SB 453: Prisons: involuntary medication.
- Session Year: 2015-2016
- House: Senate
- Latest Version Date: 2015-09-03
Existing law provides that if a defendant in a criminal proceeding is found mentally incompetent, the trial or judgment shall be suspended until the person becomes mentally competent. Existing law provides that the court shall order that the mentally incompetent defendant be delivered by the sheriff to a state hospital for the care and treatment of the mentally disordered, as directed by the State Department of State Hospitals, or to any other available public or private treatment facility approved by the community program director that will promote the defendants speedy restoration to mental competence, or placed on outpatient status as specified. Existing law further specifies commitment proceedings to include circumstances for the voluntary and involuntary administration of antipsychotic medication.
Under existing law, if consent for antipsychotic medication is withdrawn or if the treating psychiatrist later determines that antipsychotic medication is medically necessary and appropriate, the treating psychiatrist is required to make efforts to obtain consent for that medication. Existing law provides that if the treating psychiatrist certifies that antipsychotic medication has become medically necessary and appropriate for the defendant, antipsychotic medication may be administered to the defendant for a maximum of 21 days, provided, however, that, within 72 hours of the certification, the defendant is provided a medication review hearing before an administrative law judge to be conducted at the facility where the defendant is receiving treatment.
This bill would authorize the treating psychiatrist, if he or she determines that there is a need, based on preserving rapport with the patient or preventing harm, to request that the facility medical director designate another psychiatrist to act in the place of the treating psychiatrist for purposes of seeking an order for involuntary medication. If the medical director of the facility designates another psychiatrist to act, this bill would require the treating psychiatrist to brief the acting psychiatrist of the relevant facts of the case and would require the acting psychiatrist to examine the patient prior to the hearing.
Existing law provides that if a defendant in a criminal proceeding is found mentally incompetent, the trial or judgment shall be suspended until the person becomes mentally competent. Existing law provides that the court shall order that the mentally incompetent defendant be delivered by the sheriff to a state hospital for the care and treatment of the mentally disordered, as directed by the State Department of State Hospitals, or to any other available public or private treatment facility approved by the community program director that will promote the defendants speedy restoration to mental competence, or placed on outpatient status as specified. Existing law further specifies commitment proceedings to include circumstances for the voluntary and involuntary administration of antipsychotic medication.
Under existing law, if consent for antipsychotic medication is withdrawn or if the treating psychiatrist later determines that antipsychotic medication is medically necessary and appropriate, the treating psychiatrist is required to make efforts to obtain consent for that medication. Existing law provides that if the treating psychiatrist certifies that antipsychotic medication has become medically necessary and appropriate for the defendant, antipsychotic medication may be administered to the defendant for a maximum of 21 days, provided, however, that, within 72 hours of the certification, the defendant is provided a medication review hearing before an administrative law judge to be conducted at the facility where the defendant is receiving treatment.
This bill would authorize the treating psychiatrist, if he or she determines that there is a need, based on preserving rapport with the patient or preventing harm, to request that the facility medical director designate another psychiatrist to act in the place of the treating psychiatrist for purposes of seeking an order for involuntary medication. If the medical director of the facility designates another psychiatrist to act, this bill would require the treating psychiatrist to brief the acting psychiatrist of the relevant facts of the case and would require the acting psychiatrist to examine the patient prior to the hearing.
Existing law provides that if a defendant in a criminal proceeding is found mentally incompetent, the trial or judgment shall be suspended until the person becomes mentally competent. Existing law provides that the court shall order that the mentally incompetent defendant be delivered by the sheriff to a state hospital for the care and treatment of the mentally disordered, as directed by the State Department of State Hospitals, or to any other available public or private treatment facility approved by the community program director that will promote the defendants speedy restoration to mental competence, or placed on outpatient status as specified. Existing law further specifies commitment proceedings to include circumstances for the voluntary and involuntary administration of antipsychotic medication.
Under existing law, if consent for antipsychotic medication is withdrawn or if the treating psychiatrist later determines that antipsychotic medication is medically necessary and appropriate, the treating psychiatrist is required to make efforts to obtain consent for that medication. Existing law provides that if the treating psychiatrist certifies that antipsychotic medication has become medically necessary and appropriate for the defendant, antipsychotic medication may be administered to the defendant for a maximum of 21 days, provided, however, that, within 72 hours of the certification, the defendant is provided a medication review hearing before an administrative law judge to be conducted at the facility where the defendant is receiving treatment.
This bill would authorize the treating psychiatrist, if he or she determines that there is a need, based on preserving rapport with the patient or preventing harm, to request that the facility medical director designate another psychiatrist to act in the place of the treating psychiatrist for purposes of involuntary medication. If the medical director of the facility designates another psychiatrist to act, this bill would require the treating psychiatrist to brief the acting psychiatrist of the relevant facts of the case and would require the acting psychiatrist to examine the patient prior to the hearing.
Existing law provides that if a defendant in a criminal proceeding is found mentally incompetent, the trial or judgment shall be suspended until the person becomes mentally competent. Existing law provides that the court shall order that the mentally incompetent defendant be delivered by the sheriff to a state hospital for the care and treatment of the mentally disordered, as directed by the State Department of State Hospitals, or to any other available public or private treatment facility approved by the community program director that will promote the defendants speedy restoration to mental competence, or placed on outpatient status as specified. Existing law further specifies commitment proceedings to include circumstances for the voluntary and involuntary administration of antipsychotic medication.
Under existing law, if consent for antipsychotic medication is withdrawn or if the treating psychiatrist later determines that antipsychotic medication is medically necessary and appropriate, the treating psychiatrist is required to make efforts to obtain consent for that medication. Existing law provides that if the treating psychiatrist certifies that antipsychotic medication has become medically necessary and appropriate for the defendant, antipsychotic medication may be administered to the defendant for a maximum of 21 days, provided, however, that, within 72 hours of the certification, the defendant is provided a medication review hearing before an administrative law judge to be conducted at the facility where the defendant is receiving treatment.
This bill would authorize the treating psychiatrist, if he or she determines that there is a need, based on factors such as preserving rapport with the patient or preventing harm, to request that the facility medical director designate another psychiatrist to act in the place of the treating psychiatrist for purposes of involuntary medication. If the medical director of the facility designates another psychiatrist to act, this bill would require the treating psychiatrist to brief the acting psychiatrist of the relevant facts of the case and would require the acting psychiatrist to examine the patient prior to the hearing.
Existing law provides that if a defendant in a criminal proceeding is found mentally incompetent, the trial or judgment shall be suspended until the person becomes mentally competent. Existing law provides that the court shall order that the mentally incompetent defendant be delivered by the sheriff to a state hospital for the care and treatment of the mentally disordered, as directed by the State Department of State Hospitals, or to any other available public or private treatment facility approved by the community program director that will promote the defendants speedy restoration to mental competence, or placed on outpatient status as specified. Existing law further specifies commitment proceedings to include circumstances for the voluntary and involuntary administration of antipsychotic medication.
Under existing law, if consent for antipsychotic medication is withdrawn or if the treating psychiatrist later determines that antipsychotic medication is medically necessary and appropriate, the treating psychiatrist is required to make efforts to obtain consent for that medication. Existing law provides that if the treating psychiatrist certifies that antipsychotic medication has become medically necessary and appropriate for the defendant, antipsychotic medication may be administered to the defendant for a maximum of 21 days, provided, however, that, within 72 hours of the certification, the defendant is provided a medication review hearing before an administrative law judge to be conducted at the facility where the defendant is receiving treatment.
This bill would authorize the treating psychiatrist, if he or she determines that there is a need, based on factors such as preserving rapport with the patient, to request that the facility medical director designate another psychiatrist to act in the place of the treating psychiatrist for purposes of involuntary medication. If the medical director of the facility designates another psychiatrist to act, this bill would require the treating psychiatrist to brief the acting psychiatrist of the relevant facts of the case. case and would require the acting psychiatrist to examine the patient prior to the hearing.
Existing law provides that if a defendant in a criminal proceeding is found mentally incompetent, the trial or judgment shall be suspended until the person becomes mentally competent. Existing law provides that the court shall order that the mentally incompetent defendant be delivered by the sheriff to a state hospital for the care and treatment of the mentally disordered, as directed by the State Department of State Hospitals, or to any other available public or private treatment facility approved by the community program director that will promote the defendants speedy restoration to mental competence, or placed on outpatient status as specified. Existing law further specifies commitment proceedings to include circumstances for the voluntary and involuntary administration of antipsychotic medication.
Under existing law, if consent for antipsychotic medication is withdrawn or if the treating psychiatrist later determines that antipsychotic medication is medically necessary and appropriate, the treating psychiatrist is required to make efforts to obtain consent for that medication. Existing law provides that if the treating psychiatrist certifies that antipsychotic medication has become medically necessary and appropriate for the defendant, antipsychotic medication may be administered to the defendant for a maximum of 21 days, provided, however, that, within 72 hours of the certification, the defendant is provided a medication review hearing before an administrative law judge to be conducted at the facility where the defendant is receiving treatment.
This bill would instead authorize a psychiatrist designated by the facility medical director to make the determination and certification as to whether antipsychotic medication is medically necessary and appropriate and to administer that medication to the defendant for up to 21 days. authorize the treating psychiatrist, if he or she determines that there is a need, based on factors such as preserving rapport with the patient, to request that the facility medical director designate another psychiatrist to act in the place of the treating psychiatrist for purposes of involuntary medication. If the medical director of the facility designates another psychiatrist to act, this bill would require the treating psychiatrist to brief the acting psychiatrist of the relevant facts of the case.
Existing law provides that if a defendant in a criminal proceeding is found mentally incompetent, the trial or judgment shall be suspended until the person becomes mentally competent. Existing law provides that the court shall order that the mentally incompetent defendant be delivered by the sheriff to a state hospital for the care and treatment of the mentally disordered, as directed by the State Department of State Hospitals, or to any other available public or private treatment facility approved by the community program director that will promote the defendants speedy restoration to mental competence, or placed on outpatient status as specified. Existing law further specifies commitment proceedings to include circumstances for the voluntary and involuntary administration of antipsychotic medication.
Under existing law, if consent for antipsychotic medication is withdrawn or if the treating psychiatrist later determines that antipsychotic medication is medically necessary and appropriate, the treating psychiatrist is required to make efforts to obtain consent for that medication. Existing law provides that if the treating psychiatrist certifies that antipsychotic medication has become medically necessary and appropriate for the defendant, antipsychotic medication may be administered to the defendant for a maximum of 21 days, provided, however, that, within 72 hours of the certification, the defendant is provided a medication review hearing before an administrative law judge to be conducted at the facility where the defendant is receiving treatment.
This bill would instead authorize a psychiatrist designated by the facility medical director to make the determination and certification as to whether antipsychotic medication is medically necessary and appropriate and to administer that medication to the defendant for up to 21 days.
(a)(1)(A)If the defendant is found mentally competent, the criminal process shall resume, the trial on the offense charged or hearing on the alleged violation shall proceed, and judgment may be pronounced.
(B)If the defendant is found mentally incompetent, the trial, the hearing on the alleged violation, or the judgment shall be suspended until the person becomes mentally competent.
(i)In the meantime, the court shall order that the mentally incompetent defendant be delivered by the sheriff to a state hospital for the care and treatment of the mentally disordered, as directed by the State Department of State Hospitals, or to any other available public or private treatment facility, including a county jail treatment facility or the community-based residential treatment system established pursuant to Article 1 (commencing with Section 5670) of Chapter 2.5 of Part 2 of Division 5 of the Welfare and Institutions Code if the facility has a secured perimeter or a locked and controlled treatment facility, approved by the community program director that will promote the defendants speedy restoration to mental competence, or placed on outpatient status as specified in Section 1600.
(ii)However, if the action against the defendant who has been found mentally incompetent is on a complaint charging a felony offense specified in Section 290, the prosecutor shall determine whether the defendant previously has been found mentally incompetent to stand trial pursuant to this chapter on a charge of a Section 290 offense, or whether the defendant is currently the subject of a pending Section 1368 proceeding arising out of a charge of a Section 290 offense. If either determination is made, the prosecutor shall so notify the court and defendant in writing. After this notification, and opportunity for hearing, the court shall order that the defendant be delivered by the sheriff to a state hospital, as directed by the State Department of State Hospitals, or other secure treatment facility for the care and treatment of the mentally disordered unless the court makes specific findings on the record that an alternative placement would provide more appropriate treatment for the defendant and would not pose a danger to the health and safety of others.
(iii)If the action against the defendant who has been found mentally incompetent is on a complaint charging a felony offense specified in Section 290 and the defendant has been denied bail pursuant to subdivision (b) of Section 12 of Article I of the California Constitution because the court has found, based upon clear and convincing evidence, a substantial likelihood that the persons release would result in great bodily harm to others, the court shall order that the defendant be delivered by the sheriff to a state hospital for the care and treatment of the mentally disordered, as directed by the State Department of State Hospitals, unless the court makes specific findings on the record that an alternative placement would provide more appropriate treatment for the defendant and would not pose a danger to the health and safety of others.
(iv)The clerk of the court shall notify the Department of Justice in writing of a finding of mental incompetence with respect to a defendant who is subject to clause (ii) or (iii) for inclusion in his or her state summary criminal history information.
(C)Upon the filing of a certificate of restoration to competence, the court shall order that the defendant be returned to court in accordance with Section 1372. The court shall transmit a copy of its order to the community program director or a designee.
(D)A defendant charged with a violent felony may not be delivered to a state hospital or treatment facility pursuant to this subdivision unless the state hospital or treatment facility has a secured perimeter or a locked and controlled treatment facility, and the judge determines that the public safety will be protected.
(E)For purposes of this paragraph, violent felony means an offense specified in subdivision (c) of Section 667.5.
(F)A defendant charged with a violent felony may be placed on outpatient status, as specified in Section 1600, only if the court finds that the placement will not pose a danger to the health or safety of others. If the court places a defendant charged with a violent felony on outpatient status, as specified in Section 1600, the court shall serve copies of the placement order on defense counsel, the sheriff in the county where the defendant will be placed, and the district attorney for the county in which the violent felony charges are pending against the defendant.
(2)Prior to making the order directing that the defendant be committed to the State Department of State Hospitals or other treatment facility or placed on outpatient status, the court shall proceed as follows:
(A)The court shall order the community program director or a designee to evaluate the defendant and to submit to the court within 15 judicial days of the order a written recommendation as to whether the defendant should be required to undergo outpatient treatment, or be committed to the State Department of State Hospitals or to any other treatment facility. A person shall not be admitted to a state hospital or other treatment facility or placed on outpatient status under this section without having been evaluated by the community program director or a designee. The community program director or designee shall evaluate the appropriate placement for the defendant between the State Department of State Hospitals, a county jail treatment facility, or the community-based residential treatment system based upon guidelines provided by the State Department of State Hospitals.
(B)The court shall hear and determine whether the defendant lacks capacity to make decisions regarding the administration of antipsychotic medication. The court shall consider opinions in the reports prepared pursuant to subdivision (a) of Section 1369, as applicable to the issue of whether the defendant lacks capacity to make decisions regarding the administration of antipsychotic medication, and shall proceed as follows:
(i)The court shall hear and determine whether any of the following is true:
(I)The defendant lacks capacity to make decisions regarding antipsychotic medication, the defendants mental disorder requires medical treatment with antipsychotic medication, and, if the defendants mental disorder is not treated with antipsychotic medication, it is probable that serious harm to the physical or mental health of the patient will result. Probability of serious harm to the physical or mental health of the defendant requires evidence that the defendant is presently suffering adverse effects to his or her physical or mental health, or the defendant has previously suffered these effects as a result of a mental disorder and his or her condition is substantially deteriorating. The fact that a defendant has a diagnosis of a mental disorder does not alone establish probability of serious harm to the physical or mental health of the defendant.
(II)The defendant is a danger to others, in that the defendant has inflicted, attempted to inflict, or made a serious threat of inflicting substantial physical harm on another while in custody, or the defendant had inflicted, attempted to inflict, or made a serious threat of inflicting substantial physical harm on another that resulted in his or her being taken into custody, and the defendant presents, as a result of mental disorder or mental defect, a demonstrated danger of inflicting substantial physical harm on others. Demonstrated danger may be based on an assessment of the defendants present mental condition, including a consideration of past behavior of the defendant within six years prior to the time the defendant last attempted to inflict, inflicted, or threatened to inflict substantial physical harm on another, and other relevant evidence.
(III)The people have charged the defendant with a serious crime against the person or property, involuntary administration of antipsychotic medication is substantially likely to render the defendant competent to stand trial, the medication is unlikely to have side effects that interfere with the defendants ability to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a reasonable manner, less intrusive treatments are unlikely to have substantially the same results, and antipsychotic medication is in the patients best medical interest in light of his or her medical condition.
(ii)If the court finds any of the conditions described in clause (i) to be true, the court shall issue an order authorizing involuntary administration of antipsychotic medication to the defendant when and as prescribed by the defendants treating psychiatrist at any facility housing the defendant for purposes of this chapter. The order shall be valid for no more than one year, pursuant to subparagraph (A) of paragraph (7). The court shall not order involuntary administration of psychotropic medication under subclause (III) of clause (i) unless the court has first found that the defendant does not meet the criteria for involuntary administration of psychotropic medication under subclause (I) of clause (i) and does not meet the criteria under subclause (II) of clause (i).
(iii)In all cases, the treating hospital, facility, or program may administer medically appropriate antipsychotic medication prescribed by a psychiatrist in an emergency as described in subdivision (m) of Section 5008 of the Welfare and Institutions Code.
(iv)If the court has determined that the defendant has the capacity to make decisions regarding antipsychotic medication, and if the defendant, with advice of his or her counsel, consents, the court order of commitment shall include confirmation that antipsychotic medication may be given to the defendant as prescribed by a treating psychiatrist pursuant to the defendants consent. The commitment order shall also indicate that, if the defendant withdraws consent for antipsychotic medication, after the treating psychiatrist complies with the provisions of subparagraph (C), the defendant shall be returned to court for a hearing in accordance with subparagraphs (C) and (D) regarding whether antipsychotic medication shall be administered involuntarily.
(v)If the court has determined that the defendant has the capacity to make decisions regarding antipsychotic medication and if the defendant, with advice from his or her counsel, does not consent, the court order for commitment shall indicate that, after the treating psychiatrist complies with the provisions of subparagraph (C), the defendant shall be returned to court for a hearing in accordance with subparagraphs (C) and (D) regarding whether antipsychotic medication shall be administered involuntarily.
(vi)A report made pursuant to paragraph (1) of subdivision (b) shall include a description of antipsychotic medication administered to the defendant and its effects and side effects, including effects on the defendants appearance or behavior that would affect the defendants ability to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a reasonable manner. During the time the defendant is confined in a state hospital or other treatment facility or placed on outpatient status, either the defendant or the people may request that the court review any order made pursuant to this subdivision. The defendant, to the same extent enjoyed by other patients in the state hospital or other treatment facility, shall have the right to contact the patients rights advocate regarding his or her rights under this section.
(C)If the defendant consented to antipsychotic medication as described in clause (iv) of subparagraph (B), but subsequently withdraws his or her consent, or, if involuntary antipsychotic medication was not ordered pursuant to clause (v) of subparagraph (B), and the treating psychiatrist determines that antipsychotic medication has become medically necessary and appropriate, the treating psychiatrist shall make efforts to obtain informed consent from the defendant for antipsychotic medication. If informed consent is not obtained from the defendant, and the treating psychiatrist is of the opinion that the defendant lacks capacity to make decisions regarding antipsychotic medication based on the conditions described in subclause (I) or (II) of clause (i) of subparagraph (B), the treating psychiatrist shall certify whether the lack of capacity and any applicable conditions described above exist. That certification shall contain an assessment of the current mental status of the defendant and the opinion of the treating psychiatrist that involuntary antipsychotic medication has become medically necessary and appropriate.
(D)(i)If the treating psychiatrist certifies that antipsychotic medication has become medically necessary and appropriate pursuant to subparagraph (C), antipsychotic medication may be administered to the defendant for not more than 21 days, provided, however, that, within 72 hours of the certification, the defendant is provided a medication review hearing before an administrative law judge to be conducted at the facility where the defendant is receiving treatment. The treating psychiatrist shall present the case for the certification for involuntary treatment and the defendant shall be represented by an attorney or a patients rights advocate. The attorney or patients rights advocate shall be appointed to meet with the defendant no later than one day prior to the medication review hearing to review the defendants rights at the medication review hearing, discuss the process, answer questions or concerns regarding involuntary medication or the hearing, assist the defendant in preparing for the hearing and advocating for his or her interests at the hearing, review the panels final determination following the hearing, advise the defendant of his or her right to judicial review of the panels decision, and provide the defendant with referral information for legal advice on the subject. The defendant shall also have the following rights with respect to the medication review hearing:
(I)To be given timely access to the defendants records.
(II) To be present at the hearing, unless the defendant waives that right.
(III)To present evidence at the hearing.
(IV)To question persons presenting evidence supporting involuntary medication.
(V)To make reasonable requests for attendance of witnesses on the defendants behalf.
(VI)To a hearing conducted in an impartial and informal manner.
(ii)If the administrative law judge determines that the defendant either meets the criteria specified in subclause (I) of clause (i) of subparagraph (B), or meets the criteria specified in subclause (II) of clause (i) of subparagraph (B), then antipsychotic medication may continue to be administered to the defendant for the 21-day certification period. Concurrently with the treating psychiatrists certification, the treating psychiatrist shall file a copy of the certification and a petition with the court for issuance of an order to administer antipsychotic medication beyond the 21-day certification period. For purposes of this subparagraph, the treating psychiatrist shall not be required to pay or deposit any fee for the filing of the petition or other document or paper related to the petition.
(iii)If the administrative law judge disagrees with the certification, medication may not be administered involuntarily until the court determines that antipsychotic medication should be administered pursuant to this section.
(iv)The court shall provide notice to the prosecuting attorney and to the attorney representing the defendant, and shall hold a hearing, no later than 18 days from the date of the certification, to determine whether antipsychotic medication should be ordered beyond the certification period.
(v)If, as a result of the hearing, the court determines that antipsychotic medication should be administered beyond the certification period, the court shall issue an order authorizing the administration of that medication.
(vi)The court shall render its decision on the petition and issue its order no later than three calendar days after the hearing and, in any event, no later than the expiration of the 21-day certification period.
(vii)If the administrative law judge upholds the certification pursuant to clause (ii), the court may, for a period not to exceed 14 days, extend the certification and continue the hearing pursuant to stipulation between the parties or upon a finding of good cause. In determining good cause, the court may review the petition filed with the court, the administrative law judges order, and any additional testimony needed by the court to determine if it is appropriate to continue medication beyond the 21-day certification and for a period of up to 14 days.
(viii)The district attorney, county counsel, or representative of a facility where a defendant found incompetent to stand trial is committed may petition the court for an order to administer involuntary medication pursuant to the criteria set forth in subclauses (II) and (III) of clause (i) of subparagraph (B). The order is reviewable as provided in paragraph (7).
(3)When the court orders that the defendant be committed to the State Department of State Hospitals or other public or private treatment facility, the court shall provide copies of the following documents prior to the admission of the defendant to the State Department of State Hospitals or other treatment facility where the defendant is to be committed:
(A)The commitment order, including a specification of the charges.
(B)A computation or statement setting forth the maximum term of commitment in accordance with subdivision (c).
(C)A computation or statement setting forth the amount of credit for time served, if any, to be deducted from the maximum term of commitment.
(D)State summary criminal history information.
(E)Arrest reports prepared by the police department or other law enforcement agency.
(F)Court-ordered psychiatric examination or evaluation reports.
(G)The community program directors placement recommendation report.
(H)Records of a finding of mental incompetence pursuant to this chapter arising out of a complaint charging a felony offense specified in Section 290 or a pending Section 1368 proceeding arising out of a charge of a Section 290 offense.
(I)Medical records.
(4)When the defendant is committed to a treatment facility pursuant to clause (i) of subparagraph (B) of paragraph (1) or the court makes the findings specified in clause (ii) or (iii) of subparagraph (B) of paragraph (1) to assign the defendant to a treatment facility other than a state hospital or other secure treatment facility, the court shall order that notice be given to the appropriate law enforcement agency or agencies having local jurisdiction at the site of the placement facility of any finding of mental incompetence pursuant to this chapter arising out of a charge of a Section 290 offense.
(5)When directing that the defendant be confined in a state hospital pursuant to this subdivision, the court shall commit the patient to the State Department of State Hospitals.
(6)(A)If the defendant is committed or transferred to the State Department of State Hospitals pursuant to this section, the court may, upon receiving the written recommendation of the medical director of the state hospital and the community program director that the defendant be transferred to a public or private treatment facility approved by the community program director, order the defendant transferred to that facility. If the defendant is committed or transferred to a public or private treatment facility approved by the community program director, the court may, upon receiving the written recommendation of the community program director, transfer the defendant to the State Department of State Hospitals or to another public or private treatment facility approved by the community program director. In the event of dismissal of the criminal charges before the defendant recovers competence, the person shall be subject to the applicable provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code). If either the defendant or the prosecutor chooses to contest either kind of order of transfer, a petition may be filed in the court for a hearing, which shall be held if the court determines that sufficient grounds exist. At the hearing, the prosecuting attorney or the defendant may present evidence bearing on the order of transfer. The court shall use the same standards as are used in conducting probation revocation hearings pursuant to Section 1203.2.
Prior to making an order for transfer under this section, the court shall notify the defendant, the attorney of record for the defendant, the prosecuting attorney, and the community program director or a designee.
(B)If the defendant is initially committed to the State Department of State Hospitals or secure treatment facility pursuant to clause (ii) or (iii) of subparagraph (B) of paragraph (1) and is subsequently transferred to any other facility, copies of the documents specified in paragraph (3) shall be taken with the defendant to each subsequent facility to which the defendant is transferred. The transferring facility shall also notify the appropriate law enforcement agency or agencies having local jurisdiction at the site of the new facility that the defendant is a person subject to clause (ii) or (iii) of subparagraph (B) of paragraph (1).
(7)(A)An order by the court authorizing involuntary medication of the defendant shall be valid for no more than one year. The court shall review the order at the time of the review of the initial report and the six-month progress reports pursuant to paragraph (1) of subdivision (b) to determine if the grounds for the authorization remain. In the review, the court shall consider the reports of the treating psychiatrist or psychiatrists and the defendants patients rights advocate or attorney. The court may require testimony from the treating psychiatrist and the patients rights advocate or attorney, if necessary. The court may continue the order authorizing involuntary medication for up to another six months, or vacate the order, or make any other appropriate order.
(B)Within 60 days before the expiration of the one-year involuntary medication order, the district attorney, county counsel, or representative of any facility where a defendant found incompetent to stand trial is committed may petition the committing court for a renewal, subject to the same conditions and requirements as in subparagraph (A). The petition shall include the basis for involuntary medication set forth in clause (i) of subparagraph (B) of paragraph (2). Notice of the petition shall be provided to the defendant, the defendants attorney, and the district attorney. The court shall hear and determine whether the defendant continues to meet the criteria set forth in clause (i) of subparagraph (B) of paragraph (2). The hearing on any petition to renew an order for involuntary medication shall be conducted prior to the expiration of the current order.
(8)For purposes of subparagraph (D) of paragraph (2) and paragraph (7), if the treating psychiatrist determines that there is a need, based on preserving his or her rapport with the patient or preventing harm, the treating psychiatrist may request that the facility medical director designate another psychiatrist to act in the place of the treating psychiatrist. If the medical director of the facility designates another psychiatrist to act pursuant to this paragraph, the treating psychiatrist shall brief the acting psychiatrist of the relevant facts of the case and the acting psychiatrist shall examine the patient prior to the hearing.
(b)(1)Within 90 days of a commitment made pursuant to subdivision (a), the medical director of the state hospital or other treatment facility to which the defendant is confined shall make a written report to the court and the community program director for the county or region of commitment, or a designee, concerning the defendants progress toward recovery of mental competence and whether the administration of antipsychotic medication remains necessary. If the defendant is on outpatient status, the outpatient treatment staff shall make a written report to the community program director concerning the defendants progress toward recovery of mental competence. Within 90 days of placement on outpatient status, the community program director shall report to the court on this matter. If the defendant has not recovered mental competence, but the report discloses a substantial likelihood that the defendant will regain mental competence in the foreseeable future, the defendant shall remain in the state hospital or other treatment facility or on outpatient status. Thereafter, at six-month intervals or until the defendant becomes mentally competent, if the defendant is confined in a treatment facility, the medical director of the hospital or person in charge of the facility shall report in writing to the court and the community program director or a designee regarding the defendants progress toward recovery of mental competence and whether the administration of antipsychotic medication remains necessary. If the defendant is on outpatient status, after the initial 90-day report, the outpatient treatment staff shall report to the community program director on the defendants progress toward recovery, and the community program director shall report to the court on this matter at six-month intervals. A copy of these reports shall be provided to the prosecutor and defense counsel by the court.
(A)If the report indicates that there is no substantial likelihood that the defendant will regain mental competence in the foreseeable future, the committing court shall order the defendant to be returned to the court for proceedings pursuant to paragraph (2) of subdivision (c) no later than 10 days following receipt of the report. The court shall transmit a copy of its order to the community program director or a designee.
(B)If the report indicates that there is no substantial likelihood that the defendant will regain mental competence in the foreseeable future, the medical director of the state hospital or other treatment facility to which the defendant is confined shall do both of the following:
(i)Promptly notify and provide a copy of the report to the defense counsel and the district attorney.
(ii)Provide a separate notification, in compliance with applicable privacy laws, to the committing countys sheriff that transportation will be needed for the patient.
(2)If the court has issued an order authorizing the treating facility to involuntarily administer antipsychotic medication to the defendant, the reports made pursuant to paragraph (1) concerning the defendants progress toward regaining competency shall also consider the issue of involuntary medication. Each report shall include, but is not limited to, all of the following:
(A)Whether or not the defendant has the capacity to make decisions concerning antipsychotic medication.
(B)If the defendant lacks capacity to make decisions concerning antipsychotic medication, whether the defendant risks serious harm to his or her physical or mental health if not treated with antipsychotic medication.
(C)Whether or not the defendant presents a danger to others if he or she is not treated with antipsychotic medication.
(D)Whether the defendant has a mental illness for which medications are the only effective treatment.
(E)Whether there are any side effects from the medication currently being experienced by the defendant that would interfere with the defendants ability to collaborate with counsel.
(F)Whether there are any effective alternatives to medication.
(G)How quickly the medication is likely to bring the defendant to competency.
(H)Whether the treatment plan includes methods other than medication to restore the defendant to competency.
(I)A statement, if applicable, that no medication is likely to restore the defendant to competency.
(3)After reviewing the reports, the court shall determine whether or not grounds for the order authorizing involuntary administration of antipsychotic medication still exist and shall do one of the following:
(A)If the original grounds for involuntary medication still exist, the order authorizing the treating facility to involuntarily administer antipsychotic medication to the defendant shall remain in effect.
(B)If the original grounds for involuntary medication no longer exist, and there is no other basis for involuntary administration of antipsychotic medication, the order for the involuntary administration of antipsychotic medication shall be vacated.
(C)If the original grounds for involuntary medication no longer exist, and the report states that there is another basis for involuntary administration of antipsychotic medication, the court shall set a hearing within 21 days to determine whether the order for the involuntary administration of antipsychotic medication shall be vacated or whether a new order for the involuntary administration of antipsychotic medication shall be issued. The hearing shall proceed as set forth in subparagraph (B) of paragraph (2) of subdivision (a).
(4)Any defendant who has been committed or has been on outpatient status for 18 months and is still hospitalized or on outpatient status shall be returned to the committing court where a hearing shall be held pursuant to the procedures set forth in Section 1369. The court shall transmit a copy of its order to the community program director or a designee.
(5)If it is determined by the court that no treatment for the defendants mental impairment is being conducted, the defendant shall be returned to the committing court. The court shall transmit a copy of its order to the community program director or a designee.
(6)At each review by the court specified in this subdivision, the court shall determine if the security level of housing and treatment is appropriate and may make an order in accordance with its determination. If the court determines that the defendant shall continue to be treated in the state hospital or on an outpatient basis, the court shall determine issues concerning administration of antipsychotic medication, as set forth in subparagraph (B) of paragraph (2) of subdivision (a).
(c)(1)At the end of three years from the date of commitment or a period of commitment equal to the maximum term of imprisonment provided by law for the most serious offense charged in the information, indictment, or misdemeanor complaint, or the maximum term of imprisonment provided by law for a violation of probation or mandatory supervision, whichever is shorter, but no later than 90 days prior to the expiration of the defendants term of commitment, a defendant who has not recovered mental competence shall be returned to the committing court. The court shall notify the community program director or a designee of the return and of any resulting court orders.
(2)Whenever a defendant is returned to the court pursuant to paragraph (1) or (4) of subdivision (b) or paragraph (1) of this subdivision and it appears to the court that the defendant is gravely disabled, as defined in subparagraph (B) of paragraph (1) of subdivision (h) of Section 5008 of the Welfare and Institutions Code, the court shall order the conservatorship investigator of the county of commitment of the defendant to initiate conservatorship proceedings for the defendant pursuant to Chapter 3 (commencing with Section 5350) of Part 1 of Division 5 of the Welfare and Institutions Code. Hearings required in the conservatorship proceedings shall be held in the superior court in the county that ordered the commitment. The court shall transmit a copy of the order directing initiation of conservatorship proceedings to the community program director or a designee, the sheriff and the district attorney of the county in which criminal charges are pending, and the defendants counsel of record. The court shall notify the community program director or a designee, the sheriff and district attorney of the county in which criminal charges are pending, and the defendants counsel of record of the outcome of the conservatorship proceedings.
(3)If a change in placement is proposed for a defendant who is committed pursuant to subparagraph (B) of paragraph (1) of subdivision (h) of Section 5008 of the Welfare and Institutions Code, the court shall provide notice and an opportunity to be heard with respect to the proposed placement of the defendant to the sheriff and the district attorney of the county in which the criminal charges or revocation proceedings are pending.
(4)If the defendant is confined in a treatment facility, a copy of any report to the committing court regarding the defendants progress toward recovery of mental competence shall be provided by the committing court to the prosecutor and to the defense counsel.
(d)With the exception of proceedings alleging a violation of mandatory supervision, the criminal action remains subject to dismissal pursuant to Section 1385. If the criminal action is dismissed, the court shall transmit a copy of the order of dismissal to the community program director or a designee. In a proceeding alleging a violation of mandatory supervision, if the person is not placed under a conservatorship as described in paragraph (2) of subdivision (c), or if a conservatorship is terminated, the court shall reinstate mandatory supervision and may modify the terms and conditions of supervision to include appropriate mental health treatment or refer the matter to a local mental health court, reentry court, or other collaborative justice court available for improving the mental health of the defendant.
