SB 1184: Mental health: involuntary treatment: antipsychotic medication.
- Session Year: 2023-2024
- House: Senate
- Latest Version Date: 2024-09-27
Current Status:
Passed
(2024-09-27: Chaptered by Secretary of State. Chapter 643, Statutes of 2024.)
Introduced
In Committee
First Chamber
In Committee
Second Chamber
Enacted
What does this bill do?
The bill lets a treating doctor ask for a new hearing up to 48 hours before a detention period ends to decide whether a detained person can refuse antipsychotic medication when the doctor believes the person still needs to be held. In urgent situations, it allows an existing order to give antipsychotic medication to continue into the next detention period while a new hearing is scheduled, requires that hearing be held as soon as reasonably possible and within 24 hours, and requires the doctor to put a written statement of the urgency in the patient’s record and for facilities to report those cases to county and state behavioral health officials.
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Existing law, the Lanterman-Petris-Short Act, provides for the involuntary commitment of persons who are a danger to themselves or others, or who are gravely disabled, due to a mental disorder or chronic alcoholism or drug abuse for 72 hours for evaluation and treatment, as specified. If certain conditions are met after the 72-hour detention, the act authorizes the certification of the person for a 14-day maximum period of intensive treatment and then another 14-day or 30-day maximum period of intensive treatment after the initial 14-day period of intensive treatment. Existing law, during the 30-day period of intensive treatment, as specified, also authorizes up to an additional 30 days of intensive treatment if certain conditions are met. Existing law authorizes the administration of antipsychotic medication to a person who is detained for evaluation and treatment for any of those detention periods, except for the second 30-day period.
Existing law establishes a process for hearings to determine a persons capacity to refuse the treatment. Existing law requires a determination of a persons incapacity to refuse treatment with antipsychotic medication to remain in effect only for the duration of the 72-hour period or initial 14-day intensive treatment period, or both, until capacity is restored, or by court determination. Existing law generally requires the capacity hearings described above to be held within 24 hours of the filing of a petition to determine a persons capacity to refuse treatment. Existing law authorizes the hearing to be postponed in certain circumstances, but prohibits the hearing from being held beyond 72 hours of the filing of the petition.
This bill would authorize, except as specified, a persons treating physician to request a hearing for a new determination of a persons capacity to refuse treatment with antipsychotic medication at any time in the 48 hours prior to the end of the duration of the current detention period when it reasonably appears to the treating physician that it is necessary for the person to be detained for a subsequent detention period and their capacity has not been restored.
The bill would require, under exigent circumstances, the hearing to determine a persons capacity to refuse treatment to be held as soon as reasonably practicable and within 24 hours. The bill would require, under exigent circumstances, an order for treatment with antipsychotic medication to remain in effect at the beginning of the 14-day period, or the additional 30-day period after the 14-day intensive treatment period, or the second 30-day period, provided that a petition for a new determination on the question of capacity has been filed, and would require the order to remain in effect until a hearing on that petition for that detention period is held and a decision issued. The bill would specify the factors required to be present in order for there to be exigent circumstances necessitating an expedited hearing, including, among others, that there has been a delay in a hearing to determine a persons capacity to refuse treatment with antipsychotic medication, creating a risk that the existing capacity determination may expire before a new capacity determination is made, and the persons treating physician executes a specified written attestation of exigent circumstances that is maintained in the persons medical record. The bill would require that, each time one of those attestations is made and an order for treatment with antipsychotic medication remains in effect, the treating facility report specified information to the county behavioral health director in the county in which they operate. The bill would require the county behavioral health directors to provide that information to the department, and would require the department to include that information in an annual report it is required to publish. The bill would make these provisions inoperative on January 1, 2030. By increasing the duties on county behavioral health directors, this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
Existing law, the Lanterman-Petris-Short Act, provides for the involuntary commitment of persons who are a danger to themselves or others, or who are gravely disabled, due to a mental disorder or chronic alcoholism or drug abuse for 72 hours for evaluation and treatment, as specified. If certain conditions are met after the 72-hour detention, the act authorizes the certification of the person for a 14-day maximum period of intensive treatment and then another 14-day or 30-day maximum period of intensive treatment after the initial 14-day period of intensive treatment. Existing law, during the 30-day period of intensive treatment, as specified, also authorizes up to an additional 30 days of intensive treatment if certain conditions are met. Existing law authorizes the administration of antipsychotic medication to a person who is detained for evaluation and treatment for any of those detention periods, except for the second 30-day period.
