and appoint two, and may select and appoint three, psychiatrists, or licensed psychologists who have a doctoral degree in psychology and at least five years of postgraduate experience in the diagnosis and treatment of emotional and mental disorders, to examine the defendant and investigate his or her mental status, when a defendant pleads not guilty by reason of insanity. (Pen. Code, § 1027, subd. (a).)

2. Requires the psychiatrists or psychologists selected and appointed to make the examination and investigation, and to testify, whenever summoned, in any proceeding in which the sanity of the defendant is in question. (Pen. Code, § 1027, subd. (a).)

3. Allows the psychiatrists or psychologists appointed by the court, in addition to their actual traveling expenses, fees that in the discretion of the court seem just and reasonable, having regard to the services rendered by the witnesses. The fees allowed shall be paid by the county where the indictment was found or in which the defendant was held for trial. (Pen. Code, § 1027, subd. (a).)

4. States that any report on the examination and investigation of defendant’s mental status, shall include, but not be limited to, the psychological history of the defendant, the facts surrounding the commission of the acts forming the basis for the present charge used by the psychiatrist or psychologist in making his or her examination of the defendant, the present psychological or psychiatric symptoms of the defendant, if any, the substance abuse history of the defendant, the substance use history of the defendant on the day of the offense, a review of the police report for the offense, and any other credible and relevant material reasonably necessary to describe the facts of the offense. (Pen. Code, § 1027, subd. (b).)

5. States that this section does not presume that a psychiatrist or psychologist can determine whether a defendant was sane or insane at the time of the alleged offense. This section does not limit a court's discretion to admit or exclude, pursuant to the Evidence Code, psychiatric or psychological evidence about the defendant's state of mind or mental or emotional condition at the time of the alleged offense. (Pen. Code, § 1027, subd. (c).)

6. Provides that nothing contained in this section shall be deemed or construed to prevent any party to any criminal action from producing any other expert evidence with respect to the mental status of the defendant. If expert witnesses are called by the district attorney in the action, they shall only be entitled to those witness fees as may be allowed by the court. (Pen. Code, § 1027, subd. (d).)

7. Specifies that any psychiatrist or psychologist appointed by the court may be called by either party to the action or by the court, and shall be subject to all legal objections as to competency and bias and as to qualifications as an expert. When called by the court or by either party to the action, the court may examine the psychiatrist or psychologist, as deemed necessary, but either party shall have the same right to object to the questions asked by the court and the evidence adduced as though the psychiatrist or psychologist were a witness for the adverse party. When the psychiatrist or psychologist is called and examined by the court, the parties may cross-examine him or her in the order directed by the court. When called by either party to the action, the adverse party may examine him or her the same as in the case of any other witness called by the party. (Pen. Code, § 1027, subd. (e).)

8. Requires a trial by court or jury of the question of mental competence to proceed in the following order:

1. The court shall appoint a psychiatrist or licensed psychologist, and any other expert the court may deem appropriate, to examine the defendant; (Pen. Code § 1369, subd. (a).)

2. In any case where the defendant or the defendant's counsel informs the court that the defendant is not seeking a finding of mental incompetence, the court shall appoint two psychiatrists, licensed psychologists, or a combination thereof; (Pen. Code § 1369, subd. (a).)

3. One of the psychiatrists or licensed psychologists may be named by the defense and one may be named by the prosecution; (Pen. Code § 1369, subd. (a).)

4. The examining psychiatrists or licensed psychologists shall 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 as a result of a mental disorder and, if within the scope of their licenses and appropriate to their opinions, whether or not treatment with antipsychotic medication is medically appropriate for the defendant and whether antipsychotic medication is likely to restore the defendant to mental competence; (Pen. Code § 1369, subd. (a).)