(e)If the criminal action against the defendant is dismissed, the defendant shall be released from commitment ordered under this section, but without prejudice to the initiation of any proceedings that may be appropriate under the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code).
(f)As used in this chapter, community program director means the person, agency, or entity designated by the State Department of State Hospitals pursuant to Section 1605 of this code and Section 4360 of the Welfare and Institutions Code.
(g)For the purpose of this section, secure treatment facility shall not include, except for state mental hospitals, state developmental centers, and correctional treatment facilities, any facility licensed pursuant to Chapter 2 (commencing with Section 1250) of, Chapter 3 (commencing with Section 1500) of, or Chapter 3.2 (commencing with Section 1569) of, Division 2 of the Health and Safety Code, or any community board and care facility.
(h)Nothing in this section shall preclude a defendant from filing a petition for habeas corpus to challenge the continuing validity of an order authorizing a treatment facility or outpatient program to involuntarily administer antipsychotic medication to a person being treated as incompetent to stand trial.
(a)(1)(A)If the defendant is found mentally competent, the criminal process shall resume, the trial on the offense charged or hearing on the alleged violation shall proceed, and judgment may be pronounced.
(B)If the defendant is found mentally incompetent, the trial, the hearing on the alleged violation, or the judgment shall be suspended until the person becomes mentally competent.
(i)In the meantime, the court shall order that the mentally incompetent defendant be delivered by the sheriff to a state hospital for the care and treatment of the mentally disordered, as directed by the State Department of State Hospitals, or to any other available public or private treatment facility, including a county jail treatment facility or the community-based residential treatment system established pursuant to Article 1 (commencing with Section 5670) of Chapter 2.5 of Part 2 of Division 5 of the Welfare and Institutions Code if the facility has a secured perimeter or a locked and controlled treatment facility, approved by the community program director that will promote the defendants speedy restoration to mental competence, or placed on outpatient status as specified in Section 1600.
(ii)However, if the action against the defendant who has been found mentally incompetent is on a complaint charging a felony offense specified in Section 290, the prosecutor shall determine whether the defendant previously has been found mentally incompetent to stand trial pursuant to this chapter on a charge of a Section 290 offense, or whether the defendant is currently the subject of a pending Section 1368 proceeding arising out of a charge of a Section 290 offense. If either determination is made, the prosecutor shall so notify the court and defendant in writing. After this notification, and opportunity for hearing, the court shall order that the defendant be delivered by the sheriff to a state hospital, as directed by the State Department of State Hospitals, or other secure treatment facility for the care and treatment of the mentally disordered unless the court makes specific findings on the record that an alternative placement would provide more appropriate treatment for the defendant and would not pose a danger to the health and safety of others.
(iii)If the action against the defendant who has been found mentally incompetent is on a complaint charging a felony offense specified in Section 290 and the defendant has been denied bail pursuant to subdivision (b) of Section 12 of Article I of the California Constitution because the court has found, based upon clear and convincing evidence, a substantial likelihood that the persons release would result in great bodily harm to others, the court shall order that the defendant be delivered by the sheriff to a state hospital for the care and treatment of the mentally disordered, as directed by the State Department of State Hospitals, unless the court makes specific findings on the record that an alternative placement would provide more appropriate treatment for the defendant and would not pose a danger to the health and safety of others.
(iv)The clerk of the court shall notify the Department of Justice in writing of a finding of mental incompetence with respect to a defendant who is subject to clause (ii) or (iii) for inclusion in his or her state summary criminal history information.
(C)Upon the filing of a certificate of restoration to competence, the court shall order that the defendant be returned to court in accordance with Section 1372. The court shall transmit a copy of its order to the community program director or a designee.
(D)A defendant charged with a violent felony may not be delivered to a state hospital or treatment facility pursuant to this subdivision unless the state hospital or treatment facility has a secured perimeter or a locked and controlled treatment facility, and the judge determines that the public safety will be protected.
(E)For purposes of this paragraph, violent felony means an offense specified in subdivision (c) of Section 667.5.
(F)A defendant charged with a violent felony may be placed on outpatient status, as specified in Section 1600, only if the court finds that the placement will not pose a danger to the health or safety of others. If the court places a defendant charged with a violent felony on outpatient status, as specified in Section 1600, the court shall serve copies of the placement order on defense counsel, the sheriff in the county where the defendant will be placed, and the district attorney for the county in which the violent felony charges are pending against the defendant.
(2)Prior to making the order directing that the defendant be committed to the State Department of State Hospitals or other treatment facility or placed on outpatient status, the court shall proceed as follows:
(A)The court shall order the community program director or a designee to evaluate the defendant and to submit to the court within 15 judicial days of the order a written recommendation as to whether the defendant should be required to undergo outpatient treatment, or be committed to the State Department of State Hospitals or to any other treatment facility. A person shall not be admitted to a state hospital or other treatment facility or placed on outpatient status under this section without having been evaluated by the community program director or a designee. The community program director or designee shall evaluate the appropriate placement for the defendant between the State Department of State Hospitals, a county jail treatment facility, or the community-based residential treatment system based upon guidelines provided by the State Department of State Hospitals.
(B)The court shall hear and determine whether the defendant lacks capacity to make decisions regarding the administration of antipsychotic medication. The court shall consider opinions in the reports prepared pursuant to subdivision (a) of Section 1369, as applicable to the issue of whether the defendant lacks capacity to make decisions regarding the administration of antipsychotic medication, and shall proceed as follows:
(i)The court shall hear and determine whether any of the following is true:
(I)The defendant lacks capacity to make decisions regarding antipsychotic medication, the defendants mental disorder requires medical treatment with antipsychotic medication, and, if the defendants mental disorder is not treated with antipsychotic medication, it is probable that serious harm to the physical or mental health of the patient will result. Probability of serious harm to the physical or mental health of the defendant requires evidence that the defendant is presently suffering adverse effects to his or her physical or mental health, or the defendant has previously suffered these effects as a result of a mental disorder and his or her condition is substantially deteriorating. The fact that a defendant has a diagnosis of a mental disorder does not alone establish probability of serious harm to the physical or mental health of the defendant.
(II)The defendant is a danger to others, in that the defendant has inflicted, attempted to inflict, or made a serious threat of inflicting substantial physical harm on another while in custody, or the defendant had inflicted, attempted to inflict, or made a serious threat of inflicting substantial physical harm on another that resulted in his or her being taken into custody, and the defendant presents, as a result of mental disorder or mental defect, a demonstrated danger of inflicting substantial physical harm on others. Demonstrated danger may be based on an assessment of the defendants present mental condition, including a consideration of past behavior of the defendant within six years prior to the time the defendant last attempted to inflict, inflicted, or threatened to inflict substantial physical harm on another, and other relevant evidence.
(III)The people have charged the defendant with a serious crime against the person or property, involuntary administration of antipsychotic medication is substantially likely to render the defendant competent to stand trial, the medication is unlikely to have side effects that interfere with the defendants ability to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a reasonable manner, less intrusive treatments are unlikely to have substantially the same results, and antipsychotic medication is in the patients best medical interest in light of his or her medical condition.
(ii)If the court finds any of the conditions described in clause (i) to be true, the court shall issue an order authorizing involuntary administration of antipsychotic medication to the defendant when and as prescribed by the defendants treating psychiatrist at any facility housing the defendant for purposes of this chapter. The order shall be valid for no more than one year, pursuant to subparagraph (A) of paragraph (7). The court shall not order involuntary administration of psychotropic medication under subclause (III) of clause (i) unless the court has first found that the defendant does not meet the criteria for involuntary administration of psychotropic medication under subclause (I) of clause (i) and does not meet the criteria under subclause (II) of clause (i).
(iii)In all cases, the treating hospital, facility, or program may administer medically appropriate antipsychotic medication prescribed by a psychiatrist in an emergency as described in subdivision (m) of Section 5008 of the Welfare and Institutions Code.
(iv)If the court has determined that the defendant has the capacity to make decisions regarding antipsychotic medication, and if the defendant, with advice of his or her counsel, consents, the court order of commitment shall include confirmation that antipsychotic medication may be given to the defendant as prescribed by a treating psychiatrist pursuant to the defendants consent. The commitment order shall also indicate that, if the defendant withdraws consent for antipsychotic medication, after the treating psychiatrist complies with the provisions of subparagraph (C), the defendant shall be returned to court for a hearing in accordance with subparagraphs (C) and (D) regarding whether antipsychotic medication shall be administered involuntarily.
(v)If the court has determined that the defendant has the capacity to make decisions regarding antipsychotic medication and if the defendant, with advice from his or her counsel, does not consent, the court order for commitment shall indicate that, after the treating psychiatrist complies with the provisions of subparagraph (C), the defendant shall be returned to court for a hearing in accordance with subparagraphs (C) and (D) regarding whether antipsychotic medication shall be administered involuntarily.
(vi)A report made pursuant to paragraph (1) of subdivision (b) shall include a description of antipsychotic medication administered to the defendant and its effects and side effects, including effects on the defendants appearance or behavior that would affect the defendants ability to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a reasonable manner. During the time the defendant is confined in a state hospital or other treatment facility or placed on outpatient status, either the defendant or the people may request that the court review any order made pursuant to this subdivision. The defendant, to the same extent enjoyed by other patients in the state hospital or other treatment facility, shall have the right to contact the patients rights advocate regarding his or her rights under this section.
(C)If the defendant consented to antipsychotic medication as described in clause (iv) of subparagraph (B), but subsequently withdraws his or her consent, or, if involuntary antipsychotic medication was not ordered pursuant to clause (v) of subparagraph (B), and the treating psychiatrist determines that antipsychotic medication has become medically necessary and appropriate, the treating psychiatrist shall make efforts to obtain informed consent from the defendant for antipsychotic medication. If informed consent is not obtained from the defendant, and the treating psychiatrist is of the opinion that the defendant lacks capacity to make decisions regarding antipsychotic medication based on the conditions described in subclause (I) or (II) of clause (i) of subparagraph (B), the treating psychiatrist shall certify whether the lack of capacity and any applicable conditions described above exist. That certification shall contain an assessment of the current mental status of the defendant and the opinion of the treating psychiatrist that involuntary antipsychotic medication has become medically necessary and appropriate.
(D)(i)If the treating psychiatrist certifies that antipsychotic medication has become medically necessary and appropriate pursuant to subparagraph (C), antipsychotic medication may be administered to the defendant for not more than 21 days, provided, however, that, within 72 hours of the certification, the defendant is provided a medication review hearing before an administrative law judge to be conducted at the facility where the defendant is receiving treatment. The treating psychiatrist shall present the case for the certification for involuntary treatment and the defendant shall be represented by an attorney or a patients rights advocate. The attorney or patients rights advocate shall be appointed to meet with the defendant no later than one day prior to the medication review hearing to review the defendants rights at the medication review hearing, discuss the process, answer questions or concerns regarding involuntary medication or the hearing, assist the defendant in preparing for the hearing and advocating for his or her interests at the hearing, review the panels final determination following the hearing, advise the defendant of his or her right to judicial review of the panels decision, and provide the defendant with referral information for legal advice on the subject. The defendant shall also have the following rights with respect to the medication review hearing:
(I)To be given timely access to the defendants records.
(II) To be present at the hearing, unless the defendant waives that right.
(III)To present evidence at the hearing.
(IV)To question persons presenting evidence supporting involuntary medication.
(V)To make reasonable requests for attendance of witnesses on the defendants behalf.
(VI)To a hearing conducted in an impartial and informal manner.
(ii)If the administrative law judge determines that the defendant either meets the criteria specified in subclause (I) of clause (i) of subparagraph (B), or meets the criteria specified in subclause (II) of clause (i) of subparagraph (B), then antipsychotic medication may continue to be administered to the defendant for the 21-day certification period. Concurrently with the treating psychiatrists certification, the treating psychiatrist shall file a copy of the certification and a petition with the court for issuance of an order to administer antipsychotic medication beyond the 21-day certification period. For purposes of this subparagraph, the treating psychiatrist shall not be required to pay or deposit any fee for the filing of the petition or other document or paper related to the petition.
(iii)If the administrative law judge disagrees with the certification, medication may not be administered involuntarily until the court determines that antipsychotic medication should be administered pursuant to this section.
(iv)The court shall provide notice to the prosecuting attorney and to the attorney representing the defendant, and shall hold a hearing, no later than 18 days from the date of the certification, to determine whether antipsychotic medication should be ordered beyond the certification period.
(v)If, as a result of the hearing, the court determines that antipsychotic medication should be administered beyond the certification period, the court shall issue an order authorizing the administration of that medication.
(vi)The court shall render its decision on the petition and issue its order no later than three calendar days after the hearing and, in any event, no later than the expiration of the 21-day certification period.
(vii)If the administrative law judge upholds the certification pursuant to clause (ii), the court may, for a period not to exceed 14 days, extend the certification and continue the hearing pursuant to stipulation between the parties or upon a finding of good cause. In determining good cause, the court may review the petition filed with the court, the administrative law judges order, and any additional testimony needed by the court to determine if it is appropriate to continue medication beyond the 21-day certification and for a period of up to 14 days.
(viii)The district attorney, county counsel, or representative of a facility where a defendant found incompetent to stand trial is committed may petition the court for an order to administer involuntary medication pursuant to the criteria set forth in subclauses (II) and (III) of clause (i) of subparagraph (B). The order is reviewable as provided in paragraph (7).
(3)When the court orders that the defendant be committed to the State Department of State Hospitals or other public or private treatment facility, the court shall provide copies of the following documents prior to the admission of the defendant to the State Department of State Hospitals or other treatment facility where the defendant is to be committed:
(A)The commitment order, including a specification of the charges.
(B)A computation or statement setting forth the maximum term of commitment in accordance with subdivision (c).
(C)A computation or statement setting forth the amount of credit for time served, if any, to be deducted from the maximum term of commitment.
(D)State summary criminal history information.
(E)Arrest reports prepared by the police department or other law enforcement agency.
(F)Court-ordered psychiatric examination or evaluation reports.
(G)The community program directors placement recommendation report.
(H)Records of a finding of mental incompetence pursuant to this chapter arising out of a complaint charging a felony offense specified in Section 290 or a pending Section 1368 proceeding arising out of a charge of a Section 290 offense.
(I)Medical records.
(4)When the defendant is committed to a treatment facility pursuant to clause (i) of subparagraph (B) of paragraph (1) or the court makes the findings specified in clause (ii) or (iii) of subparagraph (B) of paragraph (1) to assign the defendant to a treatment facility other than a state hospital or other secure treatment facility, the court shall order that notice be given to the appropriate law enforcement agency or agencies having local jurisdiction at the site of the placement facility of any finding of mental incompetence pursuant to this chapter arising out of a charge of a Section 290 offense.
(5)When directing that the defendant be confined in a state hospital pursuant to this subdivision, the court shall commit the patient to the State Department of State Hospitals.
(6)(A)If the defendant is committed or transferred to the State Department of State Hospitals pursuant to this section, the court may, upon receiving the written recommendation of the medical director of the state hospital and the community program director that the defendant be transferred to a public or private treatment facility approved by the community program director, order the defendant transferred to that facility. If the defendant is committed or transferred to a public or private treatment facility approved by the community program director, the court may, upon receiving the written recommendation of the community program director, transfer the defendant to the State Department of State Hospitals or to another public or private treatment facility approved by the community program director. In the event of dismissal of the criminal charges before the defendant recovers competence, the person shall be subject to the applicable provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code). If either the defendant or the prosecutor chooses to contest either kind of order of transfer, a petition may be filed in the court for a hearing, which shall be held if the court determines that sufficient grounds exist. At the hearing, the prosecuting attorney or the defendant may present evidence bearing on the order of transfer. The court shall use the same standards as are used in conducting probation revocation hearings pursuant to Section 1203.2.
Prior to making an order for transfer under this section, the court shall notify the defendant, the attorney of record for the defendant, the prosecuting attorney, and the community program director or a designee.
(B)If the defendant is initially committed to the State Department of State Hospitals or secure treatment facility pursuant to clause (ii) or (iii) of subparagraph (B) of paragraph (1) and is subsequently transferred to any other facility, copies of the documents specified in paragraph (3) shall be taken with the defendant to each subsequent facility to which the defendant is transferred. The transferring facility shall also notify the appropriate law enforcement agency or agencies having local jurisdiction at the site of the new facility that the defendant is a person subject to clause (ii) or (iii) of subparagraph (B) of paragraph (1).
(7)(A)An order by the court authorizing involuntary medication of the defendant shall be valid for no more than one year. The court shall review the order at the time of the review of the initial report and the six-month progress reports pursuant to paragraph (1) of subdivision (b) to determine if the grounds for the authorization remain. In the review, the court shall consider the reports of the treating psychiatrist or psychiatrists and the defendants patients rights advocate or attorney. The court may require testimony from the treating psychiatrist and the patients rights advocate or attorney, if necessary. The court may continue the order authorizing involuntary medication for up to another six months, or vacate the order, or make any other appropriate order.
(B)Within 60 days before the expiration of the one-year involuntary medication order, the district attorney, county counsel, or representative of any facility where a defendant found incompetent to stand trial is committed may petition the committing court for a renewal, subject to the same conditions and requirements as in subparagraph (A). The petition shall include the basis for involuntary medication set forth in clause (i) of subparagraph (B) of paragraph (2). Notice of the petition shall be provided to the defendant, the defendants attorney, and the district attorney. The court shall hear and determine whether the defendant continues to meet the criteria set forth in clause (i) of subparagraph (B) of paragraph (2). The hearing on any petition to renew an order for involuntary medication shall be conducted prior to the expiration of the current order.
(8)For purposes of subparagraph (D) of paragraph (2) and paragraph (7), if the treating psychiatrist determines that there is a need, based on preserving his or her rapport with the patient or preventing harm, the treating psychiatrist may request that the facility medical director designate another psychiatrist to act in the place of the treating psychiatrist. If the medical director of the facility designates another psychiatrist to act pursuant to this paragraph, the treating psychiatrist shall brief the acting psychiatrist of the relevant facts of the case and the acting psychiatrist shall examine the patient prior to the hearing.
(b)(1)Within 90 days of a commitment made pursuant to subdivision (a), the medical director of the state hospital or other treatment facility to which the defendant is confined shall make a written report to the court and the community program director for the county or region of commitment, or a designee, concerning the defendants progress toward recovery of mental competence and whether the administration of antipsychotic medication remains necessary. If the defendant is on outpatient status, the outpatient treatment staff shall make a written report to the community program director concerning the defendants progress toward recovery of mental competence. Within 90 days of placement on outpatient status, the community program director shall report to the court on this matter. If the defendant has not recovered mental competence, but the report discloses a substantial likelihood that the defendant will regain mental competence in the foreseeable future, the defendant shall remain in the state hospital or other treatment facility or on outpatient status. Thereafter, at six-month intervals or until the defendant becomes mentally competent, if the defendant is confined in a treatment facility, the medical director of the hospital or person in charge of the facility shall report in writing to the court and the community program director or a designee regarding the defendants progress toward recovery of mental competence and whether the administration of antipsychotic medication remains necessary. If the defendant is on outpatient status, after the initial 90-day report, the outpatient treatment staff shall report to the community program director on the defendants progress toward recovery, and the community program director shall report to the court on this matter at six-month intervals. A copy of these reports shall be provided to the prosecutor and defense counsel by the court.
(A)If the report indicates that there is no substantial likelihood that the defendant will regain mental competence in the foreseeable future, the committing court shall order the defendant to be returned to the court for proceedings pursuant to paragraph (2) of subdivision (c) no later than 10 days following receipt of the report. The court shall transmit a copy of its order to the community program director or a designee.
(B)If the report indicates that there is no substantial likelihood that the defendant will regain mental competence in the foreseeable future, the medical director of the state hospital or other treatment facility to which the defendant is confined shall do both of the following:
(i)Promptly notify and provide a copy of the report to the defense counsel and the district attorney.
(ii)Provide a separate notification, in compliance with applicable privacy laws, to the committing countys sheriff that transportation will be needed for the patient.
(2)If the court has issued an order authorizing the treating facility to involuntarily administer antipsychotic medication to the defendant, the reports made pursuant to paragraph (1) concerning the defendants progress toward regaining competency shall also consider the issue of involuntary medication. Each report shall include, but is not limited to, all of the following:
(A)Whether or not the defendant has the capacity to make decisions concerning antipsychotic medication.
(B)If the defendant lacks capacity to make decisions concerning antipsychotic medication, whether the defendant risks serious harm to his or her physical or mental health if not treated with antipsychotic medication.
(C)Whether or not the defendant presents a danger to others if he or she is not treated with antipsychotic medication.
(D)Whether the defendant has a mental illness for which medications are the only effective treatment.
(E)Whether there are any side effects from the medication currently being experienced by the defendant that would interfere with the defendants ability to collaborate with counsel.
(F)Whether there are any effective alternatives to medication.
(G)How quickly the medication is likely to bring the defendant to competency.
(H)Whether the treatment plan includes methods other than medication to restore the defendant to competency.
(I)A statement, if applicable, that no medication is likely to restore the defendant to competency.
(3)After reviewing the reports, the court shall determine whether or not grounds for the order authorizing involuntary administration of antipsychotic medication still exist and shall do one of the following:
(A)If the original grounds for involuntary medication still exist, the order authorizing the treating facility to involuntarily administer antipsychotic medication to the defendant shall remain in effect.
(B)If the original grounds for involuntary medication no longer exist, and there is no other basis for involuntary administration of antipsychotic medication, the order for the involuntary administration of antipsychotic medication shall be vacated.
(C)If the original grounds for involuntary medication no longer exist, and the report states that there is another basis for involuntary administration of antipsychotic medication, the court shall set a hearing within 21 days to determine whether the order for the involuntary administration of antipsychotic medication shall be vacated or whether a new order for the involuntary administration of antipsychotic medication shall be issued. The hearing shall proceed as set forth in subparagraph (B) of paragraph (2) of subdivision (a).
(4)Any defendant who has been committed or has been on outpatient status for 18 months and is still hospitalized or on outpatient status shall be returned to the committing court where a hearing shall be held pursuant to the procedures set forth in Section 1369. The court shall transmit a copy of its order to the community program director or a designee.
(5)If it is determined by the court that no treatment for the defendants mental impairment is being conducted, the defendant shall be returned to the committing court. The court shall transmit a copy of its order to the community program director or a designee.
(6)At each review by the court specified in this subdivision, the court shall determine if the security level of housing and treatment is appropriate and may make an order in accordance with its determination. If the court determines that the defendant shall continue to be treated in the state hospital or on an outpatient basis, the court shall determine issues concerning administration of antipsychotic medication, as set forth in subparagraph (B) of paragraph (2) of subdivision (a).
(c)(1)At the end of three years from the date of commitment or a period of commitment equal to the maximum term of imprisonment provided by law for the most serious offense charged in the information, indictment, or misdemeanor complaint, or the maximum term of imprisonment provided by law for a violation of probation or mandatory supervision, whichever is shorter, but no later than 90 days prior to the expiration of the defendants term of commitment, a defendant who has not recovered mental competence shall be returned to the committing court. The court shall notify the community program director or a designee of the return and of any resulting court orders.
(2)Whenever a defendant is returned to the court pursuant to paragraph (1) or (4) of subdivision (b) or paragraph (1) of this subdivision and it appears to the court that the defendant is gravely disabled, as defined in subparagraph (B) of paragraph (1) of subdivision (h) of Section 5008 of the Welfare and Institutions Code, the court shall order the conservatorship investigator of the county of commitment of the defendant to initiate conservatorship proceedings for the defendant pursuant to Chapter 3 (commencing with Section 5350) of Part 1 of Division 5 of the Welfare and Institutions Code. Hearings required in the conservatorship proceedings shall be held in the superior court in the county that ordered the commitment. The court shall transmit a copy of the order directing initiation of conservatorship proceedings to the community program director or a designee, the sheriff and the district attorney of the county in which criminal charges are pending, and the defendants counsel of record. The court shall notify the community program director or a designee, the sheriff and district attorney of the county in which criminal charges are pending, and the defendants counsel of record of the outcome of the conservatorship proceedings.
(3)If a change in placement is proposed for a defendant who is committed pursuant to subparagraph (B) of paragraph (1) of subdivision (h) of Section 5008 of the Welfare and Institutions Code, the court shall provide notice and an opportunity to be heard with respect to the proposed placement of the defendant to the sheriff and the district attorney of the county in which the criminal charges or revocation proceedings are pending.
(4)If the defendant is confined in a treatment facility, a copy of any report to the committing court regarding the defendants progress toward recovery of mental competence shall be provided by the committing court to the prosecutor and to the defense counsel.
(d)With the exception of proceedings alleging a violation of mandatory supervision, the criminal action remains subject to dismissal pursuant to Section 1385. If the criminal action is dismissed, the court shall transmit a copy of the order of dismissal to the community program director or a designee. In a proceeding alleging a violation of mandatory supervision, if the person is not placed under a conservatorship as described in paragraph (2) of subdivision (c), or if a conservatorship is terminated, the court shall reinstate mandatory supervision and may modify the terms and conditions of supervision to include appropriate mental health treatment or refer the matter to a local mental health court, reentry court, or other collaborative justice court available for improving the mental health of the defendant.
(e)If the criminal action against the defendant is dismissed, the defendant shall be released from commitment ordered under this section, but without prejudice to the initiation of any proceedings that may be appropriate under the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code).
(f)As used in this chapter, community program director means the person, agency, or entity designated by the State Department of State Hospitals pursuant to Section 1605 of this code and Section 4360 of the Welfare and Institutions Code.
(g)For the purpose of this section, secure treatment facility shall not include, except for state mental hospitals, state developmental centers, and correctional treatment facilities, any facility licensed pursuant to Chapter 2 (commencing with Section 1250) of, Chapter 3 (commencing with Section 1500) of, or Chapter 3.2 (commencing with Section 1569) of, Division 2 of the Health and Safety Code, or any community board and care facility.
(h)Nothing in this section shall preclude a defendant from filing a petition for habeas corpus to challenge the continuing validity of an order authorizing a treatment facility or outpatient program to involuntarily administer antipsychotic medication to a person being treated as incompetent to stand trial.
(a)(1)(A)If the defendant is found mentally competent, the criminal process shall resume, the trial on the offense charged or hearing on the alleged violation shall proceed, and judgment may be pronounced.
(B)If the defendant is found mentally incompetent, the trial, the hearing on the alleged violation, or the judgment shall be suspended until the person becomes mentally competent.
(i)In the meantime, the court shall order that the mentally incompetent defendant be delivered by the sheriff to a state hospital for the care and treatment of the mentally disordered, as directed by the State Department of State Hospitals, or to any other available public or private treatment facility, including a county jail treatment facility or the community-based residential treatment system established pursuant to Article 1 (commencing with Section 5670) of Chapter 2.5 of Part 2 of Division 5 of the Welfare and Institutions Code if the facility has a secured perimeter or a locked and controlled treatment facility, approved by the community program director that will promote the defendants speedy restoration to mental competence, or placed on outpatient status as specified in Section 1600.
(ii)However, if the action against the defendant who has been found mentally incompetent is on a complaint charging a felony offense specified in Section 290, the prosecutor shall determine whether the defendant previously has been found mentally incompetent to stand trial pursuant to this chapter on a charge of a Section 290 offense, or whether the defendant is currently the subject of a pending Section 1368 proceeding arising out of a charge of a Section 290 offense. If either determination is made, the prosecutor shall so notify the court and defendant in writing. After this notification, and opportunity for hearing, the court shall order that the defendant be delivered by the sheriff to a state hospital, as directed by the State Department of State Hospitals, or other secure treatment facility for the care and treatment of the mentally disordered unless the court makes specific findings on the record that an alternative placement would provide more appropriate treatment for the defendant and would not pose a danger to the health and safety of others.
(iii)If the action against the defendant who has been found mentally incompetent is on a complaint charging a felony offense specified in Section 290 and the defendant has been denied bail pursuant to subdivision (b) of Section 12 of Article I of the California Constitution because the court has found, based upon clear and convincing evidence, a substantial likelihood that the persons release would result in great bodily harm to others, the court shall order that the defendant be delivered by the sheriff to a state hospital for the care and treatment of the mentally disordered, as directed by the State Department of State Hospitals, unless the court makes specific findings on the record that an alternative placement would provide more appropriate treatment for the defendant and would not pose a danger to the health and safety of others.
(iv)The clerk of the court shall notify the Department of Justice in writing of any a finding of mental incompetence with respect to a defendant who is subject to clause (ii) or (iii) for inclusion in his or her state summary criminal history information.
(C)Upon the filing of a certificate of restoration to competence, the court shall order that the defendant be returned to court in accordance with Section 1372. The court shall transmit a copy of its order to the community program director or a designee.
(D)A defendant charged with a violent felony may not be delivered to a state hospital or treatment facility pursuant to this subdivision unless the state hospital or treatment facility has a secured perimeter or a locked and controlled treatment facility, and the judge determines that the public safety will be protected.
(E)For purposes of this paragraph, violent felony means an offense specified in subdivision (c) of Section 667.5.
(F)A defendant charged with a violent felony may be placed on outpatient status, as specified in Section 1600, only if the court finds that the placement will not pose a danger to the health or safety of others. If the court places a defendant charged with a violent felony on outpatient status, as specified in Section 1600, the court shall serve copies of the placement order on defense counsel, the sheriff in the county where the defendant will be placed, and the district attorney for the county in which the violent felony charges are pending against the defendant.
(2)Prior to making the order directing that the defendant be committed to the State Department of State Hospitals or other treatment facility or placed on outpatient status, the court shall proceed as follows:
(A)The court shall order the community program director or a designee to evaluate the defendant and to submit to the court within 15 judicial days of the order a written recommendation as to whether the defendant should be required to undergo outpatient treatment, or be committed to the State Department of State Hospitals or to any other treatment facility. A person shall not be admitted to a state hospital or other treatment facility or placed on outpatient status under this section without having been evaluated by the community program director or a designee. The community program director or designee shall evaluate the appropriate placement for the defendant between the State Department of State Hospitals, a county jail treatment facility, or the community-based residential treatment system based upon guidelines provided by the State Department of State Hospitals.
(B)The court shall hear and determine whether the defendant lacks capacity to make decisions regarding the administration of antipsychotic medication. The court shall consider opinions in the reports prepared pursuant to subdivision (a) of Section 1369, as applicable to the issue of whether the defendant lacks capacity to make decisions regarding the administration of antipsychotic medication, and shall proceed as follows:
(i)The court shall hear and determine whether any of the following is true:
(I)The defendant lacks capacity to make decisions regarding antipsychotic medication, the defendants mental disorder requires medical treatment with antipsychotic medication, and, if the defendants mental disorder is not treated with antipsychotic medication, it is probable that serious harm to the physical or mental health of the patient will result. Probability of serious harm to the physical or mental health of the defendant requires evidence that the defendant is presently suffering adverse effects to his or her physical or mental health, or the defendant has previously suffered these effects as a result of a mental disorder and his or her condition is substantially deteriorating. The fact that a defendant has a diagnosis of a mental disorder does not alone establish probability of serious harm to the physical or mental health of the defendant.
(II)The defendant is a danger to others, in that the defendant has inflicted, attempted to inflict, or made a serious threat of inflicting substantial physical harm on another while in custody, or the defendant had inflicted, attempted to inflict, or made a serious threat of inflicting substantial physical harm on another that resulted in his or her being taken into custody, and the defendant presents, as a result of mental disorder or mental defect, a demonstrated danger of inflicting substantial physical harm on others. Demonstrated danger may be based on an assessment of the defendants present mental condition, including a consideration of past behavior of the defendant within six years prior to the time the defendant last attempted to inflict, inflicted, or threatened to inflict substantial physical harm on another, and other relevant evidence.
(III)The people have charged the defendant with a serious crime against the person or property, involuntary administration of antipsychotic medication is substantially likely to render the defendant competent to stand trial, the medication is unlikely to have side effects that interfere with the defendants ability to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a reasonable manner, less intrusive treatments are unlikely to have substantially the same results, and antipsychotic medication is in the patients best medical interest in light of his or her medical condition.
(ii)If the court finds any of the conditions described in clause (i) to be true, the court shall issue an order authorizing involuntary administration of antipsychotic medication to the defendant when and as prescribed by the defendants treating psychiatrist at any facility housing the defendant for purposes of this chapter. The order shall be valid for no more than one year, pursuant to subparagraph (A) of paragraph (7). The court shall not order involuntary administration of psychotropic medication under subclause (III) of clause (i) unless the court has first found that the defendant does not meet the criteria for involuntary administration of psychotropic medication under subclause (I) of clause (i) and does not meet the criteria under subclause (II) of clause (i).
(iii)In all cases, the treating hospital, facility, or program may administer medically appropriate antipsychotic medication prescribed by a psychiatrist in an emergency as described in subdivision (m) of Section 5008 of the Welfare and Institutions Code.
(iv)If the court has determined that the defendant has the capacity to make decisions regarding antipsychotic medication, and if the defendant, with advice of his or her counsel, consents, the court order of commitment shall include confirmation that antipsychotic medication may be given to the defendant as prescribed by a treating psychiatrist pursuant to the defendants consent. The commitment order shall also indicate that, if the defendant withdraws consent for antipsychotic medication, after the treating psychiatrist complies with the provisions of subparagraph (C), the defendant shall be returned to court for a hearing in accordance with subparagraphs (C) and (D) regarding whether antipsychotic medication shall be administered involuntarily.
(v)If the court has determined that the defendant has the capacity to make decisions regarding antipsychotic medication and if the defendant, with advice from his or her counsel, does not consent, the court order for commitment shall indicate that, after the treating psychiatrist complies with the provisions of subparagraph (C), the defendant shall be returned to court for a hearing in accordance with subparagraphs (C) and (D) regarding whether antipsychotic medication shall be administered involuntarily.
(vi)Any A report made pursuant to paragraph (1) of subdivision (b) shall include a description of any antipsychotic medication administered to the defendant and its effects and side effects, including effects on the defendants appearance or behavior that would affect the defendants ability to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a reasonable manner. During the time the defendant is confined in a state hospital or other treatment facility or placed on outpatient status, either the defendant or the people may request that the court review any order made pursuant to this subdivision. The defendant, to the same extent enjoyed by other patients in the state hospital or other treatment facility, shall have the right to contact the patients rights advocate regarding his or her rights under this section.