Existing law establishes a process for hearings to determine a persons capacity to refuse the treatment. Existing law requires a determination of a persons incapacity to refuse treatment with antipsychotic medication to remain in effect only for the duration of the 72-hour period or initial 14-day intensive treatment period, or both, until capacity is restored, or by court determination. Existing law generally requires the capacity hearings described above to be held within 24 hours of the filing of a petition to determine a persons capacity to refuse treatment. Existing law authorizes the hearing to be postponed in certain circumstances, but prohibits the hearing from being held beyond 72 hours of the filing of the petition.
This bill would authorize, except as specified, a persons treating physician to request a hearing for a new determination of a persons capacity to refuse treatment with antipsychotic medication at any time in the 48 hours prior to the end of the duration of the current detention period when it reasonably appears to the treating physician that it is necessary for the person to be detained for a subsequent detention period and their capacity has not been restored.
The bill would require, under exigent circumstances, the hearing to determine a persons capacity to refuse treatment to be held as soon as reasonably practicable and within 24 hours. The bill would require, under exigent circumstances, an order for treatment with antipsychotic medication to remain in effect at the beginning of the 14-day period, or the additional 30-day period after the 14-day intensive treatment period, or the second 30-day period, provided that a petition for a new determination on the question of capacity has been filed, and would require the order to remain in effect until a hearing on that petition for that detention period is held and a decision issued. The bill would specify the factors required to be present in order for there to be exigent circumstances necessitating an expedited hearing, including, among others, that there has been a delay in a hearing to determine a persons capacity to refuse treatment with antipsychotic medication, creating a risk that the existing capacity determination may expire before a new capacity determination is made, and the persons treating physician executes a specified written attestation of exigent circumstances that is maintained in the persons medical record. The bill would require that, each time one of those attestations is made and an order for treatment with antipsychotic medication remains in effect, the treating facility report specified information to the county behavioral health director in the county in which they operate. The bill would require the county behavioral health directors to provide that information to the department, and would require the department to include that information in an annual report it is required to publish. The bill would make these provisions inoperative on January 1, 2030. By increasing the duties on county behavioral health directors, this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
Existing law, the Lanterman-Petris-Short Act, provides for the involuntary commitment of persons who are a danger to themselves or others, or who are gravely disabled, due to a mental disorder or chronic alcoholism or drug abuse for 72 hours for evaluation and treatment, as specified. If certain conditions are met after the 72-hour detention, the act authorizes the certification of the person for a 14-day maximum period of intensive treatment and then another 14-day or 30-day maximum period of intensive treatment after the initial 14-day period of intensive treatment. Existing law, during the 30-day period of intensive treatment, as specified, also authorizes up to an additional 30 days of intensive treatment if certain conditions are met. Existing law authorizes the administration of antipsychotic medication to a person who is detained for evaluation and treatment for any of those detention periods, except for the second 30-day period.
Existing law establishes a process for hearings to determine a persons capacity to refuse the treatment. Existing law requires a determination of a persons incapacity to refuse treatment with antipsychotic medication to remain in effect only for the duration of the 72-hour period or initial 14-day intensive treatment period, or both, until capacity is restored, or by court determination. Existing law generally requires the capacity hearings described above to be held within 24 hours of the filing of a petition to determine a persons capacity to refuse treatment. Existing law authorizes the hearing to be postponed in certain circumstances, but prohibits the hearing from being held beyond 72 hours of the filing of the petition.
This bill would authorize, except as specified, a persons treating physician to request a hearing for a new determination of a persons capacity to refuse treatment with antipsychotic medication at any time in the 48 hours prior to the end of the duration of the current detention period when it reasonably appears to the treating physician that it is necessary for the person to be detained for a subsequent detention period and their capacity has not been restored.