5. If an examining psychologist is of the opinion that antipsychotic medication may be medically appropriate for the defendant and that the defendant should be evaluated by a psychiatrist to determine if antipsychotic medication is medically appropriate, the psychologist shall inform the court of this opinion and his or her recommendation as to whether a psychiatrist should examine the defendant; (Pen. Code § 1369, subd. (a).)

6. The examining psychiatrists or licensed psychologists shall also address the issues of whether the defendant has capacity to make decisions regarding antipsychotic medication and whether the defendant is a danger to self or others; (Pen. Code § 1369, subd. (a).)

7. If the defendant is examined by a psychiatrist and the psychiatrist forms an opinion as to whether or not treatment with antipsychotic medication is medically appropriate, the psychiatrist shall inform the court of his or her opinions as to the likely or potential side effects of the medication, the expected efficacy of the medication, possible alternative treatments, and whether it is medically appropriate to administer antipsychotic medication in the county jail; (Pen. Code § 1369, subd. (a).)

8. If it is suspected the defendant is developmentally disabled, the court shall appoint the director of the regional center for the developmentally, or the designee of the director, to examine the defendant. The court may order the developmentally disabled defendant to be confined for examination in a residential facility or state hospital; (Pen. Code § 1369, subd. (a).)

9. The regional center director shall recommend to the court a suitable residential facility or state hospital. Prior to issuing an order pursuant to this section, the court shall consider the recommendation of the regional center director. While the person is confined pursuant to order of the court under this section, he or she shall be provided with necessary care and treatment; (Pen. Code § 1369, subd. (a).)

10. The counsel for the defendant shall offer evidence in support of the allegation of mental incompetence; (Pen. Code § 1369, subd. (b)(1).)

11. If the defense declines to offer any evidence in support of the allegation of mental incompetence, the prosecution may do so; (Pen. Code § 1369, subd. (b)(2).)

12. The prosecution shall present its case regarding the issue of the defendant's present mental competence; (Pen. Code § 1369, subd. (c).)

13. Each party may offer 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, subd. (d).)

14. When the evidence is concluded, unless the case is submitted without final argument, the prosecution shall make its final argument and the defense shall conclude with its final argument to the court or jury; (Pen. Code § 1369, subd. (e).)

15. In a jury trial, the court shall charge the jury, instructing them on all matters of law necessary for the rendering of a verdict. It shall be presumed that the defendant is mentally competent unless it is proved by a preponderance of the evidence that the defendant is mentally incompetent. The verdict of the jury shall be unanimous; and (Pen. Code § 1369, subd. (f).)

16. Only a court trial is required to determine competency in any proceeding for a violation of probation, mandatory supervision, postrelease community supervision, or parole. (Pen. Code § 1369, subd. (g).)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, "The Department of State Hospitals estimates that between 15-20 percent of their patients are malingerers. Malingerers are patients who are faking mental illness to avoid being sentenced to prison. Once they are sent to a state hospital, they then become threats to hospital staff and patients. Violence against hospital staff could be reduced if patients were examined by the psychologists and psychiatrist who are familiar with the state hospital system.”

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 approximately 6,600. 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. Currently the state hospitals are treating approximately 1,400 patients who are not guilty by reason of insanity(NGI) and approximately 1,300 patients who are incompetent to stand trial (IST). 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. Incompetent to Stand Trial: Under state and federal law, all individuals who face criminal charges must be mentally competent to help in their defense. By definition, an individual who is IST lacks the mental competency to participate in legal proceedings. In a January 2012 report by the Office of the Legislative Analyst (LAO) entitled, “An Alternative Approach: Treating the Incompetent to Stand Trial,” the LAO outlined the specific process California courts must follow when a defendant’s competency is in doubt. The process is often initiated by defense attorneys concerned about the client’s mental capacity which then requires the judge to order an evaluation of the person by court-appointed mental health experts, during which time the court proceedings are suspended. The evaluation and report guides the court to assess competency. In cases when a person is found IST, judges then typically order an evaluation to determine the most appropriate treatment facility, the goal of treatment being restoring the person to competency. Individuals charged with a violent felony are typically ordered to undergo treatment at a state hospital.