(C)If the defendant consented to antipsychotic medication as described in clause (iv) of subparagraph (B), but subsequently withdraws his or her consent, or, if involuntary antipsychotic medication was not ordered pursuant to clause (v) of subparagraph (B), and the treating psychiatrist determines that antipsychotic medication has become medically necessary and appropriate, the treating psychiatrist shall make efforts to obtain informed consent from the defendant for antipsychotic medication. If informed consent is not obtained from the defendant, and the treating psychiatrist is of the opinion that the defendant lacks capacity to make decisions regarding antipsychotic medication based on the conditions described in subclause (I) or (II) of clause (i) of subparagraph (B), the treating psychiatrist shall certify whether the lack of capacity and any applicable conditions described above exist. That certification shall contain an assessment of the current mental status of the defendant and the opinion of the treating psychiatrist that involuntary antipsychotic medication has become medically necessary and appropriate.
(D)(i)If the treating psychiatrist certifies that antipsychotic medication has become medically necessary and appropriate pursuant to subparagraph (C), antipsychotic medication may be administered to the defendant for not more than 21 days, provided, however, that, within 72 hours of the certification, the defendant is provided a medication review hearing before an administrative law judge to be conducted at the facility where the defendant is receiving treatment. The treating psychiatrist shall present the case for the certification for involuntary treatment and the defendant shall be represented by an attorney or a patients rights advocate. The attorney or patients rights advocate shall be appointed to meet with the defendant no later than one day prior to the medication review hearing to review the defendants rights at the medication review hearing, discuss the process, answer questions or concerns regarding involuntary medication or the hearing, assist the defendant in preparing for the hearing and advocating for his or her interests at the hearing, review the panels final determination following the hearing, advise the defendant of his or her right to judicial review of the panels decision, and provide the defendant with referral information for legal advice on the subject. The defendant shall also have the following rights with respect to the medication review hearing:
(I)To be given timely access to the defendants records.
(II) To be present at the hearing, unless the defendant waives that right.
(III)To present evidence at the hearing.
(IV)To question persons presenting evidence supporting involuntary medication.
(V)To make reasonable requests for attendance of witnesses on the defendants behalf.
(VI)To a hearing conducted in an impartial and informal manner.
(ii)If the administrative law judge determines that the defendant either meets the criteria specified in subclause (I) of clause (i) of subparagraph (B), or meets the criteria specified in subclause (II) of clause (i) of subparagraph (B), then antipsychotic medication may continue to be administered to the defendant for the 21-day certification period. Concurrently with the treating psychiatrists certification, the treating psychiatrist shall file a copy of the certification and a petition with the court for issuance of an order to administer antipsychotic medication beyond the 21-day certification period. For purposes of this subparagraph, the treating psychiatrist shall not be required to pay or deposit any fee for the filing of the petition or other document or paper related to the petition.
(iii)If the administrative law judge disagrees with the certification, medication may not be administered involuntarily until the court determines that antipsychotic medication should be administered pursuant to this section.
(iv)The court shall provide notice to the prosecuting attorney and to the attorney representing the defendant, and shall hold a hearing, no later than 18 days from the date of the certification, to determine whether antipsychotic medication should be ordered beyond the certification period.
(v)If, as a result of the hearing, the court determines that antipsychotic medication should be administered beyond the certification period, the court shall issue an order authorizing the administration of that medication.
(vi)The court shall render its decision on the petition and issue its order no later than three calendar days after the hearing and, in any event, no later than the expiration of the 21-day certification period.
(vii)If the administrative law judge upholds the certification pursuant to clause (ii), the court may, for a period not to exceed 14 days, extend the certification and continue the hearing pursuant to stipulation between the parties or upon a finding of good cause. In determining good cause, the court may review the petition filed with the court, the administrative law judges order, and any additional testimony needed by the court to determine if it is appropriate to continue medication beyond the 21-day certification and for a period of up to 14 days.
(viii)The district attorney, county counsel, or representative of any a facility where a defendant found incompetent to stand trial is committed may petition the court for an order to administer involuntary medication pursuant to the criteria set forth in subclauses (II) and (III) of clause (i) of subparagraph (B). The order is reviewable as provided in paragraph (7).
(3)When the court orders that the defendant be committed to the State Department of State Hospitals or other public or private treatment facility, the court shall provide copies of the following documents prior to the admission of the defendant to the State Department of State Hospitals or other treatment facility where the defendant is to be committed:
(A)The commitment order, including a specification of the charges.
(B)A computation or statement setting forth the maximum term of commitment in accordance with subdivision (c).
(C)A computation or statement setting forth the amount of credit for time served, if any, to be deducted from the maximum term of commitment.
(D)State summary criminal history information.
(E)Any arrest Arrest reports prepared by the police department or other law enforcement agency.
(F)Any court-ordered Court-ordered psychiatric examination or evaluation reports.
(G)The community program directors placement recommendation report.
(H)Records of any a finding of mental incompetence pursuant to this chapter arising out of a complaint charging a felony offense specified in Section 290 or any a pending Section 1368 proceeding arising out of a charge of a Section 290 offense.
(I)Any medical Medical records.
(4)When the defendant is committed to a treatment facility pursuant to clause (i) of subparagraph (B) of paragraph (1) or the court makes the findings specified in clause (ii) or (iii) of subparagraph (B) of paragraph (1) to assign the defendant to a treatment facility other than a state hospital or other secure treatment facility, the court shall order that notice be given to the appropriate law enforcement agency or agencies having local jurisdiction at the site of the placement facility of any finding of mental incompetence pursuant to this chapter arising out of a charge of a Section 290 offense.
(5)When directing that the defendant be confined in a state hospital pursuant to this subdivision, the court shall commit the patient to the State Department of State Hospitals.
(6)(A)If the defendant is committed or transferred to the State Department of State Hospitals pursuant to this section, the court may, upon receiving the written recommendation of the medical director of the state hospital and the community program director that the defendant be transferred to a public or private treatment facility approved by the community program director, order the defendant transferred to that facility. If the defendant is committed or transferred to a public or private treatment facility approved by the community program director, the court may, upon receiving the written recommendation of the community program director, transfer the defendant to the State Department of State Hospitals or to another public or private treatment facility approved by the community program director. In the event of dismissal of the criminal charges before the defendant recovers competence, the person shall be subject to the applicable provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code). If either the defendant or the prosecutor chooses to contest either kind of order of transfer, a petition may be filed in the court for a hearing, which shall be held if the court determines that sufficient grounds exist. At the hearing, the prosecuting attorney or the defendant may present evidence bearing on the order of transfer. The court shall use the same standards as are used in conducting probation revocation hearings pursuant to Section 1203.2.
Prior to making an order for transfer under this section, the court shall notify the defendant, the attorney of record for the defendant, the prosecuting attorney, and the community program director or a designee.
(B)If the defendant is initially committed to the State Department of State Hospitals or secure treatment facility pursuant to clause (ii) or (iii) of subparagraph (B) of paragraph (1) and is subsequently transferred to any other facility, copies of the documents specified in paragraph (3) shall be taken with the defendant to each subsequent facility to which the defendant is transferred. The transferring facility shall also notify the appropriate law enforcement agency or agencies having local jurisdiction at the site of the new facility that the defendant is a person subject to clause (ii) or (iii) of subparagraph (B) of paragraph (1).
(7)(A)An order by the court authorizing involuntary medication of the defendant shall be valid for no more than one year. The court shall review the order at the time of the review of the initial report and the six-month progress reports pursuant to paragraph (1) of subdivision (b) to determine if the grounds for the authorization remain. In the review, the court shall consider the reports of the treating psychiatrist or psychiatrists and the defendants patients rights advocate or attorney. The court may require testimony from the treating psychiatrist or psychiatrists and the patients rights advocate or attorney, if necessary. The court may continue the order authorizing involuntary medication for up to another six months, or vacate the order, or make any other appropriate order.
(B)Within 60 days before the expiration of the one-year involuntary medication order, the district attorney, county counsel, or representative of any facility where a defendant found incompetent to stand trial is committed may petition the committing court for a renewal, subject to the same conditions and requirements as in subparagraph (A). The petition shall include the basis for involuntary medication set forth in clause (i) of subparagraph (B) of paragraph (2). Notice of the petition shall be provided to the defendant, the defendants attorney, and the district attorney. The court shall hear and determine whether the defendant continues to meet the criteria set forth in clause (i) of subparagraph (B) of paragraph (2). The hearing on any petition to renew an order for involuntary medication shall be conducted prior to the expiration of the current order.
(8)For purposes of subparagraph (D) of paragraph (2) and paragraph (7), if the treating psychiatrist determines that there is a need, based on preserving his or her rapport with the patient or preventing harm, the treating psychiatrist may request that the facility medical director designate another psychiatrist to act in the place of the treating psychiatrist. If the medical director of the facility designates another psychiatrist to act pursuant to this paragraph, the treating psychiatrist shall brief the acting psychiatrist of the relevant facts of the case and the acting psychiatrist shall examine the patient prior to the hearing.
(b)(1)Within 90 days of a commitment made pursuant to subdivision (a), the medical director of the state hospital or other treatment facility to which the defendant is confined shall make a written report to the court and the community program director for the county or region of commitment, or a designee, concerning the defendants progress toward recovery of mental competence and whether the administration of antipsychotic medication remains necessary. If the defendant is on outpatient status, the outpatient treatment staff shall make a written report to the community program director concerning the defendants progress toward recovery of mental competence. Within 90 days of placement on outpatient status, the community program director shall report to the court on this matter. If the defendant has not recovered mental competence, but the report discloses a substantial likelihood that the defendant will regain mental competence in the foreseeable future, the defendant shall remain in the state hospital or other treatment facility or on outpatient status. Thereafter, at six-month intervals or until the defendant becomes mentally competent, if the defendant is confined in a treatment facility, the medical director of the hospital or person in charge of the facility shall report in writing to the court and the community program director or a designee regarding the defendants progress toward recovery of mental competence and whether the administration of antipsychotic medication remains necessary. If the defendant is on outpatient status, after the initial 90-day report, the outpatient treatment staff shall report to the community program director on the defendants progress toward recovery, and the community program director shall report to the court on this matter at six-month intervals. A copy of these reports shall be provided to the prosecutor and defense counsel by the court.
(A)If the report indicates that there is no substantial likelihood that the defendant will regain mental competence in the foreseeable future, the committing court shall order the defendant to be returned to the court for proceedings pursuant to paragraph (2) of subdivision (c) no later than 10 days following receipt of the report. The court shall transmit a copy of its order to the community program director or a designee.
(B)If the report indicates that there is no substantial likelihood that the defendant will regain mental competence in the foreseeable future, the medical director of the state hospital or other treatment facility to which the defendant is confined shall do both of the following:
(i)Promptly notify and provide a copy of the report to the defense counsel and the district attorney.
(ii)Provide a separate notification, in compliance with applicable privacy laws, to the committing countys sheriff that transportation will be needed for the patient.
(2)If the court has issued an order authorizing the treating facility to involuntarily administer antipsychotic medication to the defendant, the reports made pursuant to paragraph (1) concerning the defendants progress toward regaining competency shall also consider the issue of involuntary medication. Each report shall include, but is not limited to, all of the following:
(A)Whether or not the defendant has the capacity to make decisions concerning antipsychotic medication.
(B)If the defendant lacks capacity to make decisions concerning antipsychotic medication, whether the defendant risks serious harm to his or her physical or mental health if not treated with antipsychotic medication.
(C)Whether or not the defendant presents a danger to others if he or she is not treated with antipsychotic medication.
(D)Whether the defendant has a mental illness for which medications are the only effective treatment.
(E)Whether there are any side effects from the medication currently being experienced by the defendant that would interfere with the defendants ability to collaborate with counsel.
(F)Whether there are any effective alternatives to medication.
(G)How quickly the medication is likely to bring the defendant to competency.
(H)Whether the treatment plan includes methods other than medication to restore the defendant to competency.
(I)A statement, if applicable, that no medication is likely to restore the defendant to competency.
(3)After reviewing the reports, the court shall determine whether or not grounds for the order authorizing involuntary administration of antipsychotic medication still exist and shall do one of the following:
(A)If the original grounds for involuntary medication still exist, the order authorizing the treating facility to involuntarily administer antipsychotic medication to the defendant shall remain in effect.
(B)If the original grounds for involuntary medication no longer exist, and there is no other basis for involuntary administration of antipsychotic medication, the order for the involuntary administration of antipsychotic medication shall be vacated.
(C)If the original grounds for involuntary medication no longer exist, and the report states that there is another basis for involuntary administration of antipsychotic medication, the court shall set a hearing within 21 days to determine whether the order for the involuntary administration of antipsychotic medication shall be vacated or whether a new order for the involuntary administration of antipsychotic medication shall be issued. The hearing shall proceed as set forth in subparagraph (B) of paragraph (2) of subdivision (a).
(4)Any defendant who has been committed or has been on outpatient status for 18 months and is still hospitalized or on outpatient status shall be returned to the committing court where a hearing shall be held pursuant to the procedures set forth in Section 1369. The court shall transmit a copy of its order to the community program director or a designee.
(5)If it is determined by the court that no treatment for the defendants mental impairment is being conducted, the defendant shall be returned to the committing court. The court shall transmit a copy of its order to the community program director or a designee.
(6)At each review by the court specified in this subdivision, the court shall determine if the security level of housing and treatment is appropriate and may make an order in accordance with its determination. If the court determines that the defendant shall continue to be treated in the state hospital or on an outpatient basis, the court shall determine issues concerning administration of antipsychotic medication, as set forth in subparagraph (B) of paragraph (2) of subdivision (a).
(c)(1)At the end of three years from the date of commitment or a period of commitment equal to the maximum term of imprisonment provided by law for the most serious offense charged in the information, indictment, or misdemeanor complaint, or the maximum term of imprisonment provided by law for a violation of probation or mandatory supervision, whichever is shorter, but no later than 90 days prior to the expiration of the defendants term of commitment, a defendant who has not recovered mental competence shall be returned to the committing court. The court shall notify the community program director or a designee of the return and of any resulting court orders.
(2)Whenever any a defendant is returned to the court pursuant to paragraph (1) or (4) of subdivision (b) or paragraph (1) of this subdivision and it appears to the court that the defendant is gravely disabled, as defined in subparagraph (B) of paragraph (1) of subdivision (h) of Section 5008 of the Welfare and Institutions Code, the court shall order the conservatorship investigator of the county of commitment of the defendant to initiate conservatorship proceedings for the defendant pursuant to Chapter 3 (commencing with Section 5350) of Part 1 of Division 5 of the Welfare and Institutions Code. Any hearings Hearings required in the conservatorship proceedings shall be held in the superior court in the county that ordered the commitment. The court shall transmit a copy of the order directing initiation of conservatorship proceedings to the community program director or a designee, the sheriff and the district attorney of the county in which criminal charges are pending, and the defendants counsel of record. The court shall notify the community program director or a designee, the sheriff and district attorney of the county in which criminal charges are pending, and the defendants counsel of record of the outcome of the conservatorship proceedings.
(3)If a change in placement is proposed for a defendant who is committed pursuant to subparagraph (B) of paragraph (1) of subdivision (h) of Section 5008 of the Welfare and Institutions Code, the court shall provide notice and an opportunity to be heard with respect to the proposed placement of the defendant to the sheriff and the district attorney of the county in which the criminal charges or revocation proceedings are pending.
(4)If the defendant is confined in a treatment facility, a copy of any report to the committing court regarding the defendants progress toward recovery of mental competence shall be provided by the committing court to the prosecutor and to the defense counsel.
(d)With the exception of proceedings alleging a violation of mandatory supervision, the criminal action remains subject to dismissal pursuant to Section 1385. If the criminal action is dismissed, the court shall transmit a copy of the order of dismissal to the community program director or a designee. In a proceeding alleging a violation of mandatory supervision, if the person is not placed under a conservatorship as described in paragraph (2) of subdivision (c), or if a conservatorship is terminated, the court shall reinstate mandatory supervision and may modify the terms and conditions of supervision to include appropriate mental health treatment or refer the matter to a local mental health court, reentry court, or other collaborative justice court available for improving the mental health of the defendant.
(e)If the criminal action against the defendant is dismissed, the defendant shall be released from any commitment ordered under this section, but without prejudice to the initiation of any proceedings that may be appropriate under the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code).
(f)As used in this chapter, community program director means the person, agency, or entity designated by the State Department of State Hospitals pursuant to Section 1605 of this code and Section 4360 of the Welfare and Institutions Code.
(g)For the purpose of this section, secure treatment facility shall not include, except for state mental hospitals, state developmental centers, and correctional treatment facilities, any facility licensed pursuant to Chapter 2 (commencing with Section 1250) of, Chapter 3 (commencing with Section 1500) of, or Chapter 3.2 (commencing with Section 1569) of, Division 2 of the Health and Safety Code, or any community board and care facility.
(h)Nothing in this section shall preclude a defendant from filing a petition for habeas corpus to challenge the continuing validity of an order authorizing a treatment facility or outpatient program to involuntarily administer antipsychotic medication to a person being treated as incompetent to stand trial.
SECTION 1.Section 1370 of the Penal Code is amended to read:1370.(a)(1)(A)If the defendant is found mentally competent, the criminal process shall resume, the trial on the offense charged or hearing on the alleged violation shall proceed, and judgment may be pronounced.
(B)If the defendant is found mentally incompetent, the trial, the hearing on the alleged violation, or the judgment shall be suspended until the person becomes mentally competent.
(i)In the meantime, the court shall order that the mentally incompetent defendant be delivered by the sheriff to a state hospital for the care and treatment of the mentally disordered, as directed by the State Department of State Hospitals, or to any other available public or private treatment facility, including a local county jail treatment facility or the community-based residential treatment system established pursuant to Article 1 (commencing with Section 5670) of Chapter 2.5 of Part 2 of Division 5 of the Welfare and Institutions Code if the facility has a secured perimeter or a locked and controlled treatment facility, approved by the community program director that will promote the defendants speedy restoration to mental competence, or placed on outpatient status as specified in Section 1600.
(ii)However, if the action against the defendant who has been found mentally incompetent is on a complaint charging a felony offense specified in Section 290, the prosecutor shall determine whether the defendant previously has been found mentally incompetent to stand trial pursuant to this chapter on a charge of a Section 290 offense, or whether the defendant is currently the subject of a pending Section 1368 proceeding arising out of a charge of a Section 290 offense. If either determination is made, the prosecutor shall so notify the court and defendant in writing. After this notification, and opportunity for hearing, the court shall order that the defendant be delivered by the sheriff to a state hospital, as directed by the State Department of State Hospitals, or other secure treatment facility for the care and treatment of the mentally disordered unless the court makes specific findings on the record that an alternative placement would provide more appropriate treatment for the defendant and would not pose a danger to the health and safety of others.
(iii)If the action against the defendant who has been found mentally incompetent is on a complaint charging a felony offense specified in Section 290 and the defendant has been denied bail pursuant to subdivision (b) of Section 12 of Article I of the California Constitution because the court has found, based upon clear and convincing evidence, a substantial likelihood that the persons release would result in great bodily harm to others, the court shall order that the defendant be delivered by the sheriff to a state hospital for the care and treatment of the mentally disordered, as directed by the State Department of State Hospitals, unless the court makes specific findings on the record that an alternative placement would provide more appropriate treatment for the defendant and would not pose a danger to the health and safety of others.
(iv)The clerk of the court shall notify the Department of Justice in writing of a finding of mental incompetence with respect to a defendant who is subject to clause (ii) or (iii) for inclusion in his or her state summary criminal history information.
(C)Upon the filing of a certificate of restoration to competence, the court shall order that the defendant be returned to court in accordance with Section 1372. The court shall transmit a copy of its order to the community program director or a designee.
(D)A defendant charged with a violent felony may not be delivered to a state hospital or treatment facility pursuant to this subdivision unless the state hospital or treatment facility has a secured perimeter or a locked and controlled treatment facility, and the judge determines that the public safety will be protected.
(E)For purposes of this paragraph, violent felony means an offense specified in subdivision (c) of Section 667.5.
(F)A defendant charged with a violent felony may be placed on outpatient status, as specified in Section 1600, only if the court finds that the placement will not pose a danger to the health or safety of others. If the court places a defendant charged with a violent felony on outpatient status, as specified in Section 1600, the court shall serve copies of the placement order on defense counsel, the sheriff in the county where the defendant will be placed, and the district attorney for the county in which the violent felony charges are pending against the defendant.
(2)Prior to making the order directing that the defendant be committed to the State Department of State Hospitals or other treatment facility or placed on outpatient status, the court shall proceed as follows:
(A)The court shall order the community program director or a designee to evaluate the defendant and to submit to the court within 15 judicial days of the order a written recommendation as to whether the defendant should be required to undergo outpatient treatment, or be committed to the State Department of State Hospitals or to any other treatment facility. A person shall not be admitted to a state hospital or other treatment facility or placed on outpatient status under this section without having been evaluated by the community program director or a designee. The community program director or designee shall evaluate the appropriate placement for the defendant between the State Department of State Hospitals, a local county jail treatment facility, or the community-based residential treatment system based upon guidelines provided by the State Department of State Hospitals. If a local county jail treatment facility is selected, the State Department of State Hospitals shall provide treatment at the county jail treatment facility and reimburse the county jail treatment facility for the reasonable costs of the bed during the treatment. If the community-based residential treatment system is selected, the State Department of State Hospitals shall provide reimbursement to the community-based residential treatment system for the cost of treatment as negotiated with the State Department of State Hospitals. The six-month limitation in Section 1369.1 shall not apply to individuals deemed incompetent to stand trial who are being treated to restore competency within a county jail treatment facility pursuant to this section.
(B)The court shall hear and determine whether the defendant lacks capacity to make decisions regarding the administration of antipsychotic medication. The court shall consider opinions in the reports prepared pursuant to subdivision (a) of Section 1369, as applicable to the issue of whether the defendant lacks capacity to make decisions regarding the administration of antipsychotic medication, and shall proceed as follows:
(i)The court shall hear and determine whether any of the following is true:
(I)The defendant lacks capacity to make decisions regarding antipsychotic medication, the defendants mental disorder requires medical treatment with antipsychotic medication, and, if the defendants mental disorder is not treated with antipsychotic medication, it is probable that serious harm to the physical or mental health of the patient will result. Probability of serious harm to the physical or mental health of the defendant requires evidence that the defendant is presently suffering adverse effects to his or her physical or mental health, or the defendant has previously suffered these effects as a result of a mental disorder and his or her condition is substantially deteriorating. The fact that a defendant has a diagnosis of a mental disorder does not alone establish probability of serious harm to the physical or mental health of the defendant.
(II)The defendant is a danger to others, in that the defendant has inflicted, attempted to inflict, or made a serious threat of inflicting substantial physical harm on another while in custody, or the defendant had inflicted, attempted to inflict, or made a serious threat of inflicting substantial physical harm on another that resulted in his or her being taken into custody, and the defendant presents, as a result of mental disorder or mental defect, a demonstrated danger of inflicting substantial physical harm on others. Demonstrated danger may be based on an assessment of the defendants present mental condition, including a consideration of past behavior of the defendant within six years prior to the time the defendant last attempted to inflict, inflicted, or threatened to inflict substantial physical harm on another, and other relevant evidence.
(III)The people have charged the defendant with a serious crime against the person or property, involuntary administration of antipsychotic medication is substantially likely to render the defendant competent to stand trial, the medication is unlikely to have side effects that interfere with the defendants ability to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a reasonable manner, less intrusive treatments are unlikely to have substantially the same results, and antipsychotic medication is in the patients best medical interest in light of his or her medical condition.
(ii)If the court finds any of the conditions described in clause (i) to be true, the court shall issue an order authorizing involuntary administration of antipsychotic medication to the defendant when and as prescribed by the defendants treating psychiatrist at any facility housing the defendant for purposes of this chapter. The order shall be valid for no more than one year, pursuant to subparagraph (A) of paragraph (7). The court shall not order involuntary administration of psychotropic medication under subclause (III) of clause (i) unless the court has first found that the defendant does not meet the criteria for involuntary administration of psychotropic medication under subclause (I) of clause (i) and does not meet the criteria under subclause (II) of clause (i).
(iii)In all cases, the treating hospital, facility, or program may administer medically appropriate antipsychotic medication prescribed by a psychiatrist in an emergency as described in subdivision (m) of Section 5008 of the Welfare and Institutions Code.
(iv)If the court has determined that the defendant has the capacity to make decisions regarding antipsychotic medication, and if the defendant, with advice of his or her counsel, consents, the court order of commitment shall include confirmation that antipsychotic medication may be given to the defendant as prescribed by a treating psychiatrist pursuant to the defendants consent. The commitment order shall also indicate that, if the defendant withdraws consent for antipsychotic medication, after the treating psychiatrist complies with the provisions of subparagraph (C), the defendant shall be returned to court for a hearing in accordance with subparagraphs (C) and (D) regarding whether antipsychotic medication shall be administered involuntarily.
(v)If the court has determined that the defendant has the capacity to make decisions regarding antipsychotic medication and if the defendant, with advice from his or her counsel, does not consent, the court order for commitment shall indicate that, after the treating psychiatrist complies with the provisions of subparagraph (C), the defendant shall be returned to court for a hearing in accordance with subparagraphs (C) and (D) regarding whether antipsychotic medication shall be administered involuntarily.
(vi)A report made pursuant to paragraph (1) of subdivision (b) shall include a description of antipsychotic medication administered to the defendant and its effects and side effects, including effects on the defendants appearance or behavior that would affect the defendants ability to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a reasonable manner. During the time the defendant is confined in a state hospital or other treatment facility or placed on outpatient status, either the defendant or the people may request that the court review any order made pursuant to this subdivision. The defendant, to the same extent enjoyed by other patients in the state hospital or other treatment facility, shall have the right to contact the patients rights advocate regarding his or her rights under this section.
(C)If the defendant consented to antipsychotic medication as described in clause (iv) of subparagraph (B), but subsequently withdraws his or her consent, or, if involuntary antipsychotic medication was not ordered pursuant to clause (v) of subparagraph (B), and the treating psychiatrist determines that antipsychotic medication has become medically necessary and appropriate, the treating psychiatrist shall make efforts to obtain informed consent from the defendant for antipsychotic medication. If informed consent is not obtained from the defendant, and the treating psychiatrist is of the opinion that the defendant lacks capacity to make decisions regarding antipsychotic medication based on the conditions described in subclause (I) or (II) of clause (i) of subparagraph (B), the treating psychiatrist shall certify whether the lack of capacity and any applicable conditions described above exist. That certification shall contain an assessment of the current mental status of the defendant and the opinion of the treating psychiatrist that involuntary antipsychotic medication has become medically necessary and appropriate.
(D)(i)If the treating psychiatrist certifies that antipsychotic medication has become medically necessary and appropriate pursuant to subparagraph (C), antipsychotic medication may be administered to the defendant for not more than 21 days, provided, however, that, within 72 hours of the certification, the defendant is provided a medication review hearing before an administrative law judge to be conducted at the facility where the defendant is receiving treatment. The treating psychiatrist shall present the case for the certification for involuntary treatment and the defendant shall be represented by an attorney or a patients rights advocate. The attorney or patients rights advocate shall be appointed to meet with the defendant no later than one day prior to the medication review hearing to review the defendants rights at the medication review hearing, discuss the process, answer questions or concerns regarding involuntary medication or the hearing, assist the defendant in preparing for the hearing and advocating for his or her interests at the hearing, review the panels final determination following the hearing, advise the defendant of his or her right to judicial review of the panels decision, and provide the defendant with referral information for legal advice on the subject. The defendant shall also have the following rights with respect to the medication review hearing:
(I)To be given timely access to the defendants records.
(II) To be present at the hearing, unless the defendant waives that right.
(III)To present evidence at the hearing.
(IV)To question persons presenting evidence supporting involuntary medication.
(V)To make reasonable requests for attendance of witnesses on the defendants behalf.
(VI)To a hearing conducted in an impartial and informal manner.
(ii)If the administrative law judge determines that the defendant either meets the criteria specified in subclause (I) of clause (i) of subparagraph (B), or meets the criteria specified in subclause (II) of clause (i) of subparagraph (B), then antipsychotic medication may continue to be administered to the defendant for the 21-day certification period. Concurrently with the treating psychiatrists certification, the treating psychiatrist shall file a copy of the certification and a petition with the court for issuance of an order to administer antipsychotic medication beyond the 21-day certification period. For purposes of this subparagraph, the treating psychiatrist shall not be required to pay or deposit any fee for the filing of the petition or other document or paper related to the petition.
(iii)If the administrative law judge disagrees with the certification, medication may not be administered involuntarily until the court determines that antipsychotic medication should be administered pursuant to this section.
(iv)The court shall provide notice to the prosecuting attorney and to the attorney representing the defendant, and shall hold a hearing, no later than 18 days from the date of the certification, to determine whether antipsychotic medication should be ordered beyond the certification period.
(v)If, as a result of the hearing, the court determines that antipsychotic medication should be administered beyond the certification period, the court shall issue an order authorizing the administration of that medication.
(vi)The court shall render its decision on the petition and issue its order no later than three calendar days after the hearing and, in any event, no later than the expiration of the 21-day certification period.
(vii)If the administrative law judge upholds the certification pursuant to clause (ii), the court may, for a period not to exceed 14 days, extend the certification and continue the hearing pursuant to stipulation between the parties or upon a finding of good cause. In determining good cause, the court may review the petition filed with the court, the administrative law judges order, and any additional testimony needed by the court to determine if it is appropriate to continue medication beyond the 21-day certification and for a period of up to 14 days.
(viii)The district attorney, county counsel, or representative of a facility where a defendant found incompetent to stand trial is committed may petition the court for an order to administer involuntary medication pursuant to the criteria set forth in subclauses (II) and (III) of clause (i) of subparagraph (B). The order is reviewable as provided in paragraph (7).
(3)When the court orders that the defendant be committed to the State Department of State Hospitals or other public or private treatment facility, the court shall provide copies of the following documents prior to the admission of the defendant to the State Department of State Hospitals or other treatment facility where the defendant is to be committed:
(A)The commitment order, including a specification of the charges.
(B)A computation or statement setting forth the maximum term of commitment in accordance with subdivision (c).
(C)A computation or statement setting forth the amount of credit for time served, if any, to be deducted from the maximum term of commitment.
(D)State summary criminal history information.
(E)Arrest reports prepared by the police department or other law enforcement agency.
(F)Court-ordered psychiatric examination or evaluation reports.
(G)The community program directors placement recommendation report.
(H)Records of a finding of mental incompetence pursuant to this chapter arising out of a complaint charging a felony offense specified in Section 290 or a pending Section 1368 proceeding arising out of a charge of a Section 290 offense.
(I)Medical records.
(4)When the defendant is committed to a treatment facility pursuant to clause (i) of subparagraph (B) of paragraph (1) or the court makes the findings specified in clause (ii) or (iii) of subparagraph (B) of paragraph (1) to assign the defendant to a treatment facility other than a state hospital or other secure treatment facility, the court shall order that notice be given to the appropriate law enforcement agency or agencies having local jurisdiction at the site of the placement facility of any finding of mental incompetence pursuant to this chapter arising out of a charge of a Section 290 offense.
(5)When directing that the defendant be confined in a state hospital pursuant to this subdivision, the court shall commit the patient to the State Department of State Hospitals.
(6)(A)If the defendant is committed or transferred to the State Department of State Hospitals pursuant to this section, the court may, upon receiving the written recommendation of the medical director of the state hospital and the community program director that the defendant be transferred to a public or private treatment facility approved by the community program director, order the defendant transferred to that facility. If the defendant is committed or transferred to a public or private treatment facility approved by the community program director, the court may, upon receiving the written recommendation of the community program director, transfer the defendant to the State Department of State Hospitals or to another public or private treatment facility approved by the community program director. In the event of dismissal of the criminal charges before the defendant recovers competence, the person shall be subject to the applicable provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code). If either the defendant or the prosecutor chooses to contest either kind of order of transfer, a petition may be filed in the court for a hearing, which shall be held if the court determines that sufficient grounds exist. At the hearing, the prosecuting attorney or the defendant may present evidence bearing on the order of transfer. The court shall use the same standards as are used in conducting probation revocation hearings pursuant to Section 1203.2.
Prior to making an order for transfer under this section, the court shall notify the defendant, the attorney of record for the defendant, the prosecuting attorney, and the community program director or a designee.
(B)If the defendant is initially committed to the State Department of State Hospitals or secure treatment facility pursuant to clause (ii) or (iii) of subparagraph (B) of paragraph (1) and is subsequently transferred to any other facility, copies of the documents specified in paragraph (3) shall be taken with the defendant to each subsequent facility to which the defendant is transferred. The transferring facility shall also notify the appropriate law enforcement agency or agencies having local jurisdiction at the site of the new facility that the defendant is a person subject to clause (ii) or (iii) of subparagraph (B) of paragraph (1).
(7)(A)An order by the court authorizing involuntary medication of the defendant shall be valid for no more than one year. The court shall review the order at the time of the review of the initial report and the six-month progress reports pursuant to paragraph (1) of subdivision (b) to determine if the grounds for the authorization remain. In the review, the court shall consider the reports of the treating psychiatrist or psychiatrists and the defendants patients rights advocate or attorney. The court may require testimony from the treating psychiatrist and the patients rights advocate or attorney, if necessary. The court may continue the order authorizing involuntary medication for up to another six months, or vacate the order, or make any other appropriate order.
(B)Within 60 days before the expiration of the one-year involuntary medication order, the district attorney, county counsel, or representative of any facility where a defendant found incompetent to stand trial is committed may petition the committing court for a renewal, subject to the same conditions and requirements as in subparagraph (A). The petition shall include the basis for involuntary medication set forth in clause (i) of subparagraph (B) of paragraph (2). Notice of the petition shall be provided to the defendant, the defendants attorney, and the district attorney. The court shall hear and determine whether the defendant continues to meet the criteria set forth in clause (i) of subparagraph (B) of paragraph (2). The hearing on any petition to renew an order for involuntary medication shall be conducted prior to the expiration of the current order.
(8)For purposes of subparagraph (D) of paragraph (2) and paragraph (7), if the treating psychiatrist determines that there is a need, based on preserving his or her rapport with the patient or preventing harm, the treating psychiatrist may request that the facility medical director designate another psychiatrist to act in the place of the treating psychiatrist. If the medical director of the facility designates another psychiatrist to act pursuant to this paragraph, the treating psychiatrist shall brief the acting psychiatrist of the relevant facts of the case and the acting psychiatrist shall examine the patient prior to the hearing.