The bill would require, under exigent circumstances, the hearing to determine a persons capacity to refuse treatment to be held as soon as reasonably practicable and within 24 hours. The bill would require, under exigent circumstances, an order for treatment with antipsychotic medication to remain in effect at the beginning of the 14-day period, or the additional 30-day period after the 14-day intensive treatment period, or the second 30-day period, provided that a petition for a new determination on the question of capacity has been filed, and would require the order to remain in effect until a hearing on that petition for that detention period is held and a decision issued. The bill would specify the factors required to be present in order for there to be exigent circumstances necessitating an expedited hearing, including, among others, that there has been a delay in a hearing to determine a persons capacity to refuse treatment with antipsychotic medication, creating a risk that the existing capacity determination may expire before a new capacity determination is made, and the persons treating physician executes a specified written attestation of exigent circumstances that is maintained in the persons medical record. The bill would require that, each time one of those attestations is made and an order for treatment with antipsychotic medication remains in effect, the treating facility report specified information to the State Department of Health Care Services, county behavioral health director in the county in which they operate. The bill would require the county behavioral health directors to provide that information to the department, and would require the department to include that information in an annual report it is required to publish. The bill would make these provisions inoperative on January 1, 2030. By increasing the duties on county behavioral health directors, this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
Existing law, the Lanterman-Petris-Short Act, provides for the involuntary commitment of persons who are a danger to themselves or others, or who are gravely disabled, due to a mental disorder or chronic alcoholism or drug abuse for 72 hours for evaluation and treatment, as specified. If certain conditions are met after the 72-hour detention, the act authorizes the certification of the person for a 14-day maximum period of intensive treatment and then another 14-day or 30-day maximum period of intensive treatment after the initial 14-day period of intensive treatment. Existing law, during the 30-day period of intensive treatment, as specified, also authorizes up to an additional 30 days of intensive treatment if certain conditions are met. Existing law authorizes the administration of antipsychotic medication to a person who is detained for evaluation and treatment for any of those detention periods, except for the second 30-day period, and establishes a process for hearings to determine the persons capacity to refuse the treatment. Existing law requires a determination of a persons incapacity to refuse treatment with antipsychotic medication to remain in effect only for the duration of the 72-hour period or initial 14-day intensive treatment period, or both, until capacity is restored, or by court determination. period.
This bill would authorize the administration of antipsychotic medication to a person who is detained for the second 30-day period. The bill would requireExisting law establishes a process for hearings to determine a persons capacity to refuse the treatment. Existing law requires a determination of a persons incapacity to refuse treatment with antipsychotic medication to remain in effect only for the duration of the 72-hour period or initial 14-day intensive treatment period, or both, until capacity is restored, or by court determination. Existing law generally requires the capacity hearings described above to be held within 24 hours of the filing of a petition to determine a persons capacity to refuse treatment. Existing law authorizes the hearing to be postponed in certain circumstances, but prohibits the hearing from being held beyond 72 hours of the filing of the petition.
This bill would authorize, except as specified, a persons treating physician to request a hearing for a new determination of a persons capacity to refuse treatment with antipsychotic medication at any time in the 48 hours prior to the end of the duration of the current detention period when it reasonably appears to the treating physician that it is necessary for the person to be detained for a subsequent detention period and their capacity has not been restored.
The bill would require, under exigent circumstances, the hearing to determine a persons capacity to refuse treatment to be held as soon as reasonably practicable and within 24 hours. The bill would require, under exigent circumstances, an order for treatment with antipsychotic medication to remain in effect at the beginning of the 14-day period, or the additional 30-day period after the 14-day intensive treatment period, or the second 30-day period, provided that a petition for a new determination on the question of capacity has been filed, and would require the order to remain in effect until the court hears a a hearing on that petition for that detention period and issues a decision. is held and a decision issued. The bill would specify the factors required to be present in order for there to be exigent circumstances necessitating an expedited hearing, including, among others, that there has been a delay in a hearing to determine a persons capacity to refuse treatment with antipsychotic medication, creating a risk that the existing capacity determination may expire before a new capacity determination is made, and the persons treating physician executes a specified written attestation of exigent circumstances that is maintained in the persons medical record. The bill would require that, each time one of those attestations is made and an order for treatment with antipsychotic medication remains in effect, the treating facility report specified information to the State Department of Health Care Services, and would require the department to include that information in an annual report it is required to publish. The bill would make these provisions inoperative on January 1, 2030.
Existing law, the Lanterman-Petris-Short Act, provides for the involuntary commitment of persons who are a danger to themselves or others, or who are gravely disabled, due to a mental disorder or chronic alcoholism or drug abuse for 72 hours for evaluation and treatment, as specified. If certain conditions are met after the 72-hour detention, the act authorizes the certification of the person for a 14-day maximum period of intensive treatment and then another 14-day or 30-day maximum period of intensive treatment after the initial 14-day period of intensive treatment. Existing law, during the 30-day period of intensive treatment, as specified, also authorizes up to an additional 30 days of intensive treatment if certain conditions are met. Existing law authorizes the administration of antipsychotic medication to a person who is detained for evaluation and treatment for any of those detention periods, except for the second 30-day period, and establishes a process for hearings to determine the persons capacity to refuse the treatment. Existing law requires a determination of a persons incapacity to refuse treatment with antipsychotic medication to remain in effect only for the duration of the 72-hour period or initial 14-day intensive treatment period, or both, until capacity is restored, or by court determination.