4. Not Guilty by Reason of Insanity: According to a Disability Rights California May 2009 report entitled, “Forensic Mental Health Legal Issues,” the plea of NGI is an affirmative defense to a criminal charge, but refers to a legal definition not a clinical diagnosis. Under current California law, a defendant will be found NGI if it is proven by a preponderance of the evidence that the individual was either: i) incapable of knowing or understanding the nature and quality of the act; or, ii) incapable of distinguishing right from wrong at the time the offence was committed. The insanity defense is used primarily when a criminal charge is a serious felony. If a court or jury finds a person NGI, the court must determine whether to confine the person in a state hospital or outpatient treatment program. Penal Code Section 1026 requires, prior to making the placement, the court to order an evaluation by the CPD to advise the court on the most appropriate placement.

5. State Hospitals Have Been Criticized for Their Evaluations of Sexually Violent Predators(SVP): Although NGIs and ISTs are currently evaluated by experts at a local level, State Hospitals have the responsibility to evaluate SVPs. The California State Auditor recently published results of its audit concerning the California Department of State Hospitals’ Sex Offender Commitment Program and evaluation of SVPs. The report concluded that the State Hospitals’ evaluation of potential SVPs were inconsistent. The report noted gaps in policies, supervision, and training. The report noted that State Hospitals have not consistently offered training to its evaluators and did not provide SVP evaluators with any training between August 2012 and May 2014. (California Department of State Hospitals, California State Auditor, March 2015.)
   
   

6. ISTs and NGI are Determined in the Course of an Adversarial Process with Checks and Balances beyond the Evaluators: The existing process to determine NGIs and ISTs involves mental health evaluations by experts who are psychiatrists or psychologists. But in addition to the evaluations by the experts, the process includes a judge, a district attorney, and a defense attorney. To the extent the parties have concerns or disagreements about the validity of the determinations reached by the evaluators, the parties can demand a trial to determine if the defendant meets the legal standard for NGI or IST. The trial allows additional evidence to be presented, and existing evidence to be challenged, by the parties in order reach an accurate determination of NGI or IST, if there is not a consensus among the parties.

7. Argument in Support: According to The American Federation of State, County and Municipal Employees, “AFSCME strongly supports AB 1237 in requiring the Department of State Hospitals (DSH) to establish, within the department, a pool of psychiatrists and psychologists with forensic skills. AB 1237 would also create evaluation panels from the aforementioned pool to evaluate a defendant who pleads not guilty by reason of insanity or who may be mentally incompetent. Our affiliate, the Union of American Physicians and Dentists UAPD) is sponsoring AB 1237, and we proudly stand with them in support of a measure that would aid the DSH in being able to more appropriately diagnose and place forensic patients in an appropriate state hospital setting. AB 1237 would go a long way in stemming the tide of violence against hospital staff in the state hospitals.”

8. Argument in Opposition: According to The Judicial Council, “In support of AB 1237, the author’s fact sheet asserts that “court appointed psychiatrists are not always familiar with the populations being served at the different state hospitals” and that “[a]s a result, malingerers are often placed in the state hospital system and the safety of patients and staff is put in jeopardy.” The Judicial Council believes that these statements conflate separate issues and that no evidence of the assertions is provided in either the bill or the background materials provided by the author. The council also believes that the consequence of the bill’s radical shift in procedure from court-appointed psychiatrists and psychologists to state hospital evaluation panels would virtually replace the need for local forensic experts and related quality assurance mechanisms. In addition, the Judicial Council is concerned that the bill shifts clinical responsibility for determining mental illness-related issues to individuals who, obviously, have interests and incentives external to the judicial process. Restricting the criminal courts’ ability to secure timely and unbiased forensic evaluations in NGI and IST cases inappropriately impedes the independence of judicial decision making. Moreover, the council is concerned about potential delays in the court process that could result from having only a limited pool of evaluators to draw from, especially since those evaluators may be located a significant distance from the counties where the proceedings are being conducted.