(b)(1)Within 90 days of a commitment made pursuant to subdivision (a), the medical director of the state hospital or other treatment facility to which the defendant is confined shall make a written report to the court and the community program director for the county or region of commitment, or a designee, concerning the defendants progress toward recovery of mental competence and whether the administration of antipsychotic medication remains necessary. If the defendant is on outpatient status, the outpatient treatment staff shall make a written report to the community program director concerning the defendants progress toward recovery of mental competence. Within 90 days of placement on outpatient status, the community program director shall report to the court on this matter. If the defendant has not recovered mental competence, but the report discloses a substantial likelihood that the defendant will regain mental competence in the foreseeable future, the defendant shall remain in the state hospital or other treatment facility or on outpatient status. Thereafter, at six-month intervals or until the defendant becomes mentally competent, if the defendant is confined in a treatment facility, the medical director of the hospital or person in charge of the facility shall report in writing to the court and the community program director or a designee regarding the defendants progress toward recovery of mental competence and whether the administration of antipsychotic medication remains necessary. If the defendant is on outpatient status, after the initial 90-day report, the outpatient treatment staff shall report to the community program director on the defendants progress toward recovery, and the community program director shall report to the court on this matter at six-month intervals. A copy of these reports shall be provided to the prosecutor and defense counsel by the court.
(A)If the report indicates that there is no substantial likelihood that the defendant will regain mental competence in the foreseeable future, the committing court shall order the defendant to be returned to the court for proceedings pursuant to paragraph (2) of subdivision (c) no later than 10 days following receipt of the report. The court shall transmit a copy of its order to the community program director or a designee.
(B)If the report indicates that there is no substantial likelihood that the defendant will regain mental competence in the foreseeable future, the medical director of the state hospital or other treatment facility to which the defendant is confined shall do both of the following:
(i)Promptly notify and provide a copy of the report to the defense counsel and the district attorney.
(ii)Provide a separate notification, in compliance with applicable privacy laws, to the committing countys sheriff that transportation will be needed for the patient.
(2)If the court has issued an order authorizing the treating facility to involuntarily administer antipsychotic medication to the defendant, the reports made pursuant to paragraph (1) concerning the defendants progress toward regaining competency shall also consider the issue of involuntary medication. Each report shall include, but is not limited to, all of the following:
(A)Whether or not the defendant has the capacity to make decisions concerning antipsychotic medication.
(B)If the defendant lacks capacity to make decisions concerning antipsychotic medication, whether the defendant risks serious harm to his or her physical or mental health if not treated with antipsychotic medication.
(C)Whether or not the defendant presents a danger to others if he or she is not treated with antipsychotic medication.
(D)Whether the defendant has a mental illness for which medications are the only effective treatment.
(E)Whether there are any side effects from the medication currently being experienced by the defendant that would interfere with the defendants ability to collaborate with counsel.
(F)Whether there are any effective alternatives to medication.
(G)How quickly the medication is likely to bring the defendant to competency.
(H)Whether the treatment plan includes methods other than medication to restore the defendant to competency.
(I)A statement, if applicable, that no medication is likely to restore the defendant to competency.
(3)After reviewing the reports, the court shall determine whether or not grounds for the order authorizing involuntary administration of antipsychotic medication still exist and shall do one of the following:
(A)If the original grounds for involuntary medication still exist, the order authorizing the treating facility to involuntarily administer antipsychotic medication to the defendant shall remain in effect.
(B)If the original grounds for involuntary medication no longer exist, and there is no other basis for involuntary administration of antipsychotic medication, the order for the involuntary administration of antipsychotic medication shall be vacated.
(C)If the original grounds for involuntary medication no longer exist, and the report states that there is another basis for involuntary administration of antipsychotic medication, the court shall set a hearing within 21 days to determine whether the order for the involuntary administration of antipsychotic medication shall be vacated or whether a new order for the involuntary administration of antipsychotic medication shall be issued. The hearing shall proceed as set forth in subparagraph (B) of paragraph (2) of subdivision (a).
(4)A defendant who has been committed or has been on outpatient status for 18 months and is still hospitalized or on outpatient status shall be returned to the committing court where a hearing shall be held pursuant to the procedures set forth in Section 1369. The court shall transmit a copy of its order to the community program director or a designee.
(5)If it is determined by the court that no treatment for the defendants mental impairment is being conducted, the defendant shall be returned to the committing court. The court shall transmit a copy of its order to the community program director or a designee.
(6)At each review by the court specified in this subdivision, the court shall determine if the security level of housing and treatment is appropriate and may make an order in accordance with its determination. If the court determines that the defendant shall continue to be treated in the state hospital or on an outpatient basis, the court shall determine issues concerning administration of antipsychotic medication, as set forth in subparagraph (B) of paragraph (2) of subdivision (a).
(c)(1)At the end of three years from the date of commitment or a period of commitment equal to the maximum term of imprisonment provided by law for the most serious offense charged in the information, indictment, or misdemeanor complaint, or the maximum term of imprisonment provided by law for a violation of probation or mandatory supervision, whichever is shorter, but no later than 90 days prior to the expiration of the defendants term of commitment, a defendant who has not recovered mental competence shall be returned to the committing court. The court shall notify the community program director or a designee of the return and of any resulting court orders.
(2)Whenever a defendant is returned to the court pursuant to paragraph (1) or (4) of subdivision (b) or paragraph (1) of this subdivision and it appears to the court that the defendant is gravely disabled, as defined in subparagraph (B) of paragraph (1) of subdivision (h) of Section 5008 of the Welfare and Institutions Code, the court shall order the conservatorship investigator of the county of commitment of the defendant to initiate conservatorship proceedings for the defendant pursuant to Chapter 3 (commencing with Section 5350) of Part 1 of Division 5 of the Welfare and Institutions Code. Hearings required in the conservatorship proceedings shall be held in the superior court in the county that ordered the commitment. The court shall transmit a copy of the order directing initiation of conservatorship proceedings to the community program director or a designee, the sheriff and the district attorney of the county in which criminal charges are pending, and the defendants counsel of record. The court shall notify the community program director or a designee, the sheriff and district attorney of the county in which criminal charges are pending, and the defendants counsel of record of the outcome of the conservatorship proceedings.
(3)If a change in placement is proposed for a defendant who is committed pursuant to subparagraph (B) of paragraph (1) of subdivision (h) of Section 5008 of the Welfare and Institutions Code, the court shall provide notice and an opportunity to be heard with respect to the proposed placement of the defendant to the sheriff and the district attorney of the county in which the criminal charges or revocation proceedings are pending.
(4)If the defendant is confined in a treatment facility, a copy of any report to the committing court regarding the defendants progress toward recovery of mental competence shall be provided by the committing court to the prosecutor and to the defense counsel.
(d)With the exception of proceedings alleging a violation of mandatory supervision, the criminal action remains subject to dismissal pursuant to Section 1385. If the criminal action is dismissed, the court shall transmit a copy of the order of dismissal to the community program director or a designee. In a proceeding alleging a violation of mandatory supervision, if the person is not placed under a conservatorship as described in paragraph (2) of subdivision (c), or if a conservatorship is terminated, the court shall reinstate mandatory supervision and may modify the terms and conditions of supervision to include appropriate mental health treatment or refer the matter to a local mental health court, reentry court, or other collaborative justice court available for improving the mental health of the defendant.
(e)If the criminal action against the defendant is dismissed, the defendant shall be released from commitment ordered under this section, but without prejudice to the initiation of any proceedings that may be appropriate under the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code).
(f)As used in this chapter, community program director means the person, agency, or entity designated by the State Department of State Hospitals pursuant to Section 1605 of this code and Section 4360 of the Welfare and Institutions Code.
(g)For the purpose of this section, secure treatment facility shall not include, except for state mental hospitals, state developmental centers, and correctional treatment facilities, any facility licensed pursuant to Chapter 2 (commencing with Section 1250) of, Chapter 3 (commencing with Section 1500) of, or Chapter 3.2 (commencing with Section 1569) of, Division 2 of the Health and Safety Code, or any community board and care facility.
(h)Nothing in this section shall preclude a defendant from filing a petition for habeas corpus to challenge the continuing validity of an order authorizing a treatment facility or outpatient program to involuntarily administer antipsychotic medication to a person being treated as incompetent to stand trial.
(a)(1)(A)If the defendant is found mentally competent, the criminal process shall resume, the trial on the offense charged or hearing on the alleged violation shall proceed, and judgment may be pronounced.
(B)If the defendant is found mentally incompetent, the trial, the hearing on the alleged violation, or the judgment shall be suspended until the person becomes mentally competent.
(i)In the meantime, the court shall order that the mentally incompetent defendant be delivered by the sheriff to a state hospital for the care and treatment of the mentally disordered, as directed by the State Department of State Hospitals, or to any other available public or private treatment facility, including a local county jail treatment facility or the community-based residential treatment system established pursuant to Article 1 (commencing with Section 5670) of Chapter 2.5 of Part 2 of Division 5 of the Welfare and Institutions Code if the facility has a secured perimeter or a locked and controlled treatment facility, approved by the community program director that will promote the defendants speedy restoration to mental competence, or placed on outpatient status as specified in Section 1600.
(ii)However, if the action against the defendant who has been found mentally incompetent is on a complaint charging a felony offense specified in Section 290, the prosecutor shall determine whether the defendant previously has been found mentally incompetent to stand trial pursuant to this chapter on a charge of a Section 290 offense, or whether the defendant is currently the subject of a pending Section 1368 proceeding arising out of a charge of a Section 290 offense. If either determination is made, the prosecutor shall so notify the court and defendant in writing. After this notification, and opportunity for hearing, the court shall order that the defendant be delivered by the sheriff to a state hospital, as directed by the State Department of State Hospitals, or other secure treatment facility for the care and treatment of the mentally disordered unless the court makes specific findings on the record that an alternative placement would provide more appropriate treatment for the defendant and would not pose a danger to the health and safety of others.
(iii)If the action against the defendant who has been found mentally incompetent is on a complaint charging a felony offense specified in Section 290 and the defendant has been denied bail pursuant to subdivision (b) of Section 12 of Article I of the California Constitution because the court has found, based upon clear and convincing evidence, a substantial likelihood that the persons release would result in great bodily harm to others, the court shall order that the defendant be delivered by the sheriff to a state hospital for the care and treatment of the mentally disordered, as directed by the State Department of State Hospitals, unless the court makes specific findings on the record that an alternative placement would provide more appropriate treatment for the defendant and would not pose a danger to the health and safety of others.
(iv)The clerk of the court shall notify the Department of Justice in writing of a finding of mental incompetence with respect to a defendant who is subject to clause (ii) or (iii) for inclusion in his or her state summary criminal history information.
(C)Upon the filing of a certificate of restoration to competence, the court shall order that the defendant be returned to court in accordance with Section 1372. The court shall transmit a copy of its order to the community program director or a designee.
(D)A defendant charged with a violent felony may not be delivered to a state hospital or treatment facility pursuant to this subdivision unless the state hospital or treatment facility has a secured perimeter or a locked and controlled treatment facility, and the judge determines that the public safety will be protected.
(E)For purposes of this paragraph, violent felony means an offense specified in subdivision (c) of Section 667.5.
(F)A defendant charged with a violent felony may be placed on outpatient status, as specified in Section 1600, only if the court finds that the placement will not pose a danger to the health or safety of others. If the court places a defendant charged with a violent felony on outpatient status, as specified in Section 1600, the court shall serve copies of the placement order on defense counsel, the sheriff in the county where the defendant will be placed, and the district attorney for the county in which the violent felony charges are pending against the defendant.
(2)Prior to making the order directing that the defendant be committed to the State Department of State Hospitals or other treatment facility or placed on outpatient status, the court shall proceed as follows:
(A)The court shall order the community program director or a designee to evaluate the defendant and to submit to the court within 15 judicial days of the order a written recommendation as to whether the defendant should be required to undergo outpatient treatment, or be committed to the State Department of State Hospitals or to any other treatment facility. A person shall not be admitted to a state hospital or other treatment facility or placed on outpatient status under this section without having been evaluated by the community program director or a designee. The community program director or designee shall evaluate the appropriate placement for the defendant between the State Department of State Hospitals, a local county jail treatment facility, or the community-based residential treatment system based upon guidelines provided by the State Department of State Hospitals. If a local county jail treatment facility is selected, the State Department of State Hospitals shall provide treatment at the county jail treatment facility and reimburse the county jail treatment facility for the reasonable costs of the bed during the treatment. If the community-based residential treatment system is selected, the State Department of State Hospitals shall provide reimbursement to the community-based residential treatment system for the cost of treatment as negotiated with the State Department of State Hospitals. The six-month limitation in Section 1369.1 shall not apply to individuals deemed incompetent to stand trial who are being treated to restore competency within a county jail treatment facility pursuant to this section.
(B)The court shall hear and determine whether the defendant lacks capacity to make decisions regarding the administration of antipsychotic medication. The court shall consider opinions in the reports prepared pursuant to subdivision (a) of Section 1369, as applicable to the issue of whether the defendant lacks capacity to make decisions regarding the administration of antipsychotic medication, and shall proceed as follows:
(i)The court shall hear and determine whether any of the following is true:
(I)The defendant lacks capacity to make decisions regarding antipsychotic medication, the defendants mental disorder requires medical treatment with antipsychotic medication, and, if the defendants mental disorder is not treated with antipsychotic medication, it is probable that serious harm to the physical or mental health of the patient will result. Probability of serious harm to the physical or mental health of the defendant requires evidence that the defendant is presently suffering adverse effects to his or her physical or mental health, or the defendant has previously suffered these effects as a result of a mental disorder and his or her condition is substantially deteriorating. The fact that a defendant has a diagnosis of a mental disorder does not alone establish probability of serious harm to the physical or mental health of the defendant.
(II)The defendant is a danger to others, in that the defendant has inflicted, attempted to inflict, or made a serious threat of inflicting substantial physical harm on another while in custody, or the defendant had inflicted, attempted to inflict, or made a serious threat of inflicting substantial physical harm on another that resulted in his or her being taken into custody, and the defendant presents, as a result of mental disorder or mental defect, a demonstrated danger of inflicting substantial physical harm on others. Demonstrated danger may be based on an assessment of the defendants present mental condition, including a consideration of past behavior of the defendant within six years prior to the time the defendant last attempted to inflict, inflicted, or threatened to inflict substantial physical harm on another, and other relevant evidence.
(III)The people have charged the defendant with a serious crime against the person or property, involuntary administration of antipsychotic medication is substantially likely to render the defendant competent to stand trial, the medication is unlikely to have side effects that interfere with the defendants ability to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a reasonable manner, less intrusive treatments are unlikely to have substantially the same results, and antipsychotic medication is in the patients best medical interest in light of his or her medical condition.
(ii)If the court finds any of the conditions described in clause (i) to be true, the court shall issue an order authorizing involuntary administration of antipsychotic medication to the defendant when and as prescribed by the defendants treating psychiatrist at any facility housing the defendant for purposes of this chapter. The order shall be valid for no more than one year, pursuant to subparagraph (A) of paragraph (7). The court shall not order involuntary administration of psychotropic medication under subclause (III) of clause (i) unless the court has first found that the defendant does not meet the criteria for involuntary administration of psychotropic medication under subclause (I) of clause (i) and does not meet the criteria under subclause (II) of clause (i).
(iii)In all cases, the treating hospital, facility, or program may administer medically appropriate antipsychotic medication prescribed by a psychiatrist in an emergency as described in subdivision (m) of Section 5008 of the Welfare and Institutions Code.
(iv)If the court has determined that the defendant has the capacity to make decisions regarding antipsychotic medication, and if the defendant, with advice of his or her counsel, consents, the court order of commitment shall include confirmation that antipsychotic medication may be given to the defendant as prescribed by a treating psychiatrist pursuant to the defendants consent. The commitment order shall also indicate that, if the defendant withdraws consent for antipsychotic medication, after the treating psychiatrist complies with the provisions of subparagraph (C), the defendant shall be returned to court for a hearing in accordance with subparagraphs (C) and (D) regarding whether antipsychotic medication shall be administered involuntarily.
(v)If the court has determined that the defendant has the capacity to make decisions regarding antipsychotic medication and if the defendant, with advice from his or her counsel, does not consent, the court order for commitment shall indicate that, after the treating psychiatrist complies with the provisions of subparagraph (C), the defendant shall be returned to court for a hearing in accordance with subparagraphs (C) and (D) regarding whether antipsychotic medication shall be administered involuntarily.
(vi)A report made pursuant to paragraph (1) of subdivision (b) shall include a description of antipsychotic medication administered to the defendant and its effects and side effects, including effects on the defendants appearance or behavior that would affect the defendants ability to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a reasonable manner. During the time the defendant is confined in a state hospital or other treatment facility or placed on outpatient status, either the defendant or the people may request that the court review any order made pursuant to this subdivision. The defendant, to the same extent enjoyed by other patients in the state hospital or other treatment facility, shall have the right to contact the patients rights advocate regarding his or her rights under this section.
(C)If the defendant consented to antipsychotic medication as described in clause (iv) of subparagraph (B), but subsequently withdraws his or her consent, or, if involuntary antipsychotic medication was not ordered pursuant to clause (v) of subparagraph (B), and the treating psychiatrist determines that antipsychotic medication has become medically necessary and appropriate, the treating psychiatrist shall make efforts to obtain informed consent from the defendant for antipsychotic medication. If informed consent is not obtained from the defendant, and the treating psychiatrist is of the opinion that the defendant lacks capacity to make decisions regarding antipsychotic medication based on the conditions described in subclause (I) or (II) of clause (i) of subparagraph (B), the treating psychiatrist shall certify whether the lack of capacity and any applicable conditions described above exist. That certification shall contain an assessment of the current mental status of the defendant and the opinion of the treating psychiatrist that involuntary antipsychotic medication has become medically necessary and appropriate.
(D)(i)If the treating psychiatrist certifies that antipsychotic medication has become medically necessary and appropriate pursuant to subparagraph (C), antipsychotic medication may be administered to the defendant for not more than 21 days, provided, however, that, within 72 hours of the certification, the defendant is provided a medication review hearing before an administrative law judge to be conducted at the facility where the defendant is receiving treatment. The treating psychiatrist shall present the case for the certification for involuntary treatment and the defendant shall be represented by an attorney or a patients rights advocate. The attorney or patients rights advocate shall be appointed to meet with the defendant no later than one day prior to the medication review hearing to review the defendants rights at the medication review hearing, discuss the process, answer questions or concerns regarding involuntary medication or the hearing, assist the defendant in preparing for the hearing and advocating for his or her interests at the hearing, review the panels final determination following the hearing, advise the defendant of his or her right to judicial review of the panels decision, and provide the defendant with referral information for legal advice on the subject. The defendant shall also have the following rights with respect to the medication review hearing:
(I)To be given timely access to the defendants records.
(II) To be present at the hearing, unless the defendant waives that right.
(III)To present evidence at the hearing.
(IV)To question persons presenting evidence supporting involuntary medication.
(V)To make reasonable requests for attendance of witnesses on the defendants behalf.
(VI)To a hearing conducted in an impartial and informal manner.
(ii)If the administrative law judge determines that the defendant either meets the criteria specified in subclause (I) of clause (i) of subparagraph (B), or meets the criteria specified in subclause (II) of clause (i) of subparagraph (B), then antipsychotic medication may continue to be administered to the defendant for the 21-day certification period. Concurrently with the treating psychiatrists certification, the treating psychiatrist shall file a copy of the certification and a petition with the court for issuance of an order to administer antipsychotic medication beyond the 21-day certification period. For purposes of this subparagraph, the treating psychiatrist shall not be required to pay or deposit any fee for the filing of the petition or other document or paper related to the petition.
(iii)If the administrative law judge disagrees with the certification, medication may not be administered involuntarily until the court determines that antipsychotic medication should be administered pursuant to this section.
(iv)The court shall provide notice to the prosecuting attorney and to the attorney representing the defendant, and shall hold a hearing, no later than 18 days from the date of the certification, to determine whether antipsychotic medication should be ordered beyond the certification period.
(v)If, as a result of the hearing, the court determines that antipsychotic medication should be administered beyond the certification period, the court shall issue an order authorizing the administration of that medication.
(vi)The court shall render its decision on the petition and issue its order no later than three calendar days after the hearing and, in any event, no later than the expiration of the 21-day certification period.
(vii)If the administrative law judge upholds the certification pursuant to clause (ii), the court may, for a period not to exceed 14 days, extend the certification and continue the hearing pursuant to stipulation between the parties or upon a finding of good cause. In determining good cause, the court may review the petition filed with the court, the administrative law judges order, and any additional testimony needed by the court to determine if it is appropriate to continue medication beyond the 21-day certification and for a period of up to 14 days.
(viii)The district attorney, county counsel, or representative of a facility where a defendant found incompetent to stand trial is committed may petition the court for an order to administer involuntary medication pursuant to the criteria set forth in subclauses (II) and (III) of clause (i) of subparagraph (B). The order is reviewable as provided in paragraph (7).
(3)When the court orders that the defendant be committed to the State Department of State Hospitals or other public or private treatment facility, the court shall provide copies of the following documents prior to the admission of the defendant to the State Department of State Hospitals or other treatment facility where the defendant is to be committed:
(A)The commitment order, including a specification of the charges.
(B)A computation or statement setting forth the maximum term of commitment in accordance with subdivision (c).
(C)A computation or statement setting forth the amount of credit for time served, if any, to be deducted from the maximum term of commitment.
(D)State summary criminal history information.
(E)Arrest reports prepared by the police department or other law enforcement agency.
(F)Court-ordered psychiatric examination or evaluation reports.
(G)The community program directors placement recommendation report.
(H)Records of a finding of mental incompetence pursuant to this chapter arising out of a complaint charging a felony offense specified in Section 290 or a pending Section 1368 proceeding arising out of a charge of a Section 290 offense.
(I)Medical records.
(4)When the defendant is committed to a treatment facility pursuant to clause (i) of subparagraph (B) of paragraph (1) or the court makes the findings specified in clause (ii) or (iii) of subparagraph (B) of paragraph (1) to assign the defendant to a treatment facility other than a state hospital or other secure treatment facility, the court shall order that notice be given to the appropriate law enforcement agency or agencies having local jurisdiction at the site of the placement facility of any finding of mental incompetence pursuant to this chapter arising out of a charge of a Section 290 offense.
(5)When directing that the defendant be confined in a state hospital pursuant to this subdivision, the court shall commit the patient to the State Department of State Hospitals.
(6)(A)If the defendant is committed or transferred to the State Department of State Hospitals pursuant to this section, the court may, upon receiving the written recommendation of the medical director of the state hospital and the community program director that the defendant be transferred to a public or private treatment facility approved by the community program director, order the defendant transferred to that facility. If the defendant is committed or transferred to a public or private treatment facility approved by the community program director, the court may, upon receiving the written recommendation of the community program director, transfer the defendant to the State Department of State Hospitals or to another public or private treatment facility approved by the community program director. In the event of dismissal of the criminal charges before the defendant recovers competence, the person shall be subject to the applicable provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code). If either the defendant or the prosecutor chooses to contest either kind of order of transfer, a petition may be filed in the court for a hearing, which shall be held if the court determines that sufficient grounds exist. At the hearing, the prosecuting attorney or the defendant may present evidence bearing on the order of transfer. The court shall use the same standards as are used in conducting probation revocation hearings pursuant to Section 1203.2.
Prior to making an order for transfer under this section, the court shall notify the defendant, the attorney of record for the defendant, the prosecuting attorney, and the community program director or a designee.
(B)If the defendant is initially committed to the State Department of State Hospitals or secure treatment facility pursuant to clause (ii) or (iii) of subparagraph (B) of paragraph (1) and is subsequently transferred to any other facility, copies of the documents specified in paragraph (3) shall be taken with the defendant to each subsequent facility to which the defendant is transferred. The transferring facility shall also notify the appropriate law enforcement agency or agencies having local jurisdiction at the site of the new facility that the defendant is a person subject to clause (ii) or (iii) of subparagraph (B) of paragraph (1).
(7)(A)An order by the court authorizing involuntary medication of the defendant shall be valid for no more than one year. The court shall review the order at the time of the review of the initial report and the six-month progress reports pursuant to paragraph (1) of subdivision (b) to determine if the grounds for the authorization remain. In the review, the court shall consider the reports of the treating psychiatrist or psychiatrists and the defendants patients rights advocate or attorney. The court may require testimony from the treating psychiatrist and the patients rights advocate or attorney, if necessary. The court may continue the order authorizing involuntary medication for up to another six months, or vacate the order, or make any other appropriate order.
(B)Within 60 days before the expiration of the one-year involuntary medication order, the district attorney, county counsel, or representative of any facility where a defendant found incompetent to stand trial is committed may petition the committing court for a renewal, subject to the same conditions and requirements as in subparagraph (A). The petition shall include the basis for involuntary medication set forth in clause (i) of subparagraph (B) of paragraph (2). Notice of the petition shall be provided to the defendant, the defendants attorney, and the district attorney. The court shall hear and determine whether the defendant continues to meet the criteria set forth in clause (i) of subparagraph (B) of paragraph (2). The hearing on any petition to renew an order for involuntary medication shall be conducted prior to the expiration of the current order.
(8)For purposes of subparagraph (B) (D) of paragraph (2) and paragraphs (3) to paragraph (7), inclusive, if the treating psychiatrist determines that there is a need, based on preserving his or her rapport with the patient or to preventing harm, the treating psychiatrist may request that the facility medical director designate another psychiatrist to act in the place of the treating psychiatrist for purposes of this subdivision. psychiatrist. If the medical director of the facility designates another psychiatrist to act pursuant to this paragraph, the treating psychiatrist shall brief the acting psychiatrist of the relevant facts of the case and the acting psychiatrist shall examine the patient prior to the hearing.
(b)(1)Within 90 days of a commitment made pursuant to subdivision (a), the medical director of the state hospital or other treatment facility to which the defendant is confined shall make a written report to the court and the community program director for the county or region of commitment, or a designee, concerning the defendants progress toward recovery of mental competence and whether the administration of antipsychotic medication remains necessary. If the defendant is on outpatient status, the outpatient treatment staff shall make a written report to the community program director concerning the defendants progress toward recovery of mental competence. Within 90 days of placement on outpatient status, the community program director shall report to the court on this matter. If the defendant has not recovered mental competence, but the report discloses a substantial likelihood that the defendant will regain mental competence in the foreseeable future, the defendant shall remain in the state hospital or other treatment facility or on outpatient status. Thereafter, at six-month intervals or until the defendant becomes mentally competent, if the defendant is confined in a treatment facility, the medical director of the hospital or person in charge of the facility shall report in writing to the court and the community program director or a designee regarding the defendants progress toward recovery of mental competence and whether the administration of antipsychotic medication remains necessary. If the defendant is on outpatient status, after the initial 90-day report, the outpatient treatment staff shall report to the community program director on the defendants progress toward recovery, and the community program director shall report to the court on this matter at six-month intervals. A copy of these reports shall be provided to the prosecutor and defense counsel by the court.
(A)If the report indicates that there is no substantial likelihood that the defendant will regain mental competence in the foreseeable future, the committing court shall order the defendant to be returned to the court for proceedings pursuant to paragraph (2) of subdivision (c) no later than 10 days following receipt of the report. The court shall transmit a copy of its order to the community program director or a designee.
(B)If the report indicates that there is no substantial likelihood that the defendant will regain mental competence in the foreseeable future, the medical director of the state hospital or other treatment facility to which the defendant is confined shall do both of the following:
(i)Promptly notify and provide a copy of the report to the defense counsel and the district attorney.
(ii)Provide a separate notification, in compliance with applicable privacy laws, to the committing countys sheriff that transportation will be needed for the patient.
(2)If the court has issued an order authorizing the treating facility to involuntarily administer antipsychotic medication to the defendant, the reports made pursuant to paragraph (1) concerning the defendants progress toward regaining competency shall also consider the issue of involuntary medication. Each report shall include, but is not limited to, all of the following:
(A)Whether or not the defendant has the capacity to make decisions concerning antipsychotic medication.
(B)If the defendant lacks capacity to make decisions concerning antipsychotic medication, whether the defendant risks serious harm to his or her physical or mental health if not treated with antipsychotic medication.
(C)Whether or not the defendant presents a danger to others if he or she is not treated with antipsychotic medication.
(D)Whether the defendant has a mental illness for which medications are the only effective treatment.
(E)Whether there are any side effects from the medication currently being experienced by the defendant that would interfere with the defendants ability to collaborate with counsel.
(F)Whether there are any effective alternatives to medication.
(G)How quickly the medication is likely to bring the defendant to competency.
(H)Whether the treatment plan includes methods other than medication to restore the defendant to competency.
(I)A statement, if applicable, that no medication is likely to restore the defendant to competency.
(3)After reviewing the reports, the court shall determine whether or not grounds for the order authorizing involuntary administration of antipsychotic medication still exist and shall do one of the following:
(A)If the original grounds for involuntary medication still exist, the order authorizing the treating facility to involuntarily administer antipsychotic medication to the defendant shall remain in effect.
(B)If the original grounds for involuntary medication no longer exist, and there is no other basis for involuntary administration of antipsychotic medication, the order for the involuntary administration of antipsychotic medication shall be vacated.
(C)If the original grounds for involuntary medication no longer exist, and the report states that there is another basis for involuntary administration of antipsychotic medication, the court shall set a hearing within 21 days to determine whether the order for the involuntary administration of antipsychotic medication shall be vacated or whether a new order for the involuntary administration of antipsychotic medication shall be issued. The hearing shall proceed as set forth in subparagraph (B) of paragraph (2) of subdivision (a).
(4)A defendant who has been committed or has been on outpatient status for 18 months and is still hospitalized or on outpatient status shall be returned to the committing court where a hearing shall be held pursuant to the procedures set forth in Section 1369. The court shall transmit a copy of its order to the community program director or a designee.
(5)If it is determined by the court that no treatment for the defendants mental impairment is being conducted, the defendant shall be returned to the committing court. The court shall transmit a copy of its order to the community program director or a designee.
(6)At each review by the court specified in this subdivision, the court shall determine if the security level of housing and treatment is appropriate and may make an order in accordance with its determination. If the court determines that the defendant shall continue to be treated in the state hospital or on an outpatient basis, the court shall determine issues concerning administration of antipsychotic medication, as set forth in subparagraph (B) of paragraph (2) of subdivision (a).
(c)(1)At the end of three years from the date of commitment or a period of commitment equal to the maximum term of imprisonment provided by law for the most serious offense charged in the information, indictment, or misdemeanor complaint, or the maximum term of imprisonment provided by law for a violation of probation or mandatory supervision, whichever is shorter, but no later than 90 days prior to the expiration of the defendants term of commitment, a defendant who has not recovered mental competence shall be returned to the committing court. The court shall notify the community program director or a designee of the return and of any resulting court orders.
(2)Whenever a defendant is returned to the court pursuant to paragraph (1) or (4) of subdivision (b) or paragraph (1) of this subdivision and it appears to the court that the defendant is gravely disabled, as defined in subparagraph (B) of paragraph (1) of subdivision (h) of Section 5008 of the Welfare and Institutions Code, the court shall order the conservatorship investigator of the county of commitment of the defendant to initiate conservatorship proceedings for the defendant pursuant to Chapter 3 (commencing with Section 5350) of Part 1 of Division 5 of the Welfare and Institutions Code. Hearings required in the conservatorship proceedings shall be held in the superior court in the county that ordered the commitment. The court shall transmit a copy of the order directing initiation of conservatorship proceedings to the community program director or a designee, the sheriff and the district attorney of the county in which criminal charges are pending, and the defendants counsel of record. The court shall notify the community program director or a designee, the sheriff and district attorney of the county in which criminal charges are pending, and the defendants counsel of record of the outcome of the conservatorship proceedings.
(3)If a change in placement is proposed for a defendant who is committed pursuant to subparagraph (B) of paragraph (1) of subdivision (h) of Section 5008 of the Welfare and Institutions Code, the court shall provide notice and an opportunity to be heard with respect to the proposed placement of the defendant to the sheriff and the district attorney of the county in which the criminal charges or revocation proceedings are pending.
(4)If the defendant is confined in a treatment facility, a copy of any report to the committing court regarding the defendants progress toward recovery of mental competence shall be provided by the committing court to the prosecutor and to the defense counsel.
(d)With the exception of proceedings alleging a violation of mandatory supervision, the criminal action remains subject to dismissal pursuant to Section 1385. If the criminal action is dismissed, the court shall transmit a copy of the order of dismissal to the community program director or a designee. In a proceeding alleging a violation of mandatory supervision, if the person is not placed under a conservatorship as described in paragraph (2) of subdivision (c), or if a conservatorship is terminated, the court shall reinstate mandatory supervision and may modify the terms and conditions of supervision to include appropriate mental health treatment or refer the matter to a local mental health court, reentry court, or other collaborative justice court available for improving the mental health of the defendant.
(e)If the criminal action against the defendant is dismissed, the defendant shall be released from commitment ordered under this section, but without prejudice to the initiation of any proceedings that may be appropriate under the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code).
(f)As used in this chapter, community program director means the person, agency, or entity designated by the State Department of State Hospitals pursuant to Section 1605 of this code and Section 4360 of the Welfare and Institutions Code.
(g)For the purpose of this section, secure treatment facility shall not include, except for state mental hospitals, state developmental centers, and correctional treatment facilities, any facility licensed pursuant to Chapter 2 (commencing with Section 1250) of, Chapter 3 (commencing with Section 1500) of, or Chapter 3.2 (commencing with Section 1569) of, Division 2 of the Health and Safety Code, or any community board and care facility.
(h)Nothing in this section shall preclude a defendant from filing a petition for habeas corpus to challenge the continuing validity of an order authorizing a treatment facility or outpatient program to involuntarily administer antipsychotic medication to a person being treated as incompetent to stand trial.
(a)(1)(A)If the defendant is found mentally competent, the criminal process shall resume, the trial on the offense charged or hearing on the alleged violation shall proceed, and judgment may be pronounced.
(B)If the defendant is found mentally incompetent, the trial, the hearing on the alleged violation, or the judgment shall be suspended until the person becomes mentally competent.
(i)In the meantime, the court shall order that the mentally incompetent defendant be delivered by the sheriff to a state hospital for the care and treatment of the mentally disordered, as directed by the State Department of State Hospitals, or to any other available public or private treatment facility, including a local county jail treatment facility or the community-based residential treatment system established pursuant to Article 1 (commencing with Section 5670) of Chapter 2.5 of Part 2 of Division 5 of the Welfare and Institutions Code if the facility has a secured perimeter or a locked and controlled treatment facility, approved by the community program director that will promote the defendants speedy restoration to mental competence, or placed on outpatient status as specified in Section 1600.
(ii)However, if the action against the defendant who has been found mentally incompetent is on a complaint charging a felony offense specified in Section 290, the prosecutor shall determine whether the defendant previously has been found mentally incompetent to stand trial pursuant to this chapter on a charge of a Section 290 offense, or whether the defendant is currently the subject of a pending Section 1368 proceeding arising out of a charge of a Section 290 offense. If either determination is made, the prosecutor shall so notify the court and defendant in writing. After this notification, and opportunity for hearing, the court shall order that the defendant be delivered by the sheriff to a state hospital, as directed by the State Department of State Hospitals, or other secure treatment facility for the care and treatment of the mentally disordered unless the court makes specific findings on the record that an alternative placement would provide more appropriate treatment for the defendant and would not pose a danger to the health and safety of others.
(iii)If the action against the defendant who has been found mentally incompetent is on a complaint charging a felony offense specified in Section 290 and the defendant has been denied bail pursuant to subdivision (b) of Section 12 of Article I of the California Constitution because the court has found, based upon clear and convincing evidence, a substantial likelihood that the persons release would result in great bodily harm to others, the court shall order that the defendant be delivered by the sheriff to a state hospital for the care and treatment of the mentally disordered, as directed by the State Department of State Hospitals, unless the court makes specific findings on the record that an alternative placement would provide more appropriate treatment for the defendant and would not pose a danger to the health and safety of others.
(iv)The clerk of the court shall notify the Department of Justice in writing of a finding of mental incompetence with respect to a defendant who is subject to clause (ii) or (iii) for inclusion in his or her state summary criminal history information.
(C)Upon the filing of a certificate of restoration to competence, the court shall order that the defendant be returned to court in accordance with Section 1372. The court shall transmit a copy of its order to the community program director or a designee.
(D)A defendant charged with a violent felony may not be delivered to a state hospital or treatment facility pursuant to this subdivision unless the state hospital or treatment facility has a secured perimeter or a locked and controlled treatment facility, and the judge determines that the public safety will be protected.
(E)For purposes of this paragraph, violent felony means an offense specified in subdivision (c) of Section 667.5.
(F)A defendant charged with a violent felony may be placed on outpatient status, as specified in Section 1600, only if the court finds that the placement will not pose a danger to the health or safety of others. If the court places a defendant charged with a violent felony on outpatient status, as specified in Section 1600, the court shall serve copies of the placement order on defense counsel, the sheriff in the county where the defendant will be placed, and the district attorney for the county in which the violent felony charges are pending against the defendant.
(2)Prior to making the order directing that the defendant be committed to the State Department of State Hospitals or other treatment facility or placed on outpatient status, the court shall proceed as follows:
(A)The court shall order the community program director or a designee to evaluate the defendant and to submit to the court within 15 judicial days of the order a written recommendation as to whether the defendant should be required to undergo outpatient treatment, or be committed to the State Department of State Hospitals or to any other treatment facility. A person shall not be admitted to a state hospital or other treatment facility or placed on outpatient status under this section without having been evaluated by the community program director or a designee. The community program director or designee shall evaluate the appropriate placement for the defendant between the State Department of State Hospitals, a local county jail treatment facility, or the community-based residential treatment system based upon guidelines provided by the State Department of State Hospitals. If a local county jail treatment facility is selected, the State Department of State Hospitals shall provide treatment at the county jail treatment facility and reimburse the county jail treatment facility for the reasonable costs of the bed during the treatment. If the community-based residential treatment system is selected, the State Department of State Hospitals shall provide reimbursement to the community-based residential treatment system for the cost of treatment as negotiated with the State Department of State Hospitals. The six-month limitation in Section 1369.1 shall not apply to individuals deemed incompetent to stand trial who are being treated to restore competency within a county jail treatment facility pursuant to this section.
(B)The court shall hear and determine whether the defendant lacks capacity to make decisions regarding the administration of antipsychotic medication. The court shall consider opinions in the reports prepared pursuant to subdivision (a) of Section 1369, as applicable to the issue of whether the defendant lacks capacity to make decisions regarding the administration of antipsychotic medication, and shall proceed as follows:
(i)The court shall hear and determine whether any of the following is true:
(I)The defendant lacks capacity to make decisions regarding antipsychotic medication, the defendants mental disorder requires medical treatment with antipsychotic medication, and, if the defendants mental disorder is not treated with antipsychotic medication, it is probable that serious harm to the physical or mental health of the patient will result. Probability of serious harm to the physical or mental health of the defendant requires evidence that the defendant is presently suffering adverse effects to his or her physical or mental health, or the defendant has previously suffered these effects as a result of a mental disorder and his or her condition is substantially deteriorating. The fact that a defendant has a diagnosis of a mental disorder does not alone establish probability of serious harm to the physical or mental health of the defendant.
(II)The defendant is a danger to others, in that the defendant has inflicted, attempted to inflict, or made a serious threat of inflicting substantial physical harm on another while in custody, or the defendant had inflicted, attempted to inflict, or made a serious threat of inflicting substantial physical harm on another that resulted in his or her being taken into custody, and the defendant presents, as a result of mental disorder or mental defect, a demonstrated danger of inflicting substantial physical harm on others. Demonstrated danger may be based on an assessment of the defendants present mental condition, including a consideration of past behavior of the defendant within six years prior to the time the defendant last attempted to inflict, inflicted, or threatened to inflict substantial physical harm on another, and other relevant evidence.
(III)The people have charged the defendant with a serious crime against the person or property, involuntary administration of antipsychotic medication is substantially likely to render the defendant competent to stand trial, the medication is unlikely to have side effects that interfere with the defendants ability to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a reasonable manner, less intrusive treatments are unlikely to have substantially the same results, and antipsychotic medication is in the patients best medical interest in light of his or her medical condition.
(ii)If the court finds any of the conditions described in clause (i) to be true, the court shall issue an order authorizing involuntary administration of antipsychotic medication to the defendant when and as prescribed by the defendants treating psychiatrist at any facility housing the defendant for purposes of this chapter. The order shall be valid for no more than one year, pursuant to subparagraph (A) of paragraph (7). The court shall not order involuntary administration of psychotropic medication under subclause (III) of clause (i) unless the court has first found that the defendant does not meet the criteria for involuntary administration of psychotropic medication under subclause (I) of clause (i) and does not meet the criteria under subclause (II) of clause (i).
(iii)In all cases, the treating hospital, facility, or program may administer medically appropriate antipsychotic medication prescribed by a psychiatrist in an emergency as described in subdivision (m) of Section 5008 of the Welfare and Institutions Code.
(iv)If the court has determined that the defendant has the capacity to make decisions regarding antipsychotic medication, and if the defendant, with advice of his or her counsel, consents, the court order of commitment shall include confirmation that antipsychotic medication may be given to the defendant as prescribed by a treating psychiatrist pursuant to the defendants consent. The commitment order shall also indicate that, if the defendant withdraws consent for antipsychotic medication, after the treating psychiatrist complies with the provisions of subparagraph (C), the defendant shall be returned to court for a hearing in accordance with subparagraphs (C) and (D) regarding whether antipsychotic medication shall be administered involuntarily.
(v)If the court has determined that the defendant has the capacity to make decisions regarding antipsychotic medication and if the defendant, with advice from his or her counsel, does not consent, the court order for commitment shall indicate that, after the treating psychiatrist complies with the provisions of subparagraph (C), the defendant shall be returned to court for a hearing in accordance with subparagraphs (C) and (D) regarding whether antipsychotic medication shall be administered involuntarily.
(vi)A report made pursuant to paragraph (1) of subdivision (b) shall include a description of antipsychotic medication administered to the defendant and its effects and side effects, including effects on the defendants appearance or behavior that would affect the defendants ability to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a reasonable manner. During the time the defendant is confined in a state hospital or other treatment facility or placed on outpatient status, either the defendant or the people may request that the court review any order made pursuant to this subdivision. The defendant, to the same extent enjoyed by other patients in the state hospital or other treatment facility, shall have the right to contact the patients rights advocate regarding his or her rights under this section.
(C)If the defendant consented to antipsychotic medication as described in clause (iv) of subparagraph (B), but subsequently withdraws his or her consent, or, if involuntary antipsychotic medication was not ordered pursuant to clause (v) of subparagraph (B), and the treating psychiatrist determines that antipsychotic medication has become medically necessary and appropriate, the treating psychiatrist shall make efforts to obtain informed consent from the defendant for antipsychotic medication. If informed consent is not obtained from the defendant, and the treating psychiatrist is of the opinion that the defendant lacks capacity to make decisions regarding antipsychotic medication based on the conditions described in subclause (I) or (II) of clause (i) of subparagraph (B), the treating psychiatrist shall certify whether the lack of capacity and any applicable conditions described above exist. That certification shall contain an assessment of the current mental status of the defendant and the opinion of the treating psychiatrist that involuntary antipsychotic medication has become medically necessary and appropriate.
(D)(i)If the treating psychiatrist certifies that antipsychotic medication has become medically necessary and appropriate pursuant to subparagraph (C), antipsychotic medication may be administered to the defendant for not more than 21 days, provided, however, that, within 72 hours of the certification, the defendant is provided a medication review hearing before an administrative law judge to be conducted at the facility where the defendant is receiving treatment. The treating psychiatrist shall present the case for the certification for involuntary treatment and the defendant shall be represented by an attorney or a patients rights advocate. The attorney or patients rights advocate shall be appointed to meet with the defendant no later than one day prior to the medication review hearing to review the defendants rights at the medication review hearing, discuss the process, answer questions or concerns regarding involuntary medication or the hearing, assist the defendant in preparing for the hearing and advocating for his or her interests at the hearing, review the panels final determination following the hearing, advise the defendant of his or her right to judicial review of the panels decision, and provide the defendant with referral information for legal advice on the subject. The defendant shall also have the following rights with respect to the medication review hearing:
(I)To be given timely access to the defendants records.
(II) To be present at the hearing, unless the defendant waives that right.
(III)To present evidence at the hearing.
(IV)To question persons presenting evidence supporting involuntary medication.
(V)To make reasonable requests for attendance of witnesses on the defendants behalf.
(VI)To a hearing conducted in an impartial and informal manner.
(ii)If the administrative law judge determines that the defendant either meets the criteria specified in subclause (I) of clause (i) of subparagraph (B), or meets the criteria specified in subclause (II) of clause (i) of subparagraph (B), then antipsychotic medication may continue to be administered to the defendant for the 21-day certification period. Concurrently with the treating psychiatrists certification, the treating psychiatrist shall file a copy of the certification and a petition with the court for issuance of an order to administer antipsychotic medication beyond the 21-day certification period. For purposes of this subparagraph, the treating psychiatrist shall not be required to pay or deposit any fee for the filing of the petition or other document or paper related to the petition.
(iii)If the administrative law judge disagrees with the certification, medication may not be administered involuntarily until the court determines that antipsychotic medication should be administered pursuant to this section.
(iv)The court shall provide notice to the prosecuting attorney and to the attorney representing the defendant, and shall hold a hearing, no later than 18 days from the date of the certification, to determine whether antipsychotic medication should be ordered beyond the certification period.
(v)If, as a result of the hearing, the court determines that antipsychotic medication should be administered beyond the certification period, the court shall issue an order authorizing the administration of that medication.
(vi)The court shall render its decision on the petition and issue its order no later than three calendar days after the hearing and, in any event, no later than the expiration of the 21-day certification period.
(vii)If the administrative law judge upholds the certification pursuant to clause (ii), the court may, for a period not to exceed 14 days, extend the certification and continue the hearing pursuant to stipulation between the parties or upon a finding of good cause. In determining good cause, the court may review the petition filed with the court, the administrative law judges order, and any additional testimony needed by the court to determine if it is appropriate to continue medication beyond the 21-day certification and for a period of up to 14 days.
(viii)The district attorney, county counsel, or representative of a facility where a defendant found incompetent to stand trial is committed may petition the court for an order to administer involuntary medication pursuant to the criteria set forth in subclauses (II) and (III) of clause (i) of subparagraph (B). The order is reviewable as provided in paragraph (7).
(3)When the court orders that the defendant be committed to the State Department of State Hospitals or other public or private treatment facility, the court shall provide copies of the following documents prior to the admission of the defendant to the State Department of State Hospitals or other treatment facility where the defendant is to be committed:
(A)The commitment order, including a specification of the charges.
(B)A computation or statement setting forth the maximum term of commitment in accordance with subdivision (c).
(C)A computation or statement setting forth the amount of credit for time served, if any, to be deducted from the maximum term of commitment.
(D)State summary criminal history information.
(E)Arrest reports prepared by the police department or other law enforcement agency.
(F)Court-ordered psychiatric examination or evaluation reports.
(G)The community program directors placement recommendation report.
(H)Records of a finding of mental incompetence pursuant to this chapter arising out of a complaint charging a felony offense specified in Section 290 or a pending Section 1368 proceeding arising out of a charge of a Section 290 offense.
(I)Medical records.
(4)When the defendant is committed to a treatment facility pursuant to clause (i) of subparagraph (B) of paragraph (1) or the court makes the findings specified in clause (ii) or (iii) of subparagraph (B) of paragraph (1) to assign the defendant to a treatment facility other than a state hospital or other secure treatment facility, the court shall order that notice be given to the appropriate law enforcement agency or agencies having local jurisdiction at the site of the placement facility of any finding of mental incompetence pursuant to this chapter arising out of a charge of a Section 290 offense.
(5)When directing that the defendant be confined in a state hospital pursuant to this subdivision, the court shall commit the patient to the State Department of State Hospitals.
(6)(A)If the defendant is committed or transferred to the State Department of State Hospitals pursuant to this section, the court may, upon receiving the written recommendation of the medical director of the state hospital and the community program director that the defendant be transferred to a public or private treatment facility approved by the community program director, order the defendant transferred to that facility. If the defendant is committed or transferred to a public or private treatment facility approved by the community program director, the court may, upon receiving the written recommendation of the community program director, transfer the defendant to the State Department of State Hospitals or to another public or private treatment facility approved by the community program director. In the event of dismissal of the criminal charges before the defendant recovers competence, the person shall be subject to the applicable provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code). If either the defendant or the prosecutor chooses to contest either kind of order of transfer, a petition may be filed in the court for a hearing, which shall be held if the court determines that sufficient grounds exist. At the hearing, the prosecuting attorney or the defendant may present evidence bearing on the order of transfer. The court shall use the same standards as are used in conducting probation revocation hearings pursuant to Section 1203.2.
Prior to making an order for transfer under this section, the court shall notify the defendant, the attorney of record for the defendant, the prosecuting attorney, and the community program director or a designee.
(B)If the defendant is initially committed to the State Department of State Hospitals or secure treatment facility pursuant to clause (ii) or (iii) of subparagraph (B) of paragraph (1) and is subsequently transferred to any other facility, copies of the documents specified in paragraph (3) shall be taken with the defendant to each subsequent facility to which the defendant is transferred. The transferring facility shall also notify the appropriate law enforcement agency or agencies having local jurisdiction at the site of the new facility that the defendant is a person subject to clause (ii) or (iii) of subparagraph (B) of paragraph (1).
(7)(A)An order by the court authorizing involuntary medication of the defendant shall be valid for no more than one year. The court shall review the order at the time of the review of the initial report and the six-month progress reports pursuant to paragraph (1) of subdivision (b) to determine if the grounds for the authorization remain. In the review, the court shall consider the reports of the treating psychiatrist or psychiatrists and the defendants patients rights advocate or attorney. The court may require testimony from the treating psychiatrist and the patients rights advocate or attorney, if necessary. The court may continue the order authorizing involuntary medication for up to another six months, or vacate the order, or make any other appropriate order.
(B)Within 60 days before the expiration of the one-year involuntary medication order, the district attorney, county counsel, or representative of any facility where a defendant found incompetent to stand trial is committed may petition the committing court for a renewal, subject to the same conditions and requirements as in subparagraph (A). The petition shall include the basis for involuntary medication set forth in clause (i) of subparagraph (B) of paragraph (2). Notice of the petition shall be provided to the defendant, the defendants attorney, and the district attorney. The court shall hear and determine whether the defendant continues to meet the criteria set forth in clause (i) of subparagraph (B) of paragraph (2). The hearing on any petition to renew an order for involuntary medication shall be conducted prior to the expiration of the current order.
(8)If For purposes of subparagraph (B) of paragraph (2) and paragraphs (3) to (7), inclusive, if the treating psychiatrist determines that there is a need, based on preserving his or her rapport with the patient, to prevent harm, or other factors, patient or to preventing harm, the treating psychiatrist may request that the facility medical director designate another psychiatrist to act in the place of the treating psychiatrist for purposes of this subdivision. If the medical director of the facility designates another psychiatrist to act pursuant to this paragraph, the treating psychiatrist shall brief the acting psychiatrist of the relevant facts of the case. case and the acting psychiatrist shall examine the patient prior to the hearing.
(b)(1)Within 90 days of a commitment made pursuant to subdivision (a), the medical director of the state hospital or other treatment facility to which the defendant is confined shall make a written report to the court and the community program director for the county or region of commitment, or a designee, concerning the defendants progress toward recovery of mental competence and whether the administration of antipsychotic medication remains necessary. If the defendant is on outpatient status, the outpatient treatment staff shall make a written report to the community program director concerning the defendants progress toward recovery of mental competence. Within 90 days of placement on outpatient status, the community program director shall report to the court on this matter. If the defendant has not recovered mental competence, but the report discloses a substantial likelihood that the defendant will regain mental competence in the foreseeable future, the defendant shall remain in the state hospital or other treatment facility or on outpatient status. Thereafter, at six-month intervals or until the defendant becomes mentally competent, if the defendant is confined in a treatment facility, the medical director of the hospital or person in charge of the facility shall report in writing to the court and the community program director or a designee regarding the defendants progress toward recovery of mental competence and whether the administration of antipsychotic medication remains necessary. If the defendant is on outpatient status, after the initial 90-day report, the outpatient treatment staff shall report to the community program director on the defendants progress toward recovery, and the community program director shall report to the court on this matter at six-month intervals. A copy of these reports shall be provided to the prosecutor and defense counsel by the court.
(A)If the report indicates that there is no substantial likelihood that the defendant will regain mental competence in the foreseeable future, the committing court shall order the defendant to be returned to the court for proceedings pursuant to paragraph (2) of subdivision (c) no later than 10 days following receipt of the report. The court shall transmit a copy of its order to the community program director or a designee.
(B)If the report indicates that there is no substantial likelihood that the defendant will regain mental competence in the foreseeable future, the medical director of the state hospital or other treatment facility to which the defendant is confined shall do both of the following:
(i)Promptly notify and provide a copy of the report to the defense counsel and the district attorney.
(ii)Provide a separate notification, in compliance with applicable privacy laws, to the committing countys sheriff that transportation will be needed for the patient.
(2)If the court has issued an order authorizing the treating facility to involuntarily administer antipsychotic medication to the defendant, the reports made pursuant to paragraph (1) concerning the defendants progress toward regaining competency shall also consider the issue of involuntary medication. Each report shall include, but is not limited to, all of the following:
(A)Whether or not the defendant has the capacity to make decisions concerning antipsychotic medication.
(B)If the defendant lacks capacity to make decisions concerning antipsychotic medication, whether the defendant risks serious harm to his or her physical or mental health if not treated with antipsychotic medication.
(C)Whether or not the defendant presents a danger to others if he or she is not treated with antipsychotic medication.
(D)Whether the defendant has a mental illness for which medications are the only effective treatment.
(E)Whether there are any side effects from the medication currently being experienced by the defendant that would interfere with the defendants ability to collaborate with counsel.
(F)Whether there are any effective alternatives to medication.
(G)How quickly the medication is likely to bring the defendant to competency.
(H)Whether the treatment plan includes methods other than medication to restore the defendant to competency.
(I)A statement, if applicable, that no medication is likely to restore the defendant to competency.
(3)After reviewing the reports, the court shall determine whether or not grounds for the order authorizing involuntary administration of antipsychotic medication still exist and shall do one of the following:
(A)If the original grounds for involuntary medication still exist, the order authorizing the treating facility to involuntarily administer antipsychotic medication to the defendant shall remain in effect.
(B)If the original grounds for involuntary medication no longer exist, and there is no other basis for involuntary administration of antipsychotic medication, the order for the involuntary administration of antipsychotic medication shall be vacated.
(C)If the original grounds for involuntary medication no longer exist, and the report states that there is another basis for involuntary administration of antipsychotic medication, the court shall set a hearing within 21 days to determine whether the order for the involuntary administration of antipsychotic medication shall be vacated or whether a new order for the involuntary administration of antipsychotic medication shall be issued. The hearing shall proceed as set forth in subparagraph (B) of paragraph (2) of subdivision (a).
(4)A defendant who has been committed or has been on outpatient status for 18 months and is still hospitalized or on outpatient status shall be returned to the committing court where a hearing shall be held pursuant to the procedures set forth in Section 1369. The court shall transmit a copy of its order to the community program director or a designee.
(5)If it is determined by the court that no treatment for the defendants mental impairment is being conducted, the defendant shall be returned to the committing court. The court shall transmit a copy of its order to the community program director or a designee.
(6)At each review by the court specified in this subdivision, the court shall determine if the security level of housing and treatment is appropriate and may make an order in accordance with its determination. If the court determines that the defendant shall continue to be treated in the state hospital or on an outpatient basis, the court shall determine issues concerning administration of antipsychotic medication, as set forth in subparagraph (B) of paragraph (2) of subdivision (a).
(c)(1)At the end of three years from the date of commitment or a period of commitment equal to the maximum term of imprisonment provided by law for the most serious offense charged in the information, indictment, or misdemeanor complaint, or the maximum term of imprisonment provided by law for a violation of probation or mandatory supervision, whichever is shorter, but no later than 90 days prior to the expiration of the defendants term of commitment, a defendant who has not recovered mental competence shall be returned to the committing court. The court shall notify the community program director or a designee of the return and of any resulting court orders.
(2)Whenever a defendant is returned to the court pursuant to paragraph (1) or (4) of subdivision (b) or paragraph (1) of this subdivision and it appears to the court that the defendant is gravely disabled, as defined in subparagraph (B) of paragraph (1) of subdivision (h) of Section 5008 of the Welfare and Institutions Code, the court shall order the conservatorship investigator of the county of commitment of the defendant to initiate conservatorship proceedings for the defendant pursuant to Chapter 3 (commencing with Section 5350) of Part 1 of Division 5 of the Welfare and Institutions Code. Hearings required in the conservatorship proceedings shall be held in the superior court in the county that ordered the commitment. The court shall transmit a copy of the order directing initiation of conservatorship proceedings to the community program director or a designee, the sheriff and the district attorney of the county in which criminal charges are pending, and the defendants counsel of record. The court shall notify the community program director or a designee, the sheriff and district attorney of the county in which criminal charges are pending, and the defendants counsel of record of the outcome of the conservatorship proceedings.
(3)If a change in placement is proposed for a defendant who is committed pursuant to subparagraph (B) of paragraph (1) of subdivision (h) of Section 5008 of the Welfare and Institutions Code, the court shall provide notice and an opportunity to be heard with respect to the proposed placement of the defendant to the sheriff and the district attorney of the county in which the criminal charges or revocation proceedings are pending.
(4)If the defendant is confined in a treatment facility, a copy of any report to the committing court regarding the defendants progress toward recovery of mental competence shall be provided by the committing court to the prosecutor and to the defense counsel.
(d)With the exception of proceedings alleging a violation of mandatory supervision, the criminal action remains subject to dismissal pursuant to Section 1385. If the criminal action is dismissed, the court shall transmit a copy of the order of dismissal to the community program director or a designee. In a proceeding alleging a violation of mandatory supervision, if the person is not placed under a conservatorship as described in paragraph (2) of subdivision (c), or if a conservatorship is terminated, the court shall reinstate mandatory supervision and may modify the terms and conditions of supervision to include appropriate mental health treatment or refer the matter to a local mental health court, reentry court, or other collaborative justice court available for improving the mental health of the defendant.
(e)If the criminal action against the defendant is dismissed, the defendant shall be released from commitment ordered under this section, but without prejudice to the initiation of any proceedings that may be appropriate under the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code).
(f)As used in this chapter, community program director means the person, agency, or entity designated by the State Department of State Hospitals pursuant to Section 1605 of this code and Section 4360 of the Welfare and Institutions Code.
(g)For the purpose of this section, secure treatment facility shall not include, except for state mental hospitals, state developmental centers, and correctional treatment facilities, any facility licensed pursuant to Chapter 2 (commencing with Section 1250) of, Chapter 3 (commencing with Section 1500) of, or Chapter 3.2 (commencing with Section 1569) of, Division 2 of the Health and Safety Code, or any community board and care facility.
(h)Nothing in this section shall preclude a defendant from filing a petition for habeas corpus to challenge the continuing validity of an order authorizing a treatment facility or outpatient program to involuntarily administer antipsychotic medication to a person being treated as incompetent to stand trial.
(a)(1)(A)If the defendant is found mentally competent, the criminal process shall resume, the trial on the offense charged or hearing on the alleged violation shall proceed, and judgment may be pronounced.
(B)If the defendant is found mentally incompetent, the trial, the hearing on the alleged violation, or the judgment shall be suspended until the person becomes mentally competent.
(i)In the meantime, the court shall order that the mentally incompetent defendant be delivered by the sheriff to a state hospital for the care and treatment of the mentally disordered, as directed by the State Department of State Hospitals, or to any other available public or private treatment facility, including a local county jail treatment facility or the community-based residential treatment system established pursuant to Article 1 (commencing with Section 5670) of Chapter 2.5 of Part 2 of Division 5 of the Welfare and Institutions Code if the facility has a secured perimeter or a locked and controlled treatment facility, approved by the community program director that will promote the defendants speedy restoration to mental competence, or placed on outpatient status as specified in Section 1600.
(ii)However, if the action against the defendant who has been found mentally incompetent is on a complaint charging a felony offense specified in Section 290, the prosecutor shall determine whether the defendant previously has been found mentally incompetent to stand trial pursuant to this chapter on a charge of a Section 290 offense, or whether the defendant is currently the subject of a pending Section 1368 proceeding arising out of a charge of a Section 290 offense. If either determination is made, the prosecutor shall so notify the court and defendant in writing. After this notification, and opportunity for hearing, the court shall order that the defendant be delivered by the sheriff to a state hospital, as directed by the State Department of State Hospitals, or other secure treatment facility for the care and treatment of the mentally disordered unless the court makes specific findings on the record that an alternative placement would provide more appropriate treatment for the defendant and would not pose a danger to the health and safety of others.
(iii)If the action against the defendant who has been found mentally incompetent is on a complaint charging a felony offense specified in Section 290 and the defendant has been denied bail pursuant to subdivision (b) of Section 12 of Article I of the California Constitution because the court has found, based upon clear and convincing evidence, a substantial likelihood that the persons release would result in great bodily harm to others, the court shall order that the defendant be delivered by the sheriff to a state hospital for the care and treatment of the mentally disordered, as directed by the State Department of State Hospitals, unless the court makes specific findings on the record that an alternative placement would provide more appropriate treatment for the defendant and would not pose a danger to the health and safety of others.
(iv)The clerk of the court shall notify the Department of Justice in writing of a finding of mental incompetence with respect to a defendant who is subject to clause (ii) or (iii) for inclusion in his or her state summary criminal history information.
(C)Upon the filing of a certificate of restoration to competence, the court shall order that the defendant be returned to court in accordance with Section 1372. The court shall transmit a copy of its order to the community program director or a designee.
(D)A defendant charged with a violent felony may not be delivered to a state hospital or treatment facility pursuant to this subdivision unless the state hospital or treatment facility has a secured perimeter or a locked and controlled treatment facility, and the judge determines that the public safety will be protected.
(E)For purposes of this paragraph, violent felony means an offense specified in subdivision (c) of Section 667.5.
(F)A defendant charged with a violent felony may be placed on outpatient status, as specified in Section 1600, only if the court finds that the placement will not pose a danger to the health or safety of others. If the court places a defendant charged with a violent felony on outpatient status, as specified in Section 1600, the court shall serve copies of the placement order on defense counsel, the sheriff in the county where the defendant will be placed, and the district attorney for the county in which the violent felony charges are pending against the defendant.
(2)Prior to making the order directing that the defendant be committed to the State Department of State Hospitals or other treatment facility or placed on outpatient status, the court shall proceed as follows:
(A)The court shall order the community program director or a designee to evaluate the defendant and to submit to the court within 15 judicial days of the order a written recommendation as to whether the defendant should be required to undergo outpatient treatment, or be committed to the State Department of State Hospitals or to any other treatment facility. A person shall not be admitted to a state hospital or other treatment facility or placed on outpatient status under this section without having been evaluated by the community program director or a designee. The community program director or designee shall evaluate the appropriate placement for the defendant between the State Department of State Hospitals, a local county jail treatment facility, or the community-based residential treatment system based upon guidelines provided by the State Department of State Hospitals. If a local county jail treatment facility is selected, the State Department of State Hospitals shall provide treatment at the county jail treatment facility and reimburse the county jail treatment facility for the reasonable costs of the bed during the treatment. If the community-based residential treatment system is selected, the State Department of State Hospitals shall provide reimbursement to the community-based residential treatment system for the cost of treatment as negotiated with the State Department of State Hospitals. The six-month limitation in Section 1369.1 shall not apply to individuals deemed incompetent to stand trial who are being treated to restore competency within a county jail treatment facility pursuant to this section.
(B)The court shall hear and determine whether the defendant lacks capacity to make decisions regarding the administration of antipsychotic medication. The court shall consider opinions in the reports prepared pursuant to subdivision (a) of Section 1369, as applicable to the issue of whether the defendant lacks capacity to make decisions regarding the administration of antipsychotic medication, and shall proceed as follows:
(i)The court shall hear and determine whether any of the following is true:
(I)The defendant lacks capacity to make decisions regarding antipsychotic medication, the defendants mental disorder requires medical treatment with antipsychotic medication, and, if the defendants mental disorder is not treated with antipsychotic medication, it is probable that serious harm to the physical or mental health of the patient will result. Probability of serious harm to the physical or mental health of the defendant requires evidence that the defendant is presently suffering adverse effects to his or her physical or mental health, or the defendant has previously suffered these effects as a result of a mental disorder and his or her condition is substantially deteriorating. The fact that a defendant has a diagnosis of a mental disorder does not alone establish probability of serious harm to the physical or mental health of the defendant.
(II)The defendant is a danger to others, in that the defendant has inflicted, attempted to inflict, or made a serious threat of inflicting substantial physical harm on another while in custody, or the defendant had inflicted, attempted to inflict, or made a serious threat of inflicting substantial physical harm on another that resulted in his or her being taken into custody, and the defendant presents, as a result of mental disorder or mental defect, a demonstrated danger of inflicting substantial physical harm on others. Demonstrated danger may be based on an assessment of the defendants present mental condition, including a consideration of past behavior of the defendant within six years prior to the time the defendant last attempted to inflict, inflicted, or threatened to inflict substantial physical harm on another, and other relevant evidence.
(III)The people have charged the defendant with a serious crime against the person or property, involuntary administration of antipsychotic medication is substantially likely to render the defendant competent to stand trial, the medication is unlikely to have side effects that interfere with the defendants ability to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a reasonable manner, less intrusive treatments are unlikely to have substantially the same results, and antipsychotic medication is in the patients best medical interest in light of his or her medical condition.
(ii)If the court finds any of the conditions described in clause (i) to be true, the court shall issue an order authorizing involuntary administration of antipsychotic medication to the defendant when and as prescribed by the defendants treating psychiatrist at any facility housing the defendant for purposes of this chapter. The order shall be valid for no more than one year, pursuant to subparagraph (A) of paragraph (7). The court shall not order involuntary administration of psychotropic medication under subclause (III) of clause (i) unless the court has first found that the defendant does not meet the criteria for involuntary administration of psychotropic medication under subclause (I) of clause (i) and does not meet the criteria under subclause (II) of clause (i).
(iii)In all cases, the treating hospital, facility, or program may administer medically appropriate antipsychotic medication prescribed by a psychiatrist in an emergency as described in subdivision (m) of Section 5008 of the Welfare and Institutions Code.
(iv)If the court has determined that the defendant has the capacity to make decisions regarding antipsychotic medication, and if the defendant, with advice of his or her counsel, consents, the court order of commitment shall include confirmation that antipsychotic medication may be given to the defendant as prescribed by a treating psychiatrist pursuant to the defendants consent. The commitment order shall also indicate that, if the defendant withdraws consent for antipsychotic medication, after the treating psychiatrist complies with the provisions of subparagraph (C), the defendant shall be returned to court for a hearing in accordance with subparagraphs (C) and (D) regarding whether antipsychotic medication shall be administered involuntarily.
(v)If the court has determined that the defendant has the capacity to make decisions regarding antipsychotic medication and if the defendant, with advice from his or her counsel, does not consent, the court order for commitment shall indicate that, after the treating psychiatrist complies with the provisions of subparagraph (C), the defendant shall be returned to court for a hearing in accordance with subparagraphs (C) and (D) regarding whether antipsychotic medication shall be administered involuntarily.
(vi)A report made pursuant to paragraph (1) of subdivision (b) shall include a description of antipsychotic medication administered to the defendant and its effects and side effects, including effects on the defendants appearance or behavior that would affect the defendants ability to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a reasonable manner. During the time the defendant is confined in a state hospital or other treatment facility or placed on outpatient status, either the defendant or the people may request that the court review any order made pursuant to this subdivision. The defendant, to the same extent enjoyed by other patients in the state hospital or other treatment facility, shall have the right to contact the patients rights advocate regarding his or her rights under this section.
(C)If the defendant consented to antipsychotic medication as described in clause (iv) of subparagraph (B), but subsequently withdraws his or her consent, or, if involuntary antipsychotic medication was not ordered pursuant to clause (v) of subparagraph (B), and a the treating psychiatrist designated by the facilitys medical director determines that antipsychotic medication has become medically necessary and appropriate, the treating psychiatrist designated by the facilitys medical director shall make efforts to obtain informed consent from the defendant for antipsychotic medication. If informed consent is not obtained from the defendant, and the treating psychiatrist designated by the facilitys medical director is of the opinion that the defendant lacks capacity to make decisions regarding antipsychotic medication based on the conditions described in subclause (I) or (II) of clause (i) of subparagraph (B), the treating psychiatrist designated by the facilitys medical director shall certify whether the lack of capacity and any applicable conditions described above exist. That certification shall contain an assessment of the current mental status of the defendant and the opinion of the treating psychiatrist designated by the facilitys medical director that involuntary antipsychotic medication has become medically necessary and appropriate.
(D)(i)If the treating psychiatrist designated by the facilitys medical director certifies that antipsychotic medication has become medically necessary and appropriate pursuant to subparagraph (C), antipsychotic medication may be administered to the defendant for not more than 21 days, provided, however, that, within 72 hours of the certification, the defendant is provided a medication review hearing before an administrative law judge to be conducted at the facility where the defendant is receiving treatment. The treating psychiatrist designated by the facilitys medical director shall present the case for the certification for involuntary treatment and the defendant shall be represented by an attorney or a patients rights advocate. The attorney or patients rights advocate shall be appointed to meet with the defendant no later than one day prior to the medication review hearing to review the defendants rights at the medication review hearing, discuss the process, answer questions or concerns regarding involuntary medication or the hearing, assist the defendant in preparing for the hearing and advocating for his or her interests at the hearing, review the panels final determination following the hearing, advise the defendant of his or her right to judicial review of the panels decision, and provide the defendant with referral information for legal advice on the subject. The defendant shall also have the following rights with respect to the medication review hearing:
(I)To be given timely access to the defendants records.