“It is also important to note that AB 1237 wholly fails to address the issue of the qualifications and training standards for forensic evaluators, which appears to be the principal policy concern underlying this measure. The issue of qualifications and training for forensic evaluators was one of the topics of discussion during stakeholder meetings regarding state hospitals and developmental centers that were convened by the Governor’s office last year. While a number of the participants expressed interest in further pursuing this avenue, there was no mention of the type of fundamental shift in how California’s long-standing forensic evaluation system operates that AB 1237 presents. The Judicial Council respectfully suggests that a similar stakeholder process, involving all of the key interest groups, is a more appropriate forum for addressing the underlying concerns behind this bill.”

9. Prior Legislation: AB 2543 (Levine), of the 2013-2014, Legislative Session, would have required the State Department of State Hospitals to establish a pool of psychiatrists and psychologists with forensic skills who would evaluate a defendant who pleads not guilty by reason of insanity or who may be mentally incompetent.

REGISTERED SUPPORT / OPPOSITION:

Support

American Federation of State, County and Municipal Employees (Co-Sponsor)
Union of American Physicians and Dentists (Co-Sponsor)

California Association of Psychiatric Technicians

Opposition

American Civil Liberties Union of California

California Attorneys for Criminal Justice
California District Attorneys Association

California Judges Association
California Public Defenders Association

California State Association of Counties

Disability Rights California

Judicial Council of California

Los Angeles County District Attorney’s Office

San Francisco Public Defender

Analysis Prepared by:

David Billingsley / PUB. S. / (916) 319-3744

Date of Hearing: April 14, 2015

ASSEMBLY COMMITTEE ON HEALTH

Rob Bonta, Chair

ABPCA Bill Id:AB 1237

Author:(Brown) – As Introduced Ver:February 27, 2015

SUBJECT: State hospitals: placement evaluations.

SUMMARY: Requires the Department of State Hospitals (DSH) to establish a pool of psychiatrists and psychologists with forensic skills and requires the court to create evaluation panels from the pool of psychiatrists and psychologists to evaluate a defendant who pleads not guilty by reason of insanity (NGI) or who may be mentally incompetent to stand trial (IST). Specifically, this bill:

1. Requires DSH to establish a pool of psychiatrists and psychologists with forensic skills who are employees of DSH and to create, from the pool, forensic panels of three to five psychiatrists and psychologists.
   
   
   

2. Requires the court to order an evaluation panel from the established pool of psychiatrists and psychologists to evaluate a defendant who pleads NGI or who may be mentally IST.

EXISTING LAW:

1. Establishes DSH to manage the state hospital system and provide mental health services to patients admitted in five DSH-administered state hospitals and three psychiatric programs located in state prisons.

2. Establishes the Mentally Disordered Offender Act which, among other things, provides for the involuntary commitment of mentally ill persons to a state hospital pursuant to various provisions of the Welfare and Institutions Code for civil commitments, and provisions of the Penal Code for criminal court commitments, including circumstances when the patient is deemed IST or NGI.

3. Requires a court, when a defendant pleads NGI, or in instances where there is a question of a defendant’s mental competence, to first appoint one or more psychiatrists or licensed psychologists, as specified, to examine and evaluate the defendant’s mental status or disorder and to provide a report to the court on the results of the evaluation, as specified.

FISCAL EFFECT: This bill has not been analyzed by a fiscal committee.

COMMENTS:

1. PURPOSE OF THIS BILL. According to the author, this bill is necessary to bring into conformity the evaluation/placement of patients coming to the state hospitals. The current practice done by court contracted medical doctors and psychologists is not suitable for existing forensic population. DSH staff have vested interest in conformity and placement outcomes.