(II) To be present at the hearing, unless the defendant waives that right.
(III)To present evidence at the hearing.
(IV)To question persons presenting evidence supporting involuntary medication.
(V)To make reasonable requests for attendance of witnesses on the defendants behalf.
(VI)To a hearing conducted in an impartial and informal manner.
(ii)If the administrative law judge determines that the defendant either meets the criteria specified in subclause (I) of clause (i) of subparagraph (B), or meets the criteria specified in subclause (II) of clause (i) of subparagraph (B), then antipsychotic medication may continue to be administered to the defendant for the 21-day certification period. Concurrently with the treating psychiatrists certification, the treating psychiatrist shall file a copy of the certification and a petition with the court for issuance of an order to administer antipsychotic medication beyond the 21-day certification period. For purposes of this subparagraph, the treating psychiatrist shall not be required to pay or deposit any fee for the filing of the petition or other document or paper related to the petition.
(iii)If the administrative law judge disagrees with the certification, medication may not be administered involuntarily until the court determines that antipsychotic medication should be administered pursuant to this section.
(iv)The court shall provide notice to the prosecuting attorney and to the attorney representing the defendant, and shall hold a hearing, no later than 18 days from the date of the certification, to determine whether antipsychotic medication should be ordered beyond the certification period.
(v)If, as a result of the hearing, the court determines that antipsychotic medication should be administered beyond the certification period, the court shall issue an order authorizing the administration of that medication.
(vi)The court shall render its decision on the petition and issue its order no later than three calendar days after the hearing and, in any event, no later than the expiration of the 21-day certification period.
(vii)If the administrative law judge upholds the certification pursuant to clause (ii), the court may, for a period not to exceed 14 days, extend the certification and continue the hearing pursuant to stipulation between the parties or upon a finding of good cause. In determining good cause, the court may review the petition filed with the court, the administrative law judges order, and any additional testimony needed by the court to determine if it is appropriate to continue medication beyond the 21-day certification and for a period of up to 14 days.
(viii)The district attorney, county counsel, or representative of a facility where a defendant found incompetent to stand trial is committed may petition the court for an order to administer involuntary medication pursuant to the criteria set forth in subclauses (II) and (III) of clause (i) of subparagraph (B). The order is reviewable as provided in paragraph (7).
(3)When the court orders that the defendant be committed to the State Department of State Hospitals or other public or private treatment facility, the court shall provide copies of the following documents prior to the admission of the defendant to the State Department of State Hospitals or other treatment facility where the defendant is to be committed:
(A)The commitment order, including a specification of the charges.
(B)A computation or statement setting forth the maximum term of commitment in accordance with subdivision (c).
(C)A computation or statement setting forth the amount of credit for time served, if any, to be deducted from the maximum term of commitment.
(D)State summary criminal history information.
(E)Arrest reports prepared by the police department or other law enforcement agency.
(F)Court-ordered psychiatric examination or evaluation reports.
(G)The community program directors placement recommendation report.
(H)Records of a finding of mental incompetence pursuant to this chapter arising out of a complaint charging a felony offense specified in Section 290 or a pending Section 1368 proceeding arising out of a charge of a Section 290 offense.
(I)Medical records.
(4)When the defendant is committed to a treatment facility pursuant to clause (i) of subparagraph (B) of paragraph (1) or the court makes the findings specified in clause (ii) or (iii) of subparagraph (B) of paragraph (1) to assign the defendant to a treatment facility other than a state hospital or other secure treatment facility, the court shall order that notice be given to the appropriate law enforcement agency or agencies having local jurisdiction at the site of the placement facility of any finding of mental incompetence pursuant to this chapter arising out of a charge of a Section 290 offense.
(5)When directing that the defendant be confined in a state hospital pursuant to this subdivision, the court shall commit the patient to the State Department of State Hospitals.
(6)(A)If the defendant is committed or transferred to the State Department of State Hospitals pursuant to this section, the court may, upon receiving the written recommendation of the medical director of the state hospital and the community program director that the defendant be transferred to a public or private treatment facility approved by the community program director, order the defendant transferred to that facility. If the defendant is committed or transferred to a public or private treatment facility approved by the community program director, the court may, upon receiving the written recommendation of the community program director, transfer the defendant to the State Department of State Hospitals or to another public or private treatment facility approved by the community program director. In the event of dismissal of the criminal charges before the defendant recovers competence, the person shall be subject to the applicable provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code). If either the defendant or the prosecutor chooses to contest either kind of order of transfer, a petition may be filed in the court for a hearing, which shall be held if the court determines that sufficient grounds exist. At the hearing, the prosecuting attorney or the defendant may present evidence bearing on the order of transfer. The court shall use the same standards as are used in conducting probation revocation hearings pursuant to Section 1203.2.
Prior to making an order for transfer under this section, the court shall notify the defendant, the attorney of record for the defendant, the prosecuting attorney, and the community program director or a designee.
(B)If the defendant is initially committed to the State Department of State Hospitals or secure treatment facility pursuant to clause (ii) or (iii) of subparagraph (B) of paragraph (1) and is subsequently transferred to any other facility, copies of the documents specified in paragraph (3) shall be taken with the defendant to each subsequent facility to which the defendant is transferred. The transferring facility shall also notify the appropriate law enforcement agency or agencies having local jurisdiction at the site of the new facility that the defendant is a person subject to clause (ii) or (iii) of subparagraph (B) of paragraph (1).
(7)(A)An order by the court authorizing involuntary medication of the defendant shall be valid for no more than one year. The court shall review the order at the time of the review of the initial report and the six-month progress reports pursuant to paragraph (1) of subdivision (b) to determine if the grounds for the authorization remain. In the review, the court shall consider the reports of the treating psychiatrist or psychiatrists and the defendants patients rights advocate or attorney. The court may require testimony from the treating psychiatrist or psychiatristsdesignated by the facilitys medical director and the patients rights advocate or attorney, if necessary. The court may continue the order authorizing involuntary medication for up to another six months, or vacate the order, or make any other appropriate order.
(B)Within 60 days before the expiration of the one-year involuntary medication order, the district attorney, county counsel, or representative of any facility where a defendant found incompetent to stand trial is committed may petition the committing court for a renewal, subject to the same conditions and requirements as in subparagraph (A). The petition shall include the basis for involuntary medication set forth in clause (i) of subparagraph (B) of paragraph (2). Notice of the petition shall be provided to the defendant, the defendants attorney, and the district attorney. The court shall hear and determine whether the defendant continues to meet the criteria set forth in clause (i) of subparagraph (B) of paragraph (2). The hearing on any petition to renew an order for involuntary medication shall be conducted prior to the expiration of the current order.
(8)If the treating psychiatrist determines that there is a need, based on preserving his or her rapport with the patient, to prevent harm, or other factors, the treating psychiatrist may request that the facility medical director designate another psychiatrist to act in the place of the treating psychiatrist for purposes of this subdivision. If the medical director of the facility designates another psychiatrist to act pursuant to this paragraph, the treating psychiatrist shall brief the acting psychiatrist of the relevant facts of the case.
(b)(1)Within 90 days of a commitment made pursuant to subdivision (a), the medical director of the state hospital or other treatment facility to which the defendant is confined shall make a written report to the court and the community program director for the county or region of commitment, or a designee, concerning the defendants progress toward recovery of mental competence and whether the administration of antipsychotic medication remains necessary. If the defendant is on outpatient status, the outpatient treatment staff shall make a written report to the community program director concerning the defendants progress toward recovery of mental competence. Within 90 days of placement on outpatient status, the community program director shall report to the court on this matter. If the defendant has not recovered mental competence, but the report discloses a substantial likelihood that the defendant will regain mental competence in the foreseeable future, the defendant shall remain in the state hospital or other treatment facility or on outpatient status. Thereafter, at six-month intervals or until the defendant becomes mentally competent, if the defendant is confined in a treatment facility, the medical director of the hospital or person in charge of the facility shall report in writing to the court and the community program director or a designee regarding the defendants progress toward recovery of mental competence and whether the administration of antipsychotic medication remains necessary. If the defendant is on outpatient status, after the initial 90-day report, the outpatient treatment staff shall report to the community program director on the defendants progress toward recovery, and the community program director shall report to the court on this matter at six-month intervals. A copy of these reports shall be provided to the prosecutor and defense counsel by the court.
(A)If the report indicates that there is no substantial likelihood that the defendant will regain mental competence in the foreseeable future, the committing court shall order the defendant to be returned to the court for proceedings pursuant to paragraph (2) of subdivision (c) no later than 10 days following receipt of the report. The court shall transmit a copy of its order to the community program director or a designee.
(B)If the report indicates that there is no substantial likelihood that the defendant will regain mental competence in the foreseeable future, the medical director of the state hospital or other treatment facility to which the defendant is confined shall do both of the following:
(i)Promptly notify and provide a copy of the report to the defense counsel and the district attorney.
(ii)Provide a separate notification, in compliance with applicable privacy laws, to the committing countys sheriff that transportation will be needed for the patient.
(2)If the court has issued an order authorizing the treating facility to involuntarily administer antipsychotic medication to the defendant, the reports made pursuant to paragraph (1) concerning the defendants progress toward regaining competency shall also consider the issue of involuntary medication. Each report shall include, but is not limited to, all the following:
(A)Whether or not the defendant has the capacity to make decisions concerning antipsychotic medication.
(B)If the defendant lacks capacity to make decisions concerning antipsychotic medication, whether the defendant risks serious harm to his or her physical or mental health if not treated with antipsychotic medication.
(C)Whether or not the defendant presents a danger to others if he or she is not treated with antipsychotic medication.
(D)Whether the defendant has a mental illness for which medications are the only effective treatment.
(E)Whether there are any side effects from the medication currently being experienced by the defendant that would interfere with the defendants ability to collaborate with counsel.
(F)Whether there are any effective alternatives to medication.
(G)How quickly the medication is likely to bring the defendant to competency.
(H)Whether the treatment plan includes methods other than medication to restore the defendant to competency.
(I)A statement, if applicable, that no medication is likely to restore the defendant to competency.
(3)After reviewing the reports, the court shall determine whether or not grounds for the order authorizing involuntary administration of antipsychotic medication still exist and shall do one of the following:
(A)If the original grounds for involuntary medication still exist, the order authorizing the treating facility to involuntarily administer antipsychotic medication to the defendant shall remain in effect.
(B)If the original grounds for involuntary medication no longer exist, and there is no other basis for involuntary administration of antipsychotic medication, the order for the involuntary administration of antipsychotic medication shall be vacated.
(C)If the original grounds for involuntary medication no longer exist, and the report states that there is another basis for involuntary administration of antipsychotic medication, the court shall set a hearing within 21 days to determine whether the order for the involuntary administration of antipsychotic medication shall be vacated or whether a new order for the involuntary administration of antipsychotic medication shall be issued. The hearing shall proceed as set forth in subparagraph (B) of paragraph (2) of subdivision (a).
(4)A defendant who has been committed or has been on outpatient status for 18 months and is still hospitalized or on outpatient status shall be returned to the committing court where a hearing shall be held pursuant to the procedures set forth in Section 1369. The court shall transmit a copy of its order to the community program director or a designee.
(5)If it is determined by the court that no treatment for the defendants mental impairment is being conducted, the defendant shall be returned to the committing court. The court shall transmit a copy of its order to the community program director or a designee.
(6)At each review by the court specified in this subdivision, the court shall determine if the security level of housing and treatment is appropriate and may make an order in accordance with its determination. If the court determines that the defendant shall continue to be treated in the state hospital or on an outpatient basis, the court shall determine issues concerning administration of antipsychotic medication, as set forth in subparagraph (B) of paragraph (2) of subdivision (a).
(c)(1)At the end of three years from the date of commitment or a period of commitment equal to the maximum term of imprisonment provided by law for the most serious offense charged in the information, indictment, or misdemeanor complaint, or the maximum term of imprisonment provided by law for a violation of probation or mandatory supervision, whichever is shorter, but no later than 90 days prior to the expiration of the defendants term of commitment, a defendant who has not recovered mental competence shall be returned to the committing court. The court shall notify the community program director or a designee of the return and of any resulting court orders.
(2)Whenever a defendant is returned to the court pursuant to paragraph (1) or (4) of subdivision (b) or paragraph (1) of this subdivision and it appears to the court that the defendant is gravely disabled, as defined in subparagraph (B) of paragraph (1) of subdivision (h) of Section 5008 of the Welfare and Institutions Code, the court shall order the conservatorship investigator of the county of commitment of the defendant to initiate conservatorship proceedings for the defendant pursuant to Chapter 3 (commencing with Section 5350) of Part 1 of Division 5 of the Welfare and Institutions Code. Hearings required in the conservatorship proceedings shall be held in the superior court in the county that ordered the commitment. The court shall transmit a copy of the order directing initiation of conservatorship proceedings to the community program director or a designee, the sheriff and the district attorney of the county in which criminal charges are pending, and the defendants counsel of record. The court shall notify the community program director or a designee, the sheriff and district attorney of the county in which criminal charges are pending, and the defendants counsel of record of the outcome of the conservatorship proceedings.
(3)If a change in placement is proposed for a defendant who is committed pursuant to subparagraph (B) of paragraph (1) of subdivision (h) of Section 5008 of the Welfare and Institutions Code, the court shall provide notice and an opportunity to be heard with respect to the proposed placement of the defendant to the sheriff and the district attorney of the county in which the criminal charges or revocation proceedings are pending.
(4)If the defendant is confined in a treatment facility, a copy of any report to the committing court regarding the defendants progress toward recovery of mental competence shall be provided by the committing court to the prosecutor and to the defense counsel.
(d)With the exception of proceedings alleging a violation of mandatory supervision, the criminal action remains subject to dismissal pursuant to Section 1385. If the criminal action is dismissed, the court shall transmit a copy of the order of dismissal to the community program director or a designee. In a proceeding alleging a violation of mandatory supervision, if the person is not placed under a conservatorship as described in paragraph (2) of subdivision (c), or if a conservatorship is terminated, the court shall reinstate mandatory supervision and may modify the terms and conditions of supervision to include appropriate mental health treatment or refer the matter to a local mental health court, reentry court, or other collaborative justice court available for improving the mental health of the defendant.
(e)If the criminal action against the defendant is dismissed, the defendant shall be released from commitment ordered under this section, but without prejudice to the initiation of any proceedings that may be appropriate under the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code).
(f)As used in this chapter, community program director means the person, agency, or entity designated by the State Department of State Hospitals pursuant to Section 1605 of this code and Section 4360 of the Welfare and Institutions Code.
(g)For the purpose of this section, secure treatment facility shall not include, except for state mental hospitals, state developmental centers, and correctional treatment facilities, any facility licensed pursuant to Chapter 2 (commencing with Section 1250) of, Chapter 3 (commencing with Section 1500) of, or Chapter 3.2 (commencing with Section 1569) of, Division 2 of the Health and Safety Code, or any community board and care facility.
(h)Nothing in this section shall preclude a defendant from filing a petition for habeas corpus to challenge the continuing validity of an order authorizing a treatment facility or outpatient program to involuntarily administer antipsychotic medication to a person being treated as incompetent to stand trial.
(a)(1)(A)If the defendant is found mentally competent, the criminal process shall resume, the trial on the offense charged or hearing on the alleged violation shall proceed, and judgment may be pronounced.
(B)If the defendant is found mentally incompetent, the trial, the hearing on the alleged violation, or the judgment shall be suspended until the person becomes mentally competent.
(i)In the meantime, the court shall order that the mentally incompetent defendant be delivered by the sheriff to a state hospital for the care and treatment of the mentally disordered, as directed by the State Department of State Hospitals, or to any other available public or private treatment facility, including a local county jail treatment facility or the community-based residential treatment system established pursuant to Article 1 (commencing with Section 5670) of Chapter 2.5 of Part 2 of Division 5 of the Welfare and Institutions Code if the facility has a secured perimeter or a locked and controlled treatment facility, approved by the community program director that will promote the defendants speedy restoration to mental competence, or placed on outpatient status as specified in Section 1600.
(ii)However, if the action against the defendant who has been found mentally incompetent is on a complaint charging a felony offense specified in Section 290, the prosecutor shall determine whether the defendant previously has been found mentally incompetent to stand trial pursuant to this chapter on a charge of a Section 290 offense, or whether the defendant is currently the subject of a pending Section 1368 proceeding arising out of a charge of a Section 290 offense. If either determination is made, the prosecutor shall so notify the court and defendant in writing. After this notification, and opportunity for hearing, the court shall order that the defendant be delivered by the sheriff to a state hospital, as directed by the State Department of State Hospitals, or other secure treatment facility for the care and treatment of the mentally disordered unless the court makes specific findings on the record that an alternative placement would provide more appropriate treatment for the defendant and would not pose a danger to the health and safety of others.
(iii)If the action against the defendant who has been found mentally incompetent is on a complaint charging a felony offense specified in Section 290 and the defendant has been denied bail pursuant to subdivision (b) of Section 12 of Article I of the California Constitution because the court has found, based upon clear and convincing evidence, a substantial likelihood that the persons release would result in great bodily harm to others, the court shall order that the defendant be delivered by the sheriff to a state hospital for the care and treatment of the mentally disordered, as directed by the State Department of State Hospitals, unless the court makes specific findings on the record that an alternative placement would provide more appropriate treatment for the defendant and would not pose a danger to the health and safety of others.
(iv)The clerk of the court shall notify the Department of Justice in writing of any a finding of mental incompetence with respect to a defendant who is subject to clause (ii) or (iii) for inclusion in his or her state summary criminal history information.
(C)Upon the filing of a certificate of restoration to competence, the court shall order that the defendant be returned to court in accordance with Section 1372. The court shall transmit a copy of its order to the community program director or a designee.
(D)A defendant charged with a violent felony may not be delivered to a state hospital or treatment facility pursuant to this subdivision unless the state hospital or treatment facility has a secured perimeter or a locked and controlled treatment facility, and the judge determines that the public safety will be protected.
(E)For purposes of this paragraph, violent felony means an offense specified in subdivision (c) of Section 667.5.
(F)A defendant charged with a violent felony may be placed on outpatient status, as specified in Section 1600, only if the court finds that the placement will not pose a danger to the health or safety of others. If the court places a defendant charged with a violent felony on outpatient status, as specified in Section 1600, the court shall serve copies of the placement order on defense counsel, the sheriff in the county where the defendant will be placed, and the district attorney for the county in which the violent felony charges are pending against the defendant.
(2)Prior to making the order directing that the defendant be committed to the State Department of State Hospitals or other treatment facility or placed on outpatient status, the court shall proceed as follows:
(A)The court shall order the community program director or a designee to evaluate the defendant and to submit to the court within 15 judicial days of the order a written recommendation as to whether the defendant should be required to undergo outpatient treatment, or be committed to the State Department of State Hospitals or to any other treatment facility. A person shall not be admitted to a state hospital or other treatment facility or placed on outpatient status under this section without having been evaluated by the community program director or a designee. The community program director or designee shall evaluate the appropriate placement for the defendant between the State Department of State Hospitals, a local county jail treatment facility, or the community-based residential treatment system based upon guidelines provided by the State Department of State Hospitals. If a local county jail treatment facility is selected, the State Department of State Hospitals shall provide treatment at the county jail treatment facility and reimburse the county jail treatment facility for the reasonable costs of the bed during the treatment. If the community-based residential treatment system is selected, the State Department of State Hospitals shall provide reimbursement to the community-based residential treatment system for the cost of treatment as negotiated with the State Department of State Hospitals. The six-month limitation in Section 1369.1 shall not apply to individuals deemed incompetent to stand trial who are being treated to restore competency within a county jail treatment facility pursuant to this section.
(B)The court shall hear and determine whether the defendant lacks capacity to make decisions regarding the administration of antipsychotic medication. The court shall consider opinions in the reports prepared pursuant to subdivision (a) of Section 1369, as applicable to the issue of whether the defendant lacks capacity to make decisions regarding the administration of antipsychotic medication, and shall proceed as follows:
(i)The court shall hear and determine whether any of the following is true:
(I)The defendant lacks capacity to make decisions regarding antipsychotic medication, the defendants mental disorder requires medical treatment with antipsychotic medication, and, if the defendants mental disorder is not treated with antipsychotic medication, it is probable that serious harm to the physical or mental health of the patient will result. Probability of serious harm to the physical or mental health of the defendant requires evidence that the defendant is presently suffering adverse effects to his or her physical or mental health, or the defendant has previously suffered these effects as a result of a mental disorder and his or her condition is substantially deteriorating. The fact that a defendant has a diagnosis of a mental disorder does not alone establish probability of serious harm to the physical or mental health of the defendant.
(II)The defendant is a danger to others, in that the defendant has inflicted, attempted to inflict, or made a serious threat of inflicting substantial physical harm on another while in custody, or the defendant had inflicted, attempted to inflict, or made a serious threat of inflicting substantial physical harm on another that resulted in his or her being taken into custody, and the defendant presents, as a result of mental disorder or mental defect, a demonstrated danger of inflicting substantial physical harm on others. Demonstrated danger may be based on an assessment of the defendants present mental condition, including a consideration of past behavior of the defendant within six years prior to the time the defendant last attempted to inflict, inflicted, or threatened to inflict substantial physical harm on another, and other relevant evidence.
(III)The people have charged the defendant with a serious crime against the person or property, involuntary administration of antipsychotic medication is substantially likely to render the defendant competent to stand trial, the medication is unlikely to have side effects that interfere with the defendants ability to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a reasonable manner, less intrusive treatments are unlikely to have substantially the same results, and antipsychotic medication is in the patients best medical interest in light of his or her medical condition.
(ii)If the court finds any of the conditions described in clause (i) to be true, the court shall issue an order authorizing involuntary administration of antipsychotic medication to the defendant when and as prescribed by the defendants treating psychiatrist at any facility housing the defendant for purposes of this chapter. The order shall be valid for no more than one year, pursuant to subparagraph (A) of paragraph (7). The court shall not order involuntary administration of psychotropic medication under subclause (III) of clause (i) unless the court has first found that the defendant does not meet the criteria for involuntary administration of psychotropic medication under subclause (I) of clause (i) and does not meet the criteria under subclause (II) of clause (i).
(iii)In all cases, the treating hospital, facility, or program may administer medically appropriate antipsychotic medication prescribed by a psychiatrist in an emergency as described in subdivision (m) of Section 5008 of the Welfare and Institutions Code.
(iv)If the court has determined that the defendant has the capacity to make decisions regarding antipsychotic medication, and if the defendant, with advice of his or her counsel, consents, the court order of commitment shall include confirmation that antipsychotic medication may be given to the defendant as prescribed by a treating psychiatrist pursuant to the defendants consent. The commitment order shall also indicate that, if the defendant withdraws consent for antipsychotic medication, after the treating psychiatrist complies with the provisions of subparagraph (C), the defendant shall be returned to court for a hearing in accordance with subparagraphs (C) and (D) regarding whether antipsychotic medication shall be administered involuntarily.
(v)If the court has determined that the defendant has the capacity to make decisions regarding antipsychotic medication and if the defendant, with advice from his or her counsel, does not consent, the court order for commitment shall indicate that, after the treating psychiatrist complies with the provisions of subparagraph (C), the defendant shall be returned to court for a hearing in accordance with subparagraphs (C) and (D) regarding whether antipsychotic medication shall be administered involuntarily.
(vi)Any A report made pursuant to paragraph (1) of subdivision (b) shall include a description of any antipsychotic medication administered to the defendant and its effects and side effects, including effects on the defendants appearance or behavior that would affect the defendants ability to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a reasonable manner. During the time the defendant is confined in a state hospital or other treatment facility or placed on outpatient status, either the defendant or the people may request that the court review any order made pursuant to this subdivision. The defendant, to the same extent enjoyed by other patients in the state hospital or other treatment facility, shall have the right to contact the patients rights advocate regarding his or her rights under this section.
(C)If the defendant consented to antipsychotic medication as described in clause (iv) of subparagraph (B), but subsequently withdraws his or her consent, or, if involuntary antipsychotic medication was not ordered pursuant to clause (v) of subparagraph (B), and the treating psychiatrist a psychiatrist designated by the facilitys medical director determines that antipsychotic medication has become medically necessary and appropriate, the treating psychiatrist designated by the facilitys medical director shall make efforts to obtain informed consent from the defendant for antipsychotic medication. If informed consent is not obtained from the defendant, and the treating psychiatrist designated by the facilitys medical director is of the opinion that the defendant lacks capacity to make decisions regarding antipsychotic medication based on the conditions described in subclause (I) or (II) of clause (i) of subparagraph (B), the treating psychiatrist designated by the facilitys medical director shall certify whether the lack of capacity and any applicable conditions described above exist. That certification shall contain an assessment of the current mental status of the defendant and the opinion of the treating psychiatrist designated by the facilitys medical director that involuntary antipsychotic medication has become medically necessary and appropriate.
(D)(i)If the treating psychiatrist designated by the facilitys medical director certifies that antipsychotic medication has become medically necessary and appropriate pursuant to subparagraph (C), antipsychotic medication may be administered to the defendant for not more than 21 days, provided, however, that, within 72 hours of the certification, the defendant is provided a medication review hearing before an administrative law judge to be conducted at the facility where the defendant is receiving treatment. The treating psychiatrist designated by the facilitys medical director shall present the case for the certification for involuntary treatment and the defendant shall be represented by an attorney or a patients rights advocate. The attorney or patients rights advocate shall be appointed to meet with the defendant no later than one day prior to the medication review hearing to review the defendants rights at the medication review hearing, discuss the process, answer questions or concerns regarding involuntary medication or the hearing, assist the defendant in preparing for the hearing and advocating for his or her interests at the hearing, review the panels final determination following the hearing, advise the defendant of his or her right to judicial review of the panels decision, and provide the defendant with referral information for legal advice on the subject. The defendant shall also have the following rights with respect to the medication review hearing:
(I)To be given timely access to the defendants records.
(II) To be present at the hearing, unless the defendant waives that right.
(III)To present evidence at the hearing.
(IV)To question persons presenting evidence supporting involuntary medication.
(V)To make reasonable requests for attendance of witnesses on the defendants behalf.
(VI)To a hearing conducted in an impartial and informal manner.
(ii)If the administrative law judge determines that the defendant either meets the criteria specified in subclause (I) of clause (i) of subparagraph (B), or meets the criteria specified in subclause (II) of clause (i) of subparagraph (B), then antipsychotic medication may continue to be administered to the defendant for the 21-day certification period. Concurrently with the treating psychiatrists certification, the treating psychiatrist shall file a copy of the certification and a petition with the court for issuance of an order to administer antipsychotic medication beyond the 21-day certification period. For purposes of this subparagraph, the treating psychiatrist shall not be required to pay or deposit any fee for the filing of the petition or other document or paper related to the petition.
(iii)If the administrative law judge disagrees with the certification, medication may not be administered involuntarily until the court determines that antipsychotic medication should be administered pursuant to this section.
(iv)The court shall provide notice to the prosecuting attorney and to the attorney representing the defendant, and shall hold a hearing, no later than 18 days from the date of the certification, to determine whether antipsychotic medication should be ordered beyond the certification period.
(v)If, as a result of the hearing, the court determines that antipsychotic medication should be administered beyond the certification period, the court shall issue an order authorizing the administration of that medication.
(vi)The court shall render its decision on the petition and issue its order no later than three calendar days after the hearing and, in any event, no later than the expiration of the 21-day certification period.
(vii)If the administrative law judge upholds the certification pursuant to clause (ii), the court may, for a period not to exceed 14 days, extend the certification and continue the hearing pursuant to stipulation between the parties or upon a finding of good cause. In determining good cause, the court may review the petition filed with the court, the administrative law judges order, and any additional testimony needed by the court to determine if it is appropriate to continue medication beyond the 21-day certification and for a period of up to 14 days.
(viii)The district attorney, county counsel, or representative of any a facility where a defendant found incompetent to stand trial is committed may petition the court for an order to administer involuntary medication pursuant to the criteria set forth in subclauses (II) and (III) of clause (i) of subparagraph (B). The order is reviewable as provided in paragraph (7).
(3)When the court orders that the defendant be committed to the State Department of State Hospitals or other public or private treatment facility, the court shall provide copies of the following documents prior to the admission of the defendant to the State Department of State Hospitals or other treatment facility where the defendant is to be committed:
(A)The commitment order, including a specification of the charges.
(B)A computation or statement setting forth the maximum term of commitment in accordance with subdivision (c).
(C)A computation or statement setting forth the amount of credit for time served, if any, to be deducted from the maximum term of commitment.
(D)State summary criminal history information.
(E)Any arrest Arrest reports prepared by the police department or other law enforcement agency.
(F)Any court-ordered Court-ordered psychiatric examination or evaluation reports.
(G)The community program directors placement recommendation report.
(H)Records of any a finding of mental incompetence pursuant to this chapter arising out of a complaint charging a felony offense specified in Section 290 or any a pending Section 1368 proceeding arising out of a charge of a Section 290 offense.
(I)Any medical Medical records.
(4)When the defendant is committed to a treatment facility pursuant to clause (i) of subparagraph (B) of paragraph (1) or the court makes the findings specified in clause (ii) or (iii) of subparagraph (B) of paragraph (1) to assign the defendant to a treatment facility other than a state hospital or other secure treatment facility, the court shall order that notice be given to the appropriate law enforcement agency or agencies having local jurisdiction at the site of the placement facility of any finding of mental incompetence pursuant to this chapter arising out of a charge of a Section 290 offense.
(5)When directing that the defendant be confined in a state hospital pursuant to this subdivision, the court shall commit the patient to the State Department of State Hospitals.
(6)(A)If the defendant is committed or transferred to the State Department of State Hospitals pursuant to this section, the court may, upon receiving the written recommendation of the medical director of the state hospital and the community program director that the defendant be transferred to a public or private treatment facility approved by the community program director, order the defendant transferred to that facility. If the defendant is committed or transferred to a public or private treatment facility approved by the community program director, the court may, upon receiving the written recommendation of the community program director, transfer the defendant to the State Department of State Hospitals or to another public or private treatment facility approved by the community program director. In the event of dismissal of the criminal charges before the defendant recovers competence, the person shall be subject to the applicable provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code). If either the defendant or the prosecutor chooses to contest either kind of order of transfer, a petition may be filed in the court for a hearing, which shall be held if the court determines that sufficient grounds exist. At the hearing, the prosecuting attorney or the defendant may present evidence bearing on the order of transfer. The court shall use the same standards as are used in conducting probation revocation hearings pursuant to Section 1203.2.
Prior to making an order for transfer under this section, the court shall notify the defendant, the attorney of record for the defendant, the prosecuting attorney, and the community program director or a designee.
(B)If the defendant is initially committed to the State Department of State Hospitals or secure treatment facility pursuant to clause (ii) or (iii) of subparagraph (B) of paragraph (1) and is subsequently transferred to any other facility, copies of the documents specified in paragraph (3) shall be taken with the defendant to each subsequent facility to which the defendant is transferred. The transferring facility shall also notify the appropriate law enforcement agency or agencies having local jurisdiction at the site of the new facility that the defendant is a person subject to clause (ii) or (iii) of subparagraph (B) of paragraph (1).
(7)(A)An order by the court authorizing involuntary medication of the defendant shall be valid for no more than one year. The court shall review the order at the time of the review of the initial report and the six-month progress reports pursuant to paragraph (1) of subdivision (b) to determine if the grounds for the authorization remain. In the review, the court shall consider the reports of the treating psychiatrist or psychiatrists and the defendants patients rights advocate or attorney. The court may require testimony from the treating psychiatrist or psychiatristsdesignated by the facilitys medical director and the patients rights advocate or attorney, if necessary. The court may continue the order authorizing involuntary medication for up to another six months, or vacate the order, or make any other appropriate order.
(B)Within 60 days before the expiration of the one-year involuntary medication order, the district attorney, county counsel, or representative of any facility where a defendant found incompetent to stand trial is committed may petition the committing court for a renewal, subject to the same conditions and requirements as in subparagraph (A). The petition shall include the basis for involuntary medication set forth in clause (i) of subparagraph (B) of paragraph (2). Notice of the petition shall be provided to the defendant, the defendants attorney, and the district attorney. The court shall hear and determine whether the defendant continues to meet the criteria set forth in clause (i) of subparagraph (B) of paragraph (2). The hearing on any petition to renew an order for involuntary medication shall be conducted prior to the expiration of the current order.
(b)(1)Within 90 days of a commitment made pursuant to subdivision (a), the medical director of the state hospital or other treatment facility to which the defendant is confined shall make a written report to the court and the community program director for the county or region of commitment, or a designee, concerning the defendants progress toward recovery of mental competence and whether the administration of antipsychotic medication remains necessary. If the defendant is on outpatient status, the outpatient treatment staff shall make a written report to the community program director concerning the defendants progress toward recovery of mental competence. Within 90 days of placement on outpatient status, the community program director shall report to the court on this matter. If the defendant has not recovered mental competence, but the report discloses a substantial likelihood that the defendant will regain mental competence in the foreseeable future, the defendant shall remain in the state hospital or other treatment facility or on outpatient status. Thereafter, at six-month intervals or until the defendant becomes mentally competent, if the defendant is confined in a treatment facility, the medical director of the hospital or person in charge of the facility shall report in writing to the court and the community program director or a designee regarding the defendants progress toward recovery of mental competence and whether the administration of antipsychotic medication remains necessary. If the defendant is on outpatient status, after the initial 90-day report, the outpatient treatment staff shall report to the community program director on the defendants progress toward recovery, and the community program director shall report to the court on this matter at six-month intervals. A copy of these reports shall be provided to the prosecutor and defense counsel by the court.
(A)If the report indicates that there is no substantial likelihood that the defendant will regain mental competence in the foreseeable future, the committing court shall order the defendant to be returned to the court for proceedings pursuant to paragraph (2) of subdivision (c) no later than 10 days following receipt of the report. The court shall transmit a copy of its order to the community program director or a designee.
(B)If the report indicates that there is no substantial likelihood that the defendant will regain mental competence in the foreseeable future, the medical director of the state hospital or other treatment facility to which the defendant is confined shall do both of the following:
(i)Promptly notify and provide a copy of the report to the defense counsel and the district attorney.
(ii)Provide a separate notification, in compliance with applicable privacy laws, to the committing countys sheriff that transportation will be needed for the patient.