2. BACKGROUND.

   1. Department of State Hospitals. DSH manages the California state hospital system, which provides mental health services to patients admitted into DSH facilities. DSH oversees five state hospitals (Atascadero, Coalinga, Metropolitan (in Los Angeles County), Napa, and Patton) and through an interagency agreement with the California Department of Corrections and Rehabilitation also treats inmates at prisons in Vacaville, Salinas Valley, and Stockton. All eight facilities are licensed by the California Department of Public Health and required to meet or exceed regulatory standards to continue providing care.

A court mandates treatment for patients in DSH facilities. Up to 90% of DSH patients are forensic commitments, individuals sent to DSH through the criminal court system, who have committed or have been accused of committing a crime linked to their mental illness. DSH also treats patients who have been classified as Sexually Violent Predators. The remainder of the DSH population has been committed through civil court because they are a danger to themselves or others, under the Lanterman-Petris-Short (LPS) Act. LPS patients can be held 72 hours for mental health evaluation and treatment, evaluated for an additional 14 day treatment period and, with further evaluation and judicial review, have their commitments extended in 180 day intervals.

Under state and federal law, all individuals who face criminal charges must be mentally competent to help in their defense. By definition, an individual who is IST lacks the mental competency to participate in legal proceedings. The process California courts must follow when a defendant’s competency is in doubt is often initiated by defense attorneys concerned about the client’s mental capacity. The judge is then required to order an evaluation of the person by court-appointed mental health experts, during which time the court proceedings are suspended. The evaluation and report guides the court to assess competency. Individuals charged with a violent felony are typically ordered to undergo treatment at a state hospital. According to Legislative Analyst’s Office, there is a monthly statewide waitlist that averages between 200 and 300 IST individuals, typically in county jails, waiting for a bed to become available in a state hospital. DSH has realized a significant increase in IST referrals from the counties, resulting in an increased number of patients pending placement in a state hospital. Between January 2013 and January 2014, the total pending placement census increased 136%, even with the activation of multiple units system-wide that increased DSH's ability to admit IST individuals.

2. NGI. A defendant will be found NGI if it is proven by a preponderance of the evidence that the individual was either: i) incapable of knowing or understanding the nature and quality of the act; or, ii) incapable of distinguishing right from wrong at the time the offence was committed. The insanity defense is used primarily when a criminal charge is a serious felony. If a court or jury finds a person NGI, the court must determine whether to confine the person in a state hospital or outpatient treatment program. If an individual is adjudged NGI, they will be committed to a state hospital for treatment. The individual is committed for no longer than the maximum sentence for which they could have been imprisoned, unless they represent a substantial danger, at which successive two-year extensions can be sought. To be released, a person found NGI or the director of the state hospital must petition the court for release, typically to outpatient treatment. NGI individuals currently account for 21% of the DSH population.

3. Forensic Specialists. Forensic psychology, as defined by the American Psychological Association, is the application of clinical specialties to the legal arena. Forensic psychologists are called on to assess individuals who are involved, in one way or another, with the legal system. According to the American Board of Psychiatry and Neurology, forensic psychiatry is a subspecialty that involves having psychiatric focus on interrelationships with civil, criminal, and administrative law, evaluation and specialized treatment of individuals involved with the legal system, incarcerated in jails, prisons, and forensic psychiatry hospitals. To be certified as forensic specialists, both psychologists and psychiatrists must complete additional training and testing requirements.

3. SUPPORT. The sponsor of the bill is the Union of American Physicians and Dentists (UAPD). UAPD and the American Federation of State, County and Municipal Employees, both write in support that existing law establishes DSH for administration of state hospitals and provides for the involuntary confinement of certain individuals in those state hospitals, including a defendant who has been found mentally IST or who has been found to be insane at the time he/she committed the crime. Under existing law, the courts contract with psychiatrists and psychologists to assess patients who are appropriate for placement in the state hospitals. The supporters note that this bill would require DSH to establish, within DSH, a pool of psychiatrists and psychologists with forensic skills, and would require DSH to create evaluation panels from the pool of psychiatrists and psychologists. This bill would require the court to order an evaluation panel to evaluate a defendant who pleads not guilty by reason of insanity or who may be mentally incompetent.

4. OPPOSITION. Disability Rights California (DRC) writes in opposition that this bill requires all of the psychiatrists or psychologists to be DSH employees. DRC writes that this would narrow the pool of available psychiatrists/psychologists. DRC has concerns that patients would not get a fair trial if the panels are limited to DSH employees. DRC states that instead of directly appointing two (or, for NGI, two or three) psychiatrists/psychologists from a panel, the court would appoint a panel, created by DSH from a pool of psychiatrists and/or psychologists. There is nothing in this bill about how many DSH employees would be in the pool or how the panels would be selected, other than a provision that says the defense and prosecution are required to each confer with DSH regarding selection of the panelists. This change would hamstring the courts and counsel for both parties. In fact, DRC states the defense may have to hire an expert in every case if this provision is adopted.

DRC argues that under current law, for IST, the prosecution chooses one psychiatrist/psychologist and the defense chooses the other. This bill changes current law to require the defense and prosecution to each confer with DSH regarding selection of the panelists. This bill provides DSH with plenary power to select the panel subject to court approval. There is nothing in this bill that would preclude one or both parties from objecting to appointment of the panel by the court, and presumably, the court could order DSH to create a new panel. But there would no longer be a right for either the defense or prosecution to select one of the panelists.

5. PREVIOUS LEGISLATION.

   1. AB 2186 (Lowenthal), Chapter 733, Statutes of 2014, revises the timelines and requires the court to use opinions developed by examining medical professionals when the court is determining if an IST defendant lacks the capacity to make decisions regarding the administration of antipsychotic medication.
      
      

   2. AB 2190 (Maienschein), Chapter 734, Statutes of 2014, allows a court to place a person found to be IST or NGI on outpatient status within a mental health treatment facility.
      
      

   3. AB 2625 (Achadjian), Chapter 742, Statutes of 2014, specifies procedures relative to returning to court, a defendant committed to a state hospital or other facility for treatment as IST who has not recovered competency.

   4. AB 2543 (Levine) of 2014 would have allowed for an evaluation panel to determine whether a defendant committed to DSH to regain competency lacks capacity to make decisions regarding antipsychotic medication. AB 2543 was held in the Assembly Public Safety Committee and the subject matter was referred to the Committee on Rules for assignment to the proper committee for study.

   5. AB 610 (Achadjian), Chapter 705, Statutes of 2013, requires the county of commitment to pay the non-treatment costs associated with any hearing for an order seeking involuntary treatment of psychotropic medication for a mentally disordered offender whose commitment in a state hospital has been extended beyond the expiration of parole.

6. DOUBLE REFERRAL. This bill is double referred; if this bill passes this Committee it will be referred to the Assembly Public Safety Committee.

7. POLICY COMMENT. This bill substitutes two to three court appointed psychiatrists or licensed psychologists with an evaluation panel of three to five forensic psychiatrists or psychologists from the pool established and employed by DSH. Current law requires court appointed psychiatrists or psychologists to have at least five years of postgraduate experience in the diagnosis and treatment of emotional disorders. This bill simply requires individuals in the established pool of psychiatrists or psychologists to have forensic skills. This basic requirement is too broad and the author may want to consider amendments that establish more stringent qualifications.

REGISTERED SUPPORT / OPPOSITION:

Support

Union of American Physicians and Dentists (sponsor)
American Federation of State, County and Municipal Employees, AFL-CIO

Opposition

Disability Rights California

Analysis Prepared by: Paula Villescaz / HEALTH / (916) 319-2097