(2)If the court has issued an order authorizing the treating facility to involuntarily administer antipsychotic medication to the defendant, the reports made pursuant to paragraph (1) concerning the defendants progress toward regaining competency shall also consider the issue of involuntary medication. Each report shall include, but is not limited to, all the following:
(A)Whether or not the defendant has the capacity to make decisions concerning antipsychotic medication.
(B)If the defendant lacks capacity to make decisions concerning antipsychotic medication, whether the defendant risks serious harm to his or her physical or mental health if not treated with antipsychotic medication.
(C)Whether or not the defendant presents a danger to others if he or she is not treated with antipsychotic medication.
(D)Whether the defendant has a mental illness for which medications are the only effective treatment.
(E)Whether there are any side effects from the medication currently being experienced by the defendant that would interfere with the defendants ability to collaborate with counsel.
(F)Whether there are any effective alternatives to medication.
(G)How quickly the medication is likely to bring the defendant to competency.
(H)Whether the treatment plan includes methods other than medication to restore the defendant to competency.
(I)A statement, if applicable, that no medication is likely to restore the defendant to competency.
(3)After reviewing the reports, the court shall determine whether or not grounds for the order authorizing involuntary administration of antipsychotic medication still exist and shall do one of the following:
(A)If the original grounds for involuntary medication still exist, the order authorizing the treating facility to involuntarily administer antipsychotic medication to the defendant shall remain in effect.
(B)If the original grounds for involuntary medication no longer exist, and there is no other basis for involuntary administration of antipsychotic medication, the order for the involuntary administration of antipsychotic medication shall be vacated.
(C)If the original grounds for involuntary medication no longer exist, and the report states that there is another basis for involuntary administration of antipsychotic medication, the court shall set a hearing within 21 days to determine whether the order for the involuntary administration of antipsychotic medication shall be vacated or whether a new order for the involuntary administration of antipsychotic medication shall be issued. The hearing shall proceed as set forth in subparagraph (B) of paragraph (2) of subdivision (a).
(4)Any A defendant who has been committed or has been on outpatient status for 18 months and is still hospitalized or on outpatient status shall be returned to the committing court where a hearing shall be held pursuant to the procedures set forth in Section 1369. The court shall transmit a copy of its order to the community program director or a designee.
(5)If it is determined by the court that no treatment for the defendants mental impairment is being conducted, the defendant shall be returned to the committing court. The court shall transmit a copy of its order to the community program director or a designee.
(6)At each review by the court specified in this subdivision, the court shall determine if the security level of housing and treatment is appropriate and may make an order in accordance with its determination. If the court determines that the defendant shall continue to be treated in the state hospital or on an outpatient basis, the court shall determine issues concerning administration of antipsychotic medication, as set forth in subparagraph (B) of paragraph (2) of subdivision (a).
(c)(1)At the end of three years from the date of commitment or a period of commitment equal to the maximum term of imprisonment provided by law for the most serious offense charged in the information, indictment, or misdemeanor complaint, or the maximum term of imprisonment provided by law for a violation of probation or mandatory supervision, whichever is shorter, but no later than 90 days prior to the expiration of the defendants term of commitment, a defendant who has not recovered mental competence shall be returned to the committing court. The court shall notify the community program director or a designee of the return and of any resulting court orders.
(2)Whenever any a defendant is returned to the court pursuant to paragraph (1) or (4) of subdivision (b) or paragraph (1) of this subdivision and it appears to the court that the defendant is gravely disabled, as defined in subparagraph (B) of paragraph (1) of subdivision (h) of Section 5008 of the Welfare and Institutions Code, the court shall order the conservatorship investigator of the county of commitment of the defendant to initiate conservatorship proceedings for the defendant pursuant to Chapter 3 (commencing with Section 5350) of Part 1 of Division 5 of the Welfare and Institutions Code. Any hearings Hearings required in the conservatorship proceedings shall be held in the superior court in the county that ordered the commitment. The court shall transmit a copy of the order directing initiation of conservatorship proceedings to the community program director or a designee, the sheriff and the district attorney of the county in which criminal charges are pending, and the defendants counsel of record. The court shall notify the community program director or a designee, the sheriff and district attorney of the county in which criminal charges are pending, and the defendants counsel of record of the outcome of the conservatorship proceedings.
(3)If a change in placement is proposed for a defendant who is committed pursuant to subparagraph (B) of paragraph (1) of subdivision (h) of Section 5008 of the Welfare and Institutions Code, the court shall provide notice and an opportunity to be heard with respect to the proposed placement of the defendant to the sheriff and the district attorney of the county in which the criminal charges or revocation proceedings are pending.
(4)If the defendant is confined in a treatment facility, a copy of any report to the committing court regarding the defendants progress toward recovery of mental competence shall be provided by the committing court to the prosecutor and to the defense counsel.
(d)With the exception of proceedings alleging a violation of mandatory supervision, the criminal action remains subject to dismissal pursuant to Section 1385. If the criminal action is dismissed, the court shall transmit a copy of the order of dismissal to the community program director or a designee. In a proceeding alleging a violation of mandatory supervision, if the person is not placed under a conservatorship as described in paragraph (2) of subdivision (c), or if a conservatorship is terminated, the court shall reinstate mandatory supervision and may modify the terms and conditions of supervision to include appropriate mental health treatment or refer the matter to a local mental health court, reentry court, or other collaborative justice court available for improving the mental health of the defendant.
(e)If the criminal action against the defendant is dismissed, the defendant shall be released from any commitment ordered under this section, but without prejudice to the initiation of any proceedings that may be appropriate under the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code).
(f)As used in this chapter, community program director means the person, agency, or entity designated by the State Department of State Hospitals pursuant to Section 1605 of this code and Section 4360 of the Welfare and Institutions Code.
(g)For the purpose of this section, secure treatment facility shall not include, except for state mental hospitals, state developmental centers, and correctional treatment facilities, any facility licensed pursuant to Chapter 2 (commencing with Section 1250) of, Chapter 3 (commencing with Section 1500) of, or Chapter 3.2 (commencing with Section 1569) of, Division 2 of the Health and Safety Code, or any community board and care facility.
(h)Nothing in this section shall preclude a defendant from filing a petition for habeas corpus to challenge the continuing validity of an order authorizing a treatment facility or outpatient program to involuntarily administer antipsychotic medication to a person being treated as incompetent to stand trial.
|
Date
|
Status
|
|---|---|
| May 28, 2015 | Referred to Coms. on PUB. S. and B. & P. |
| Sep 3, 2015 | Chaptered by Secretary of State. Chapter 260, Statutes of 2015. |
| Sep 3, 2015 | Approved by the Governor. |
| Aug 28, 2015 | Enrolled and presented to the Governor at 3:45 p.m. |
| Aug 27, 2015 | Assembly amendments concurred in. (Ayes 40. Noes 0.) Ordered to engrossing and enrolling. |
| Aug 27, 2015 | Assembly amendments concurred in. (Ayes 40. Noes 0. Page 2206.) Ordered to engrossing and enrolling. |
| Aug 25, 2015 | Ordered to special consent calendar. |
| Aug 20, 2015 | Read third time. Passed. (Ayes 79. Noes 0. Page 2534.) Ordered to the Senate. |
| Aug 20, 2015 | Read third time. Passed. Ordered to the Senate. |
| Aug 20, 2015 | In Senate. Concurrence in Assembly amendments pending. |
| Jul 16, 2015 | Read second time. Ordered to consent calendar. |
| Jul 15, 2015 | From committee: Do pass. Ordered to consent calendar. (Ayes 16. Noes 0.) (July 15). |
| Jul 8, 2015 | Read second time and amended. Re-referred to Com. on APPR. |
| Jul 7, 2015 | From committee: Do pass as amended and re-refer to Com. on APPR. (Ayes 14. Noes 0.) (July 7). |
| Jun 23, 2015 | Read second time and amended. Re-referred to Com. on B. & P. |
| Jun 22, 2015 | From committee: Do pass as amended and re-refer to Com. on B. & P. with recommendation: To consent calendar. (Ayes 7. Noes 0.) (June 16). |
| Feb 25, 2015 | Introduced. Read first time. To Com. on RLS. for assignment. To print. |
| May 18, 2015 | Read third time. Passed. (Ayes 36. Noes 0.) Ordered to the Assembly. |
| May 18, 2015 | Read third time. Passed. (Ayes 36. Noes 0. Page 1021.) Ordered to the Assembly. |
| May 18, 2015 | In Assembly. Read first time. Held at Desk. |
| May 12, 2015 | Read second time. Ordered to third reading. |
| May 11, 2015 | From committee: Be ordered to second reading pursuant to Senate Rule 28.8. |
| May 1, 2015 | Set for hearing May 11. |
| Apr 28, 2015 | Read second time and amended. Re-referred to Com. on APPR. |
| Apr 27, 2015 | From committee: Do pass as amended and re-refer to Com. on APPR. (Ayes 7. Noes 0. Page 730.) (April 21). |
| Apr 7, 2015 | Set for hearing April 21. |
| Apr 6, 2015 | From committee with author's amendments. Read second time and amended. Re-referred to Com. on PUB. S. |
| Apr 1, 2015 | April 7 hearing postponed by committee. |
| Mar 10, 2015 | Set for hearing April 7. |
| Mar 5, 2015 | Referred to Com. on PUB. S. |
| Feb 26, 2015 | From printer. May be acted upon on or after March 28. |
|
Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Aug 27, 2015 | Special Consent #7 SB453 Pan | Senate Floor |
Passed |
|
| Aug 20, 2015 | SB 453 Pan Consent Calendar Second Day Regular Session | Assembly Floor |
Passed |
|
| Jul 15, 2015 | Do pass. To Consent Calendar. | Assembly Standing Committee on Appropriations |
Passed |
|
| Jul 7, 2015 | Do pass as amended and be re-referred to the Committee on [Appropriations] | Assembly Standing Committee on Business and Professions |
Passed |
|
| Jun 16, 2015 | Do pass as amended, and be re-referred to the Committee on [Business and Professions] with recommendation: To Consent Calendar | Assembly Standing Committee on Public Safety |
Passed |
|
| May 18, 2015 | Senate 3rd Reading SB453 Pan | Senate Floor |
Passed |
|
| Apr 21, 2015 | Do pass as amended, but first amend, and re-refer to the Committee on [Appropriations] | Senate Standing Committee on Public Safety |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
|
Organization
|
Position
|
Date
|
|---|---|---|
| AFSCME | * Support | Jul 7, 2015 |
| Association of Psychiatric Technicians | * Indeterminate | Apr 22, 2015 |
| California Psychiatric Association | * Indeterminate | Apr 22, 2015 |
| California Public Defenders Association | * Indeterminate | Apr 22, 2015 |
| Legal Services for Prisoners with Children | ** Against | May 18, 2015 |
| Union Of American Physicians And Dentists | ** Support | Jul 7, 2015 |
SB 453
Page 5
|
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 |
UNFINISHED BUSINESS
Bill No: SB 453
Amended: 7/8/15
SENATE PUBLIC SAFETY COMMITTEE: 7-0, 4/21/15
AYES: Hancock, Anderson, Leno, Liu, McGuire, Monning, Stone
SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8
SENATE FLOOR: 36-0, 5/18/15
AYES: Allen, Anderson, Bates, Beall, Block, Cannella, De León, Fuller, Gaines, Galgiani, Hancock, Hernandez, Hertzberg, Hill, Hueso, Huff, Jackson, Lara, Leno, Leyva, Liu, McGuire, Mendoza, Mitchell, Monning, Moorlach, Morrell, Nguyen, Nielsen, Pan, Roth, Runner, Stone, Vidak, Wieckowski, Wolk
NO VOTE RECORDED: Berryhill, Hall, Pavley
ASSEMBLY FLOOR: 79-0, 8/20/15 (Consent) - See last page for vote
SUBJECT: Prisons: involuntary medication
SOURCE: Union of American Physicians and Dentists
DIGEST: This bill 1) provides that where the treating psychiatrist of a person who is incompetent to stand trial concludes, based on the need to maintain the doctor-patient relationship or prevent harm that another psychiatrist should be designated to seek an order for involuntary medication, the facility director may make such a designation; 2) requires the treating psychiatrist to brief the designated psychiatrist about the case; and 3) requires the designated prescribing psychiatrist to examine the person as to whom the involuntary medication order is sought.
Assembly Amendments make technical changes to ensure that the provisions of the bill apply to the correct statutory provisions.
Existing law:
States that a person cannot be tried or adjudged to punishment while he or she is mentally incompetent (IST – incompetent to stand trial). A defendant is IST where he or she has a mental disorder or developmental disability that renders him or her unable to understand the nature of the criminal proceedings or assist counsel in his or her defense. (Pen. Code § 1367, subd. (a).)
States that if the court has a doubt as to whether or not a defendant is IST, the matter then proceeds as follows:
The court shall appoint a psychiatrist or psychologist to examine the defendant.
If the defendant objects to an IST finding, the court shall appoint two psychiatrists or psychologists.
The examining expert or experts shall evaluate the defendant’s mental disorder, ability to understand the proceedings or assist counsel in his or her a defense, and opine whether medications are medically appropriate and likely to restore the defendant to competency. (Pen. Code § 1369.)
States that prior to committing an IST defendant for treatment, the court shall determine whether the defendant consents to the administration of antipsychotic medications. (Pen. Code § 1370, subd. (a)(2)(B).)
If the defendant consents, the commitment order shall confirm that medication may be given to the defendant.
If the defendant does not consent to the administration of medication, the court shall hear and determine whether any of the following is true:
Serious harm to the physical or mental health of the patient will result.
The defendant is a danger to others.
The defendant has been charged with a serious crime; involuntary administration of anti-psychotic medication is likely to render the defendant competent; the medication is unlikely to interfere with the defendant’s defense and less intrusive treatments are ineffective. (Pen. Code § 1370, subd. (a)(2)(B)(ii)(I)-(III).); or,
If any of these grounds are true, the court shall authorize the treatment facility to involuntarily administer anti-psychotic medication to the defendant when and as prescribed by the defendant’s treating psychiatrist. (Pen. Code § 1370, subd. (a)(2)(B)(iii).)
Provides that where an IST in treatment withdraws consent for administration of medication, or if involuntary medication was not ordered upon commitment, and the treating psychiatrist believes that grounds for involuntary medication exist, the following shall occur:
The treating psychiatrist may issue a certificate for administration of medication for up to 21 days, until a hearing before a court can be held.
The IST defendant shall have the right to a medication review hearing before an administrative law judge (ALJ) within 72 hours.If the ALJ agrees that grounds for involuntary administration of medication exist, the involuntary medication may continue until a court hearing on the issue can be held.
If the ALJ finds that grounds for involuntary administration of medication have not been established, medication may not be involuntarily administered until a court decides the issue. (Pen. Code § 1370, subd. (a)(2)(C)-(D).)
Provides that if the ALJ upholds the certification by the treating psychiatrist for involuntary medication of the defendant for 21 days, the psychiatrist shall file with the court a copy of the certification and a petition for an order authorizing involuntary medications:
The court shall provide notice to the prosecutor and counsel for the defendant of the pending hearing.
The court shall hold the hearing within 18 days of the certification and determine if a formal order for involuntary medication should be made.
The court shall issue a decision within three calendar days, but within the 21-day certification period. (Pen. Code § 1370, subd. (a)(2)(D).)
Provides that an order for involuntary medication shall remain valid at any facility housing the defendant for purposes of return to competency and resumption of criminal proceedings, if the medication is prescribed by the defendant’s treating psychiatrist.
Provides that if an ALJ upholds the 21-day certification that antipsychotic medication has become medically necessary, the court may extend the certification and continue the hearing for no more than 14 days, upon a showing of good cause or the stipulation of the parties. (Pen. Code § 1370, subd. (a)(2)(D).)
Requires the court to review the order to administer involuntary medication at the time of the review of the initial competency report by the treating facility and at review of the six-month progress reports. (Pen. Code § 1370, subd. (a)(2)(B).)
Allows the district attorney, county counsel, or representative of any facility where a defendant found incompetent to stand trial is committed, within 60 days before the expiration of the one-year involuntary medication order, to petition the committing court for a renewal of the order, subject to specified conditions and requirements. (Pen. Code § 1370, subd. (a)(7)(B).)
This bill:
Provides that the treating psychiatrist of an IST patient may request the facility director to “designate another psychiatrist to act” in his or her place for the purposes of determining if an order for involuntary administration of antipsychotic medication should be sought. The request shall be based on the need to do one of the following:
Maintain doctor-patient rapport; or
Prevent harm;
Requires the treating psychiatrist to “brief the acting psychiatrist on the relevant facts of the case.”
Requires the designated prescribing psychiatrist to examine the patient for whom an involuntary medication order is sought.
Background
Defendants who are incompetent to stand trial are often committed to the Department of State Hospitals (DSH) subject to court order that they be involuntarily medicated with antipsychotic medication. The grounds for involuntary medication include that the defendant is gravely disabled – unable to care for oneself - or a danger to self or others. Where a defendant withdraws consent for medication, or where treating clinicians believe that the defendant needs medication, the treating clinician will seek an involuntary medication order. DSH has reported that defendants who do not want to be medicated can become upset and distrustful of a clinician who seeks a medication order. This can lead to breakdown of the patient-psychotherapist relationship and angry reactions by the defendant. DSH clinicians have reported being assaulted after testifying in medication hearings.
This bill authorizes the facility medical director to designate another psychiatrist to seek the involuntary medication order, stabilizing or improving the relationship between the defendant and the clinician and likely maintaining a more calm hospital environment. The treating clinician must brief the designated psychiatrist. As amended in the Senate Public Safety Committee, this bill requires the designated psychiatrist to examine the defendant. Requiring the prescribing psychiatrist to examine the IST defendant will reduce the chances that inappropriate medication will be prescribed to him or her. This should result in better health for the IST defendant and timely returns to competency.
FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No
According to the Assembly Appropriations Committee, there are minor absorbable costs.
Union of American Physicians and Dentists (source)
American Federation of State, County and Municipal Employees
OPPOSITION: (Verified 8/21/15)
Legal Services for Prisoners with Children
ASSEMBLY FLOOR: 79-0, 8/20/15
AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Atkins
NO VOTE RECORDED: Chu
Prepared by: Jerome McGuire / PUB. S. /
8/21/15 14:07:38
**** END ****
Date of Hearing: July 15, 2015
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Jimmy Gomez, Chair
SB 453
(Pan) – As Amended July 8, 2015
Policy Committee: |
Public Safety |
Vote: |
7 - 0 |
|
Business and Professions |
|
14 - 0 |
|
|
|
|
Urgency: No State Mandated Local Program: No Reimbursable: No
SUMMARY:
This bill authorizes a treating psychiatrist to request the appointment of an acting psychiatrist to seek an order for involuntary medication of a person who is incompetent to stand trial (IST) based on the need to maintain the doctor-patient relationship or prevent harm. Specifically, this bill:
Permits the treating psychiatrist of a person that is incompetent to stand trial, to request the facility medical director to designate another psychiatrist to act in the place of the treating psychiatrist, if the treating psychiatrist determines there is a need to preserve his or her rapport with the patient or prevent harm.
Specifies that if the medical director of the facility designates another psychiatrist to act in the place of the treating psychiatrist, the treating psychiatrist is required to brief the acting psychiatrist on the relevant facts of the case and the acting psychiatrist must examine the patient prior to the hearing.
FISCAL EFFECT:
Minor absorbable cost.
COMMENTS:
Background. According to the author, "In May 2013 and July 2014, it became more apparent that DSH psychiatrists were being assaulted or seriously injured following their testimony in involuntary medication hearings. With SB 453, we are ensuring worker safety without compromising access to needed medications.”
Staff members at DSH facilities have become increasingly concerned about safety in recent years, as the proportion of patients committed from the criminal justice system has risen to over 90%. It appears that this bill is intended to reduce retributive acts against treating psychiatrists by patients who object to involuntary administration of antipsychotic medication.
This bill seeks
to authorize a non-treating psychiatrist to testify at hearings
seeking an involuntary medication order, reducing the friction or
conflict between the treating doctor and a patient who does not want
to be medicated.
Analysis Prepared by: Pedro Reyes / APPR. / (916) 319-2081
SB 453
Page 5
Date of Hearing: July 7, 2015
ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS
Susan Bonilla, Chair
SB 453
(Pan) – As Amended June 23, 2015
NOTE: This bill is double referred, having previously been heard by the Assembly Public Safety Committee on June 16, 2015, and approved on a 7-0 vote.
SENATE VOTE: 36-0
SUBJECT: Prisons: involuntary medication.
SUMMARY: Authorizes a treating psychiatrist to request the appointment of an acting psychiatrist to seek an order for involuntary medication of a person, as specified, in order to preserve the treating psychiatrist’s rapport with the patient or to prevent harm.
EXISTING LAW:
Prohibits a person from being tried, or adjudged to punishment or have his or her probation, mandatory supervision, postrelease community supervision, or parole revoked while that person is mentally incompetent, as specified. (Penal Code (PC) Section 1367(a))
Specifies that if during the pendency of an action and prior to judgment, or during revocation proceedings for a violation of probation, mandatory supervision, postrelease community supervision, or parole, a doubt arises in the mind of the judge as to the mental competence of the defendant, the judge must state that doubt in the record and inquire of the attorney for the defendant whether, in the opinion of the attorney, the defendant is mentally competent, as specified and states that if counsel informs the court that he or she believes the defendant is or may maybe mentally competent, the court will determine the defendants mental competence at a hearing. (PC Section 1368(a)(b))
Requires a trial by court or jury, of the question of mental competence, to proceed as follows: (PC Section 1369(a-d))
The court must appoint a psychiatrist or licensed psychologist, and any other expert the court may deem appropriate to examine defendant;
The counsel for the defendant must offer evidence in support of the allegation of mental competence and if the defense declines to offer any evidence in support of the allegation of mental incompetence, the prosecution may do so;
The prosecution must present its case regarding the issue of the defendant’s present mental competence; and,
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.
Specifies that if the defendant is found mentally competent the criminal process must resume, as specified. (PC Section 1370(a)(1)(A))
States that if the defendant is found mentally incompetent, the trial, the hearing on the alleged violation, or the judgment must be suspended until the person becomes mentally competent. (PC Section 1370(a)(1)(B))
Requires the court to order that the mentally incompetent defendant be delivered by the sheriff to a state hospital for the care and treatment of the mentally disordered, as directed by the State Department of State Hospitals, or to any other available public or private treatment facility, including a local county jail treatment facility or the community-based residential treatment system, as specified, if the facility has a secured perimeter or a locked and controlled treatment facility, approved by the community program director that will promote the defendant’s speedy restoration to mental competence or placed on outpatient status, as specified. (PC Section 1370(a)(1)(B(i))
States that an incompetent defendant charged with a violent may not be delivered to a state hospital or treatment facility unless the state hospital or treatment facility has a secured perimeter or a locked and controlled treatment facility, and the judge determines that the public safety will be protected. (PC Section 1370(a)(1)(D))
Specifies that an order by the court authorizing involuntary medication of a defendant is valid for one year and the court is required to review the order at the time of the review of the initial report and the sixth-month progress report to determine if the grounds for the authorization remain. (PC Section (a)(7)(A)
Establishes the Medical Practice Act, administered by the Medical Board of California (MBC) within the DCA, to license and regulate the practice of medicine. (Business and Professions Code (BPC) Section 2000, et seq.)
Establishes the Osteopathic Medical Practice Act, administered by the Osteopathic Medical Board of California within the DCA to license and regulate osteopathic physicians and surgeons. (BPC Section 2450, et seq.)
THIS BILL:
Permits the treating psychiatrist of a person that is incompetent to stand trial, to request the facility medical director to designate another psychiatrist to act in the place of the treating psychiatrist, if the treating psychiatrist determines there is a need to preserve his or her rapport with the patient or prevent harm.
Specifies that if the medical director of the facility designates another psychiatrist to act in the place of the treating psychiatrist, the treating psychiatrist is required to brief the acting psychiatrist on the relevant facts of the case and the acting psychiatrist must examine the patient prior to the hearing.
Makes other minor clarifying amendments.
FISCAL EFFECT: According to Senate Appropriations Committee, pursuant to Senate Rule 28.8, this bill will result in negligible state costs.
COMMENTS:
Purpose. This bill is sponsored by the Union of American Physicians and Dentists. According to the author, “…in May 2013 and July 2014, it became more apparent that Department of State Hospitals psychiatrists were being assaulted or seriously injured following their testimony in involuntary medication hearings. With [this bill] we are ensuring worker safety without compromising access to needed medications.”
Background. Currently, psychiatrists are employed at state hospitals to provide mental health services to those patients admitted to state hospitals. The author provides that recent incidents have occurred in a state hospital facility where patients have caused harm to their treating psychiatrist as a result of their testimony at involuntary medication hearings. This bill will permit a psychiatrist who is treating a patient, who is subject to an involuntary medication order, to request a non-treating psychiatrist who is employed by the state hospital to testify and certify an involuntary medication order. The desired outcome of authorizing a non-treating psychiatrist to provide the relevant testimony as requested by a treating psychiatrist is to maintain the patient/psychiatrist relationship and to prevent harm to the treating psychiatrist.
Administration of Involuntary Medication. If a defendant is found to be mentally incompetent, the trial or judgment is suspended until the defendant becomes mentally competent. In the meantime, the court is required to send the mentally incompetent patient to a state hospital for care and treatment of the mental condition, or to another locked and secure treatment facility, as specified. If a court has not issued an order for involuntary medication, the defendant's treating psychiatrist can seek an order for the involuntary administration of antipsychotic medication. Prior to the administration of such medication, the treating psychiatrist is required to attempt to gain consent from the defendant for the medication. However, if the treating psychiatrist is unable to secure informed consent from the defendant, the treating psychiatrist is permitted to place an involuntary medication order on the defendant to require him or her to take his or her medications. If a treating psychiatrist determines that an involuntary medication order is necessary, the medication may only be provided to the patient for not more than 21 days provided that, within 72 hours of the certification, the defendant is provided with a medication review hearing conducted by an administrative law judge at the facility where the defendant is receiving treatment. In this instance, the treating psychiatrist is required to present the case for certification of the involuntary treatment. A separate hearing is required if the medication order is extended beyond the 21 days.
This bill would specifically authorize the treating psychiatrist to request the facility medical director to designate another psychiatrist to act in the place of the treating psychiatrist during the hearing, if the treating psychiatrist determines there is a need, based on preserving his or her rapport with the patient or for preventing harm. In addition, this bill specifies that if the medical director designates another psychiatrist, the treating psychiatrist must brief the acting psychiatrist on the relevant facts of the case, and the acting psychiatrist must examine the patient prior to the hearing. The intent of this provision is to help the treating psychiatrist maintain his or her relationship with his or her patient and additionally prevent to harm to the treating psychiatrist.
Department of State Hospitals. The California Department of State Hospitals is responsible for providing the mental health care for patients admitted to state hospitals. Currently in California there are 9 state hospitals located throughout the state.
According to the Department of State Hospitals, patients are mandated for treatment by a criminal or civil court judge. The majority of the state hospitals' patients include those patients who were sent to a state hospital through the criminal court system and have committed or have been accused of committing a crime linked to their mental illness. In addition to forensic commitments, state hospitals treat patients who have been classified as Sexually Violent Predators. The remainder of the department’s population has been committed in civil court because they are a danger to themselves or others. This bill will require the facility medical director, at the state hospital where the individual is located, to designate the psychiatrist who will act on behalf of the treating psychiatrist.
Medical Board and the Osteopathic Medical Board. Psychiatrists employed at the Department of State Hospitals are licensed health care practitioners who must hold a license to practice from the Medical Board of California (MBC) or the Osteopathic Medical Board (OMB). The MBC is the regulatory entity responsible for regulating physician and surgeons and a number of other allied health professionals. The jurisdiction of the MBC includes issuing licenses and certificates, the administration and hearing of disciplinary actions, and carrying out disciplinary actions. The OMB is responsible for licensing Osteopathic Physicians and Surgeons in California and is responsible for investigating consumer complaints and utilizing its enforcement powers to ensure practitioners abide by the provisions of the state BPC and the medical practice acts. Psychiatrists who treat patients at state hospitals are bound to the same ethical standards as those psychiatrists in private practice and are subject to the same professional standards as identified in the BPC relative to the medical practice act and the osteopathic medical practice act. As noted by practitioners, it is common and allowable for psychiatrists to share patient information when treating patients in the same facility.
Prior Related Legislation. AB 2186 (Lowenthal), Chapter 733, Statutes of 2014, allows the representative of any facility where a defendant found incompetent to stand trial is committed, and specified others, to petition for an order to involuntarily medicate the defendant, and, upon issuance of that order, authorizes the involuntary administration of antipsychotic medication to the defendant when and as prescribed by the defendant's treating psychiatrist at any facility housing him or her for purposes of recovering mental competency; makes other related changes.
AB 366 (Allen), Chapter 654, Statutes of 2011, revised the procedures governing the involuntary administration of antipsychotic medication to state hospital patients.
ARGUMENTS IN SUPPORT:
The American Federation of State, County and Municipal Employees (AFSCME) writes in support, “[this bill] would authorize a psychiatrist designated by the faculty medical director to make the determination and certification as to whether antipsychotic medication is medically necessary and appropriate, to administer that medication to the defendant for up to 21 days, and allows the treating psychiatrist to request the medial facility to designate a new psychiatrist for the purpose of involuntary medication. AFSCME, through our affiliate the Union of American Physicians and Dentists, represents physicians in the workplace. AFSCME strongly supports [this bill] because we believe [it] is necessary to ensure the safety of DSH physicians who, at times, are threatened by individuals that are deemed medically incompetent.”
AUTHOR'S AMENDMENT:
The author has requested an amendment which will make minor, substantive changes to address a chaptering-out concern with SB 85 (Committee on Budget and Fiscal Review), Chapter 26, 2015.
ARGUMENTS IN OPPOSITION:
None on file.
REGISTERED SUPPORT:
The Union of American Physicians and Dentists (sponsor)
American Federation of State, County and Municipal Employees
REGISTERED OPPOSITION:
None on file.
Analysis Prepared by: Elissa Silva / B. & P. / (916) 319-3301
SB 453
Page 8
Date of Hearing: June 16, 2015
Counsel: David Billingsley
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Bill Quirk, Chair
SB 453
(Pan) – As Amended April 28, 2015
SUMMARY:
Allows appointment of an acting psychiatrist to seek an order for
involuntary medication of person who is incompetent to stand trial
(IST) based on the need maintain the doctor-patient relationship or
prevent harm. Specifically, this bill:
Allows the treating psychiatrist, of a person that is incompetent to stand trial, to request that the facility medical director designate another psychiatrist to act in the place of the treating psychiatrist to testify at a hearing on the involuntary administration of medication, based on a need to preserve his or her rapport with the patient, or to prevent harm.
Requires that if the medical director of the facility designates another psychiatrist to testify at a hearing on the involuntary administration of medication the treating psychiatrist shall brief the acting psychiatrist of the relevant facts of the case and the acting psychiatrist shall examine the patient prior to the hearing.
EXISTING LAW:
States that a person cannot be tried or adjudged to punishment while he or she is mentally incompetent. (Pen. Code, § 1367, subd. (a).)
Provides that a defendant is incompetent to stand trial where he or she has a mental disorder or developmental disability that renders him or her unable to understand the nature of the criminal proceedings or assist counsel in his or her defense. (Pen. Code, § 1367, subd. (a).)
Specifies that if the court has a doubt as to whether or not a defendant is IST, the court shall state that doubt on the record and shall seek defense counsel’s opinion as to the defendant’s competence. (Pen. Code, § 1368, subd. (a).) The matter then proceeds as follows:
The court shall appoint a psychiatrist or psychologist to examine the defendant. (Pen. Code, § 1369, subd. (a).)
If the defendant is not seeking a finding of mental incompetence, the court shall appoint two psychiatrists or psychologists. (Pen. Code, § 1369, subd. (a).)
The examining expert shall evaluate the nature of the defendant’s mental disorder; his or her ability to understand the proceedings or assist counsel in the conduct of a defense; and whether or not treatment with medications is medically appropriate and likely to restore the defendant to competency. (Pen. Code, § 1369, subd. (a).)
The counsel for the defendant shall offer evidence in support of the allegation of mental incompetence. (Pen. Code, § 1369, subd. (b).)
The prosecution shall present its case regarding the issue of the defendant’s present mental competence. (Pen. Code, § 1369, subd. (c).)
Each party may present rebutting testimony, unless the court, for good reason in furtherance of justice, also permits other evidence in support of the original contention. (Pen. Code, § 1369, subd. (d).)
States that if the defendant is found mentally competent, the criminal process shall resume. (Pen. Code, § 1370, subd. (a)(1)(A).)
States that if the defendant is found IST, the matter shall be suspended until the person becomes mentally competent. (Pen. Code, § 1370, subd. (a)(1)(B).)
Includes procedures for incompetency hearings, findings and orders concerning persons on mandatory supervision, post release community supervision and parole. (Pen. Code, § 1367 et seq.)
States that an incompetent defendant charged with a violent felony may not be delivered to a state hospital or treatment entity that does not have a secured perimeter or a locked and controlled treatment facility. The court must determine that public safety will be protected. (Pen. Code, § 1370, subd. (a)(1)(D).)
States that prior to committing an IST defendant for treatment, the court shall determine whether the defendant consents to the administration of antipsychotic medications. (Pen. Code, § 1370, subd. (a)(2)(B).)
If the defendant consents, the commitment order shall confirm that medication may be given to the defendant. (Pen. Code, § 1370, subd. (a)(2)(B)(iv).)
If the defendant does not consent to the administration of medication, the court shall hear and determine whether any of the following is true:
The defendant lacks capacity to make decisions regarding medication, the defendant’s mental disorder requires treatment with medication, and, if the defendant’s mental disorder is not so treated, it is probable that serious harm to the physical or mental health of the patient will result. Probability of serious harm is shown by evidence that the defendant is presently suffering adverse effects to his or her physical or mental health, or has previously suffered these effects as a result of a mental disorder and his or her condition is substantially deteriorating (Pen. Code, § 1370, subd. (a)(2)(B)(i)(I).);
The defendant is a danger to others, in that he or she has inflicted, attempted to inflict, or made a serious threat of inflicting substantial physical injury on another while in custody, or the defendant had inflicted, attempted to inflict, or made a serious threat of inflicting such harm on another, for which the defendant was taken into custody, and he or she presents, as a result of mental disorder or mental defect, a demonstrated danger of inflicting such harm on others. Demonstrated danger may be based on the defendant’s present mental condition, including a consideration of behavior within six years of the time the defendant attempted to inflict, inflicted, or threatened to inflict substantial physical harm on another, and other relevant evidence (Pen. Code § 1370, subd. (a)(2)(B)(i)(I).);
The defendant has been charged with a serious crime against a person or property; involuntary administration of anti-psychotic medication is substantially likely to render the defendant competent; the medication is unlikely to have side effects that interfere with the defendant’s ability to understand the criminal proceedings or to assist counsel in the conduct of a defense; less intrusive treatments are unlikely to have substantially the same results; and anti-psychotic medication is in the patient’s best medical interest in light of his or her medical condition. (Pen. Code § 1370, subd. (a)(2)(B)(i)(III).); or,
If the court finds any of these grounds to be true, the court shall authorize the treatment facility to involuntarily administer anti-psychotic medication to the defendant when and as prescribed by the defendant’s treating psychiatrist. (Pen. Code, § 1370, subd. (a)(2)(B)(ii).)
Provides detailed procedures for review of orders for involuntary antipsychotic medication and to determine whether a person committed as IST without a medication order should be medicated. (Pen. Code, § 1370, subd. (a)-(h).)
Provides that where an IST in treatment withdraws consent for administration of antipsychotic medication, or if involuntary medication was not ordered upon commitment, and the treating psychiatrist believes that grounds for involuntary medication exist, the following shall occur:
The treating psychiatrist may issue a certificate for administration of medication for up to 21 days, until a hearing before a court can be held. (Pen. Code, § 1370, subd. (a)(2)(D).)
The IST defendant shall have the right to a medication review hearing before an administrative law judge (ALJ) within 72 hours. (Pen. Code, § 1370, subd. (a)(2)(D).)
If the ALJ agrees that grounds for involuntary administration of medication exist, the involuntary medication may continue until a court hearing on the issue can be held. (Pen. Code, § 1370, subd. (a)(2)(D).)
If the ALJ finds that grounds for involuntary administration of medication have not been established, medication may not be involuntarily administered until a court hearing decides on the issue. (Pen. Code, § 1370, subd. (a)(2)(D).)
Provides that if the ALJ upholds the certification by the treating psychiatrist for involuntary medication of the defendant for 21 days, the psychiatrist shall file with the court a copy of the certification and a petition for an order authorizing involuntary medications:
The court shall provide notice to the prosecutor and counsel for the defendant of the pending hearing. (Pen. Code, § 1370, subd. (a)(2)(D).)
The court shall hold the hearing within 18 days of the issuance of the certification and determine if a formal order for involuntary medication should be made. (Pen. Code, § 1370, subd. (a)(2)(D).)
The court shall issue its decision within three calendar days, but no later than the expiration of the 21-day certification period. (Pen. Code, § 1370, subd. (a)(2)(D).)
The court shall hold the hearing within 18 days of the issuance of the certification and determine if a formal order for involuntary medication should be made.
The court shall issue its decision within three calendar days, but no later than the expiration of the 21-day certification period. (Pen. Code, § 1370, subd. (a)(2)(D).)
Requires the court, when determining if grounds exist for ordering involuntary administration of antipsychotic medication to an IST defendant, to consider the reports prepared by the psychiatrist or psychologist who examined the defendant for mental competency purposes, per se, if those reports are applicable to the involuntary medication issue. (Pen. Code, § 1370, subd. (a)(2)(B).)
Provides that if an administrative law judge upholds the 21-day certification by the treating psychiatrist that antipsychotic medication has become medically necessary and appropriate while the defendant is being treated, the court may extend the certification and continue the hearing for no more than 14 days, upon a showing of good cause or the stipulation of the parties. (Pen. Code, § 1370, subd. (a)(2)(D).)
Requires the court to review the order to administer involuntary medication at the time of the review of the initial competency report by the medical director of the treatment facility and at review of the six-month progress reports. (Pen. Code, § 1370, subd. (a)(2)(B).)
Allows the district attorney, county counsel, or representative of any facility where a defendant found incompetent to stand trial is committed, within 60 days before the expiration of the one-year involuntary medication order, to petition the committing court for a renewal of the order, subject to the specified conditions and requirements.
The petition shall include the basis for involuntary medication, as specified, and requires notice of the petition to be provided to the defendant, the defendant’s attorney, and the district attorney. (Pen. Code, § 1370, subd. (a)(7)(B).)
The court shall hear and determine if the defendant continues to meet the required criteria for involuntary medication and that the hearing be conducted before the expiration of the current order. (Pen. Code, § 1370, subd. (a)(7)(B).)
FISCAL EFFECT: Unknown.
COMMENTS:
Author's Statement: According to the author, "In May 2013 and July 2014, it became more apparent that DSH psychiatrists were being assaulted or seriously injured following their testimony in involuntary medication hearings. With SB 453, we are ensuring worker safety without compromising access to needed medications.”
Current Hearing Process for Administration of Involuntary Medication Where Defendant Has Capacity to Consent: If the defendant is not competent to stand trial, the court may issue an order for the involuntary administration of antipsychotic medication. Where a court has not issued an order for involuntary medication, the defendant’s treating psychiatrist can seek an order for involuntary administration of antipsychotic medication. Before administering antipsychotic medication involuntarily, the treating psychiatrist must make efforts to obtain informed consent form the defendant. If these efforts fail, the treating psychiatrist can place an Involuntary Medication (IM) order on the defendant and require him/her to take medications without his or her consent. However, a medication review hearing must be held before an administrative law judge within 72 hours. At the medication review hearing, the treating psychiatrist testifies and certifies that the antipsychotic drugs are necessary. If the administrative law judge finds that the involuntary administration of antipsychotic medication meets the legal criteria, the medication can be administered involuntarily for a period up to 21 days. A separate hearing before a superior court judge is needed to extend the involuntary medication order beyond the 21 days.
Constitutional Considerations: In Washington v. Harper, (1990) 494 U.S. 210, the U.S. Supreme Court held that a mentally-ill prisoner who is a danger to himself or others can be involuntarily medicated. Furthermore, the Court held in Riggins v. Nevada, (1992) 504 U.S. 127, that forced medication in order to render a defendant competent to stand trial for murder was constitutionally permissible. Read together, the Court has stated that these two cases "indicate that the Constitution permits the Government involuntarily to administer antipsychotic drugs to a mentally ill defendant facing serious criminal charges in order to render that defendant competent to stand trial, but only if the treatment is medically appropriate, is substantially unlikely to have side effects that may undermine the fairness of the trial, and, talking account of less intrusive alternatives, is necessary significantly to the further important governmental trial-related interests." Sell v. United States (2003) 539 U.S. 166, 179.
In Sell, the Court goes on to further specify the limited circumstances when the U.S. Constitution permits the government to administer drugs to a pretrial detainee against the detainee's will. It finds that all of the following conditions must apply:
A court must find that important governmental interests are at stake. While bringing to trial a person accused of a serious crime is an important government interest, and timely prosecution satisfies the literal aspect of this element, that alone does not satisfy the purpose as there may be special circumstances that lessen its importance in a particular case. Consequently, this analysis must be done on a case-by-case basis. Id. at 180; Carter v. Superior Court (2006) 141 Cal.App.4th 992, 1002.
A "court must conclude that involuntary medication will significantly further those concomitant state interests. It must find that administration of the drugs is substantially likely to render the defendant competent to stand trial." Sell, supra, 539 U.S. at 181.
A court must find that the administration of the drugs is "substantially unlikely" to have side effects that interfere significantly with the person's ability to assist his or her counsel in conducting a defense. Ibid.
A court must find that involuntary medication is necessary to further those interests and that alternative, less intrusive treatments are unlikely to achieve substantially the same results. Ibid.
A court must find that administering the medication is medically appropriate, that is to say, in the inmate's best medical interest in light of his or her condition. Ibid.
Balance between Patients’ Right to Due Process and the Concern Regarding Safety of Treating Psychiatrists at the Department of State Hospitals (DSH): Over the last 10 years, numerous measures have been enacted concerning defendants and supervised persons who are incompetent to stand trial or face punishment. The law must balance the interests of the state in trying and punishing offenders, protection of the rights of involuntarily committed persons and administering a treatment system for persons who may be dangerous. Much of the recent legislation has concerned involuntary administration of medication.
Staff members at DSH facilities have become increasingly concerned about safety in recent years, as the proportion of patients committed from the criminal justice system has risen to over 90%. It appears that this bill is intended to reduce retributive acts against treating psychiatrists by patients who object to involuntary administration of antipsychotic medication. This bill seeks to authorize a non-treating psychiatrist to testify at hearings seeking an involuntary medication order, reducing the friction or conflict between the treating doctor and a patient who does not want to be medicated.
The following are some of the due process concerns that are raised having non-treating physician testify at a hearing on the administration of the involuntary medication:
Whether the testifying physician has sufficient information to meaningfully inform the court about the medical issues of the patient.
Whether the testifying physician will convey the medical information about the patient accurately given that his or her testimony is not based on firsthand knowledge.
Whether a lawyer or judge can meaningfully cross-examine a testifying psychiatrist that is not the treating psychiatrist.
This bill does provide measures to help address those due process concerns. Before an acting psychiatrist can testify at a hearing on the treating psychiatrist’s patient, the treating psychiatrist would need to brief the acting psychiatrist and the acting psychiatrist would need to examine the patient. These requirements put the acting physician in position to provide pertinent information during the procedure of judicial review. Due process considerations can also be weighed by the judicial officers scrutinizing the request for involuntary medication. Both the administrative law judge and the superior court judge involved in the process have the ability to decline to authorize involuntary medication if they feel that the burden of proof was not satisfactorily met through testimony of the acting physician.
Amendments Proposed to be Taken in Committee: Proposed amendments make technical changes which clarify which portions of the statute (Pen. Code, § 1370) the bill’s language applies.
Argument in Support: According to AFSCME, “SB 453 would authorize a psychiatrist designated by the facility medical director to make the determination and certification as to whether antipsychotic medication is medically necessary and appropriate, to administer that medication to the defendant for up to 21 days, and allow the treating psychiatrist to request the medical facility to designate a new psychiatrist for the purpose of involuntary medication. AFSCME, through our affiliate the Union of American Physicians and Dentists, represents physicians in state service, including the DSH, and it is our duty to look after the safety of our physicians in the workplace. AFSCME strongly supports SB 453 because we believe it is necessary to ensure the safety of DSH physicians who, at times, are threatened by individuals that are deemed mentally incompetent.”
Prior Legislation:
AB 2186 (Lowenthal) Chapter 744, Statutes of 2014, authorized a court to extend the administrative law judge’s order authorizing involuntary medication; authorized specified individuals to petition the court for an order to administer involuntary medication; required the court to review its order authorizing involuntary medication; and provided that within 60 days of the expiration of the one-year involuntary medication order, the district attorney, county counsel, or representative of the facility where the defendant is being treated may petition the committing court for a one-year renewal.
AB 623 (Lowenthal), of the 2013-2014 Legislative Session, not heard in committee, would have provided that inmates confined in a county jail, such as pretrial detainees, are the same as inmates sentenced to county jail for the purpose of involuntarily administrating psychiatric medication.
AB 1907 (Lowenthal), Chapter 814, Statutes of 2012, provided that no individual sentenced to imprisonment in county jail for specified felonies shall be administered any psychiatric medication without his or her prior informed consent, unless specified circumstances are met. Additionally, made conforming changes to the process by which state prison inmates can be involuntarily medicated.
AB 1114 (Lowenthal), Chapter 665, Statutes of 2011, changed the procedures for involuntarily medicating state prison inmates.
AB 366 (Allen) Chapter 654, Statutes of 2011, provided procedures to allow the involuntary administration of antipsychotic medication to IST inmates with court hearing and review.
REGISTERED SUPPORT / OPPOSITION:
Support
AFSCME
Union of American Physicians and Dentists
Opposition
None
Analysis Prepared by: David Billingsley / PUB. S. / (916) 319-3744
SB 453
Page 6
|
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 |
THIRD READING
Bill No: SB 453
Amended: 4/28/15
SENATE PUBLIC SAFETY COMMITTEE: 7-0, 4/21/15
AYES: Hancock, Anderson, Leno, Liu, McGuire, Monning, Stone
SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8
SUBJECT: Prisons: involuntary medication
SOURCE: Union of American Physicians and Dentists
DIGEST: This bill 1) provides that where the treating psychiatrist of a person who is incompetent to stand trial concludes, based on the need to maintain the doctor-patient relationship or prevent harm that another psychiatrist should be designated to seek an order for involuntary medication, the facility director may make such a designation; 2) requires the treating psychiatrist to brief the designated psychiatrist about the case; and 3) requires the designated prescribing psychiatrist to examine the person as to whom the involuntary medication order is sought.
ANALYSIS:
Existing law:
States that a person cannot be tried or adjudged to punishment while he or she is mentally incompetent (IST – incompetent to stand trial). A defendant is IST where he or she has a mental disorder or developmental disability that renders him or her unable to understand the nature of the criminal proceedings or assist counsel in his or her defense. (Pen. Code § 1367, subd. (a).)
States that if the court has a doubt as to whether or not a defendant is IST, the matter then proceeds as follows:
The court shall appoint a psychiatrist or psychologist to examine the defendant.
If the defendant objects to an IST finding, the court shall appoint two psychiatrists or psychologists.
The examining expert or experts shall evaluate the defendant’s mental disorder, ability to understand the proceedings or assist counsel in his or her a defense, and opine whether medications are medically appropriate and likely to restore the defendant to competency. (Pen. Code § 1369.)
States that prior to committing an IST defendant for treatment, the court shall determine whether the defendant consents to the administration of antipsychotic medications. (Pen. Code § 1370, subd. (a)(2)(B).)
If the defendant consents, the commitment order shall confirm that medication may be given to the defendant.
If the defendant does not consent to the administration of medication, the court shall hear and determine whether any of the following is true:
Serious harm to the physical or mental health of the patient will result.
The defendant is a danger to others.
The defendant has been charged with a serious crime; involuntary administration of anti-psychotic medication is likely to render the defendant competent; the medication is unlikely to interfere with the defendant’s defense and less intrusive treatments are ineffective. (Pen. Code § 1370, subd. (a)(2)(B)(ii)(I)-(III).); or,
If any of these grounds are true, the court shall authorize the treatment facility to involuntarily administer anti-psychotic medication to the defendant when and as prescribed by the defendant’s treating psychiatrist. (Pen. Code § 1370, subd. (a)(2)(B)(iii).)
Provides that where an IST in treatment withdraws consent for administration of medication, or if involuntary medication was not ordered upon commitment, and the treating psychiatrist believes that grounds for involuntary medication exist, the following shall occur:
The treating psychiatrist may issue a certificate for administration of medication for up to 21 days, until a hearing before a court can be held.
The IST defendant shall have the right to a medication review hearing before an administrative law judge (ALJ) within 72 hours.If the ALJ agrees that grounds for involuntary administration of medication exist, the involuntary medication may continue until a court hearing on the issue can be held.
If the ALJ finds that grounds for involuntary administration of medication have not been established, medication may not be involuntarily administered until a court decides the issue. (Pen. Code § 1370, subd. (a)(2)(C)-(D).)
Provides that if the ALJ upholds the certification by the treating psychiatrist for involuntary medication of the defendant for 21 days, the psychiatrist shall file with the court a copy of the certification and a petition for an order authorizing involuntary medications:
The court shall provide notice to the prosecutor and counsel for the defendant of the pending hearing.
The court shall hold the hearing within 18 days of the certification and determine if a formal order for involuntary medication should be made.
The court shall issue a decision within three calendar days, but within the 21-day certification period. (Pen. Code § 1370, subd. (a)(2)(D).)
Provides that an order for involuntary medication shall remain valid at any facility housing the defendant for purposes of return to competency and resumption of criminal proceedings, if the medication is prescribed by the defendant’s treating psychiatrist.
Provides that if an ALJ upholds the 21-day certification that antipsychotic medication has become medically necessary, the court may extend the certification and continue the hearing for no more than 14 days, upon a showing of good cause or the stipulation of the parties. (Pen. Code § 1370, subd. (a)(2)(D).)
Requires the court to review the order to administer involuntary medication at the time of the review of the initial competency report by the treating facility and at review of the six-month progress reports. (Pen. Code § 1370, subd. (a)(2)(B).)
Allows the district attorney, county counsel, or representative of any facility where a defendant found incompetent to stand trial is committed, within 60 days before the expiration of the one-year involuntary medication order, to petition the committing court for a renewal of the order, subject to specified conditions and requirements. (Pen. Code § 1370, subd. (a)(7)(B).)
This bill:
Provides that the treating psychiatrist of an IST patient may request the facility director to “designate another psychiatrist to act” in his or her place for the purposes of determining if an order for involuntary administration of antipsychotic medication should be sought. The request shall be based on the need to do one of the following:
Maintain doctor-patient
Prevent harm;
Requires the treating psychiatrist to “brief the acting psychiatrist on the relevant facts of the case.”
Requires the designated prescribing psychiatrist to examine the patient for whom an involuntary medication order is sought.
Background
Defendants who are incompetent to stand trial are often committed to the Department of State Hospitals (DSH) subject to court order that they be involuntarily medicated with antipsychotic medication. The grounds for involuntary medication include that the defendant is gravely disabled – unable to care for oneself - or a danger to self or others. Where a defendant withdraws consent for medication, or where treating clinicians believe that the defendant needs medication, the treating clinician will seek an involuntary medication order. DSH has reported that defendants who do not want to be medicated can become upset and distrustful of a clinician who seeks a medication order. This can lead to breakdown of the patient-psychotherapist relationship and angry reactions by the defendant. DSH clinicians have reported being assaulted after testifying in medication hearings.
This bill authorizes the facility medical director to designate another psychiatrist to seek the involuntary medication order, stabilizing or improving the relationship between the defendant and the clinician and likely maintaining a more calm hospital environment. The treating clinician must brief the designated psychiatrist. As amended in the Senate Public Safety Committee, the bill requires the designated psychiatrist to examine the defendant.
The recent amendments address concerns that authorizing a non-treating psychiatrist to seek a medication order could result in ineffective results, harmful medication errors and problematic side-effects. In addition to the harm experienced by the IST defendant, medication errors and problematic side-effects could delay the defendant’s return to competency and subject DSH, and perhaps the involved psychiatrists, to liability. Requiring the prescribing psychiatrist to examine the IST defendant will reduce the chances that inappropriate medication will be prescribed to him or her. This should result in better health for the IST defendant and timely returns to competency.
FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No
Union of American Physicians and Dentists (source)
American Federation of State, County and Municipal Employees
OPPOSITION: (Verified 5/12/15)
Legal Services for Prisoners with Children
ARGUMENTS IN SUPPORT:
The author argues:
“Under current law, a defendant must be competent to stand trial. If the defendant is not competent, they may be placed on antipsychotic medication, if certain standards met and findings made. The treating physician must first attempt to obtain consent from the defendant. If these efforts fail, and it is deemed medically necessary and appropriate, the treating physician can seek a judicial order for involuntary medication. A hearing is held in which the treating psychiatrist certifies and testifies that the antipsychotic drugs are necessary. If the judge agrees with the certification, the court issues an order for involuntary administration of medication.
“Through 2013 and 2014, it became apparent that DSH psychiatrists were being assaulted or seriously injured following their testimony in involuntary medication hearings. This bill will allow a non-treating psychiatrist to testify in the hearings, thereby helping preserving the relationship between the clinician and the IST defendant and reducing or eliminating reprisals against clinicians for seeking an order the IST defendant angrily opposes.”
ARGUMENTS IN OPPOSITION: Legal Services for Prisoners with Children argues: This bill will allow a psychiatrist who is not fully informed about an IST defendant to testify at a hearing concerning involuntary medication. The treating psychiatrist is the best person to make the certification at an involuntary medication hearing because the treating physician well knows the patient’s circumstances and condition. The treating psychiatrist can thus can be adequately examined and cross-examined about the issue.
This bill will not improve doctor safety or doctor-patient relationships because the patient will know that his or her treating psychiatrist was working toward getting the patient medicated. Further, doctors are not routinely attacked at medication hearings.
Prepared by: Jerome McGuire / PUB. S. /
5/13/15 17:26:17
**** END ****
SB 453 (Pan ) Page 7 of 7
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 453 Hearing Date: April 21, 2015
Author: |
Pan |
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Version: |
April 6, 2015 |
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Urgency: |
No |
Fiscal: |
Yes |
Consultant: |
JM |
||
Subject: Prisons: Involuntary Medication
HISTORY
Source: Union of American Physicians and Dentists
Prior Legislation: AB 2186
(Lowenthal) Ch. 744, Stats. 2014
SB 1412 (Nielsen) Ch. 759,
Stats. 2014
AB 2625 (Achadjian) Ch. 742, Stats. 2013
AB
1907 (Lowenthal) Ch. 814, Stats. 2012
AB 366 (Allen) Ch. 654,
Stats. 2011
SB 1794 (Perata) Ch. 486, Stats. 2004
Support: American Federation of State, County and Municipal Employees
Opposition: Disability Rights California; Legal Services for Prisoners with Children
PURPOSE
The purpose of this bill is to 1) provide that where the treating psychiatrist of a person who is incompetent to stand trial concludes, based on the need to maintain the doctor-patient relationship, prevent harm or “other factors,” that another psychiatrist should be designated to seek an order for involuntary medication, the facility director may make such a designation; and 2) require the treating psychiatrist to brief the designated psychiatrist about the case.
Existing law states that a person cannot be tried or adjudged to punishment while he or she is mentally incompetent (IST – incompetent to stand trial). (Pen. Code § 1367, subd. (a).)
Existing law provides that a defendant is incompetent to stand trial where he or she has a mental disorder or developmental disability that renders him or her unable to understand the nature of the criminal proceedings or assist counsel in his or her defense. (Pen. Code § 1367, subd. (a).)
Existing law states that if the court has a doubt as to whether or not a defendant is IST, the court shall state that doubt on the record and shall seek defense counsel’s opinion as to the defendant’s competence. (Pen. Code § 1368, subd. (a).) The matter then proceeds as follows:
The court shall appoint a psychiatrist or psychologist to examine the defendant.
If the defendant is not seeking a finding of mental incompetence, the court shall appoint two psychiatrists or psychologists.
The examining expert shall evaluate the nature of the defendant’s mental disorder; his or her ability to understand the proceedings or assist counsel in the conduct of a defense; and whether or not treatment with medications is medically appropriate and likely to restore the defendant to competency.
The counsel for the defendant shall offer evidence in support of the allegation of mental incompetence.
The prosecution shall present its case regarding the issue of the defendant’s present mental competence.
Each party may present rebutting testimony, unless the court, for good reason in furtherance of justice, also permits other evidence in support of the original contention. (Pen. Code § 1369.)
Existing law states that if the defendant is found mentally competent, the criminal process shall resume. (Pen. Code § 1370, subd. (a)(1)(A).)
Existing law states that if the defendant is found IST, the matter shall be suspended until the person becomes mentally competent. (Pen. Code § 1370, subd. (a)(1)(B).)
Existing law includes processes for incompetence hearings, findings and orders concerning persons on mandatory supervision, post release community supervision and parole. (Pen. Code § 1367 et seq.)
Existing law states that an incompetent defendant charged with a violent felony (Pen. Code § 667.5, subd. (c)) may not be delivered to a state hospital or treatment entity that does not have a secured perimeter or a locked and controlled treatment facility. The court must determine that public safety will be protected. (Pen. Code § 1370, subd. (a)(1)(D).)
Existing law states that prior to committing an IST defendant for treatment, the court shall determine whether the defendant consents to the administration of antipsychotic medications. (Pen. Code § 1370, subd. (a)(2)(B).)
If the defendant consents, the commitment order shall confirm that medication may be given to the defendant.
If the defendant does not consent to the administration of medication, the court shall hear and determine whether any of the following is true:
The defendant lacks capacity to make decisions regarding medication, the defendant’s mental disorder requires treatment with medication, and, if the defendant’s mental disorder is not so treated, it is probable that serious harm to the physical or mental health of the patient will result. Probability of serious harm is shown by evidence that the defendant is presently suffering adverse effects to his or her physical or mental health, or has previously suffered these effects as a result of a mental disorder and his or her condition is substantially deteriorating;
The defendant is a danger to others, in that he or she has inflicted, attempted to inflict, or made a serious threat of inflicting substantial physical injury on another while in custody, or the defendant had inflicted, attempted to inflict, or made a serious threat of inflicting such harm on another, for which the defendant was taken into custody, and he or she presents, as a result of mental disorder or mental defect, a demonstrated danger of inflicting such harm on others. Demonstrated danger may be based on the defendant’s present mental condition, including a consideration of behavior within six years of the time the defendant attempted to inflict, inflicted, or threatened to inflict substantial physical harm on another, and other relevant evidence;
The defendant has been charged with a serious crime against a person or property; involuntary administration of anti-psychotic medication is substantially likely to render the defendant competent; the medication is unlikely to have side effects that interfere with the defendant’s ability to understand the criminal proceedings or to assist counsel in the conduct of a defense; less intrusive treatments are unlikely to have substantially the same results; and anti-psychotic medication is in the patient’s best medical interest in light of his or her medical condition. (Pen. Code § 1370, subd. (a)(2)(B)(ii)(I)-(III).); or,
If the court finds any of these grounds to be true, the court shall authorize the treatment facility to involuntarily administer anti-psychotic medication to the defendant when and as prescribed by the defendant’s treating psychiatrist. (Pen. Code § 1370, subd. (a)(2)(B)(iii).)
Existing law includes detailed procedures for review of orders for involuntary antipsychotic medication and to determine whether a person committed as IST without a medication order should be medicated. (Pen. Code § 1370, subd. (a)-(h).)
Existing law provides that where an IST in treatment withdraws consent for administration of antipsychotic medication, or if involuntary medication was not ordered upon commitment, and the treating psychiatrist believes that grounds for involuntary medication exist, the following shall occur:
The treating psychiatrist may issue a certificate for administration of medication for up to 21 days, until a hearing before a court can be held.
The IST defendant shall have the right to a medication review hearing before an administrative law judge (ALJ) within 72 hours.
If the ALJ agrees that grounds for involuntary administration of medication exist, the involuntary medication may continue until a court hearing on the issue can be held.
If the ALJ finds that grounds for involuntary administration of medication have not been established, medication may not be involuntarily administered until a court decides the issue. (Pen. Code § 1370, subd. (a)(2)(C)-(D).)
Existing law provides that if the ALJ upholds the certification by the treating psychiatrist for involuntary medication of the defendant for 21 days, the psychiatrist shall file with the court a copy of the certification and a petition for an order authorizing involuntary medications:
The court shall provide notice to the prosecutor and counsel for the defendant of the pending hearing.
The court shall hold the hearing within 18 days of the issuance of the certification and determine if a formal order for involuntary medication should be made.
The court shall issue its decision within three calendar days, but no later than the expiration of the 21-day certification period. (Pen. Code § 1370, subd. (a)(2)(D).)
The court shall hold the hearing within 18 days of the issuance of the certification and determine if a formal order for involuntary medication should be made.
The court shall issue its decision within three calendar days, but no later than the expiration of the 21-day certification period. (Pen. Code § 1370, subd. (a)(2)(D).)
Existing law requires the court, when determining if grounds exist for ordering involuntary administration of antipsychotic medication to an IST defendant, to consider the reports prepared by the psychiatrist or psychologist who examined the defendant for mental competency purposes, per se, if those reports are applicable to the involuntary medication issue. (Pen. Code § 1370, subd. (a)(2)(B).)
Existing law provides that an order for involuntary medication shall remain valid at any facility housing the defendant for purposes of return to competency and resumption of criminal proceedings, if the medication is prescribed by the defendant’s treating psychiatrist.
Existing law provides that if an administrative law judge upholds the 21-day certification by the treating psychiatrist that antipsychotic medication has become medically necessary and appropriate while the defendant is being treated, the court may extend the certification and continue the hearing for no more than 14 days, upon a showing of good cause or the stipulation of the parties. (Pen. Code § 1370, subd. (a)(2)(D).)
Existing law requires the court to review the order to administer involuntary medication at the time of the review of the initial competency report by the medical director of the treatment facility and at review of the six-month progress reports. (Pen. Code § 1370, subd. (a)(2)(B).)
Existing law allows the district attorney, county counsel, or representative of any facility where a defendant found incompetent to stand trial is committed, within 60 days before the expiration of the one-year involuntary medication order, to petition the committing court for a renewal of the order, subject to the specified conditions and requirements.
The petition shall include the basis for involuntary medication, as specified, and requires notice of the petition to be provided to the defendant, the defendant’s attorney, and the district attorney.
The court shall hear and determine if the defendant continues to meet the required criteria for involuntary medication and that the hearing be conducted before the expiration of the current order. (Pen. Code § 1370, subd. (a)(7)(B).)
This bill provides that the treating psychiatrist of an IST patient may request the facility director to “designate another psychiatrist to act” in his or her place for the purposes of determining if an order for involuntary administration of antipsychotic medication should be sought. The request shall be based on the need to do one of the following:
Maintain doctor-patients rapport;
Prevent harm; or
Other factors
This bill requires the treating psychiatrist to “brief the acting psychiatrist on the relevant facts of the case.”
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past eight years, this Committee has scrutinized legislation referred to its jurisdiction for any potential impact on prison overcrowding. Mindful of the United States Supreme Court ruling and federal court orders relating to the state’s ability to provide a constitutional level of health care to its inmate population and the related issue of prison overcrowding, this Committee has applied its “ROCA” policy as a content-neutral, provisional measure necessary to ensure that the Legislature does not erode progress in reducing prison overcrowding.
On February 10, 2014, the federal court ordered California to reduce its in-state adult institution population to 137.5% of design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In February of this year the administration reported that as “of February 11, 2015, 112,993 inmates were housed in the State’s 34 adult institutions, which amounts to 136.6% of design bed capacity, and 8,828 inmates were housed in out-of-state facilities. This current population is now below the court-ordered reduction to 137.5% of design bed capacity.”( Defendants’ February 2015 Status Report In Response To February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman v. Brown, Plata v. Brown (fn. omitted).
While significant gains have been made in reducing the prison population, the state now must stabilize these advances and demonstrate to the federal court that California has in place the “durable solution” to prison overcrowding “consistently demanded” by the court. (Opinion Re: Order Granting in Part and Denying in Part Defendants’ Request For Extension of December 31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court, Coleman v. Brown, Plata v. Brown (2-10-14). The Committee’s consideration of bills that may impact the prison population therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed to reducing the prison population;
Whether a proposal addresses a major area of public safety or criminal activity for which there is no other reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly dangerous to the physical safety of others for which there is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or legislative drafting error; and
Whether a proposal proposes penalties which are proportionate, and cannot be achieved through any other reasonably appropriate remedy.
COMMENTS
Need for This Bill
Under current law, a defendant must be competent to stand trial. If the defendant is not competent, they may be placed on antipsychotic medication, if certain standards met and findings made. The treating physician must first attempt to obtain consent from the defendant. If these efforts fail, and it is deemed medically necessary and appropriate, the treating physician can seek a judicial order for involuntary medication. A hearing is held in which the treating psychiatrist certifies and testifies that the antipsychotic drugs are necessary. If the judge agrees with the certification, the court issues an order for involuntary administration of medication.
Through 2013 and 2014, it became apparent that DSH psychiatrists were being assaulted or seriously injured following their testimony in involuntary medication hearings. To reduce the number of injuries, DSH proposed legislation that would allow a non-treating psychiatrist to testify in the hearings and expand the time superior courts could schedule a hearing. Last year, the Governor’s Office convened a workgroup to propose changes to the IST process, thus postponing the proposal to allow non-treating psychiatrists to testify in an involuntary medication hearing.
Legislation concerning Persons who are Incompetent to Stand Trial
Due process is required in committing persons to state hospitals and administering involuntary medication. The United States Supreme Court has set requirements and standards for involuntary administration of medication to IST patients. Further, the Department of State Hospital has only recently been released from a federal court consent judgment concerning adequate treatment of patients.
Over the last 10 years, numerous measures have been enacted concerning defendants and supervised persons who are incompetent to stand trial or face punishment. The governing statutes are extremely lengthy, layered and intricate. The law must balance the interests of the state in trying and punishing offenders, protection of the rights of involuntarily committed persons and administering a treatment system for persons who may be dangerous. Much of the recent legislation has concerned involuntary administration of medication.
Staff members at DSH facilities have become increasingly concerned about safety in recent years, as the proportion of patients committed from the criminal justice system - forensic patients - have risen to over 90%. It appears that this bill is intended to reduce retributive acts against treating psychiatrists by patients who object to involuntary administration of antipsychotic medication. The bill does so by authorizing a non-treating psychiatrist to seek an involuntary mediation order, reducing the friction or conflict between the treating doctor and a patient who does not want to be medicated.
The bill, however, raises the issue of whether a designated psychiatrist will know enough about a patient to act in these matters? The bill requires the treating psychiatrist to brief the designated psychiatrist about the facts of the case, but the bill provides no guidelines or requirements to make sure that such briefings are adequate. This raises additional issues about liability in a case where some harm comes to the patient from involuntarily administered medication. Disability Rights California has addressed this issue by arguing that a designated psychiatrist should be required to examine the patients.
Argument in Support
The American Federation of State, County and Municipal Employees argues in support:
AFSCME, though our affiliate the Union of American Physicians and Dentists (UAPD) represents physicians in state service, including DSH psychiatrists. SB 453 would authorize a psychiatrist designated by the facility medical director to make the determinations and certifications [about the necessity of antipsychotic medication]. AFSCME strongly supports SB 453 because we believe it is necessary to ensure the safety of DSH physicians who are often threatened by individuals who are deemed mentally incompetent. By authorizing designated psychiatrists to properly administer medication to these defendants we can ensure the safety of treating psychiatrists.
Argument in Opposition
Disability Rights California argues in opposition:
Existing law identifies circumstances for the voluntary and involuntary administration of antipsychotic medication. If consent for medication is withdrawn or if the treating physician determines that medication is necessary and appropriate, the treating psychiatrist must make efforts to obtain consent for the medication. If the treating psychiatrist certifies that medication is necessary and appropriate, antipsychotic medication may be administered to the defendant for a maximum of 21 days, provided that the defendant has medication review hearing before an administrative law judge.
This bill would instead authorize a psychiatrist designated by the facility medical director to make the determination and certification [of the need for medication]. The bill allows the designated psychiatrist to [act based on] a paper review without examining the patient. Current law ensures that the [person seeking a medication order] is the treating psychiatrist and thus has first-hand knowledge of the patient, such that risks, benefits and alternatives can be [fully] considered…and the patient can be properly advised …so that the patient can give informed consent if [he or she] has the capacity to do so. Unfortunately, we have seen many situations where doctors make decisions without adequate knowledge about a patient. This bill will [create] more of those situations.
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Discussed in Hearing
2MIN
Assembly Standing Committee on Business and Professions
1MIN
Senate Floor
7MIN
Senate Standing Committee on Public Safety
Bill Author
Bill Co-Author(s):