This bill would authorize the administration of antipsychotic medication to a person who is detained for the second 30-day period. The bill would additionally require the determination of a persons incapacity to refuse treatment with antipsychotic medication to remain in effect for the duration of the additional 14-day period or the additional 30-day period after the 14-day intensive treatment period, or the additional period of up to 30 days if certain conditions are met during the first 30-day period, and would authorize a person who was found to lack capacity at a capacity hearing to file a petition to request a redetermination hearing on the question of incapacity at the commencement of any of those detention periods, as specified. require an order for treatment with antipsychotic medication to remain in effect at the beginning of the 14-day period, or the additional 30-day period after the 14-day intensive treatment period, or the second 30-day period, provided that a petition for a new determination on the question of capacity has been filed, and would require the order to remain in effect until the court hears a petition for that detention period and issues a decision.
Existing law, the Lanterman-Petris-Short Act, provides for the involuntary commitment of persons who are a danger to themselves or others, or who are gravely disabled, due to a mental disorder or chronic alcoholism or drug abuse for 72 hours for evaluation and treatment, as specified. If certain conditions are met after the 72-hour detention, the act authorizes the certification of the person for a 14-day maximum period of intensive treatment and then another 14-day or 30-day maximum period of intensive treatment after the initial 14-day period of intensive treatment. Existing law, during the 30-day period of intensive treatment, as specified, also authorizes up to an additional 30 days of intensive treatment if certain conditions are met. Existing law authorizes the administration of antipsychotic medication to a person who is detained for evaluation and treatment for any of those detention periods, except for the second 30-day period, and establishes a process for hearings to determine the persons capacity to refuse the treatment. Existing law requires a determination of a persons incapacity to refuse treatment with antipsychotic medication to remain in effect only for the duration of the 72-hour period or initial 14-day intensive treatment period, or both, until capacity is restored, or by court determination.
This bill would authorize the administration of antipsychotic medication to a person who is detained for the second 30-day period. The bill would additionally require the determination of a persons incapacity to refuse treatment with antipsychotic medication to remain in effect for the duration of the additional 14-day period or the additional 30-day period after the 14-day intensive treatment period, or the additional period of up to 30 days if certain conditions are met during the first 30-day period. period, and would authorize a person who was found to lack capacity at a capacity hearing to file a petition to request a redetermination hearing on the question of incapacity at the commencement of any of those detention periods, as specified.
Existing law, the Lanterman-Petris-Short Act, provides for the involuntary commitment of persons who are a danger to themselves or others, or who are gravely disabled, due to a mental disorder or chronic alcoholism or drug abuse for 72 hours for evaluation and treatment, as specified. If certain conditions are met after the 72-hour detention, the act authorizes the certification of the person for a 14-day maximum period of intensive treatment and then another 14-day or 30-day maximum period of intensive treatment after the initial 14-day period of intensive treatment. Existing law, during the 30-day period of intensive treatment, as specified, also authorizes up to an additional 30 days of intensive treatment if certain conditions are met. Existing law authorizes the administration of antipsychotic medication to a person who is detained for evaluation and treatment for any of those detention periods, and establishes a process for hearings to determine the persons capacity to refuse the treatment. Existing law requires a determination of a persons incapacity to refuse treatment with antipsychotic medication to remain in effect only for the duration of the 72-hour period or initial 14-day intensive treatment period, or both, until capacity is restored, or by court determination.
This bill would additionally require the determination of a persons incapacity to refuse treatment with antipsychotic medication to remain in effect for the duration of the additional 14-day period or the additional 30-day period after the 14-day intensive treatment period, or all periods of treatment that are applicable. the additional period of up to 30 days if certain conditions are met during the first 30-day period.
Existing law, the Lanterman-Petris-Short Act, provides for the involuntary commitment of persons who are a danger to themselves or others, or who are gravely disabled, due to a mental disorder or chronic alcoholism or drug abuse for 72 hours for evaluation and treatment, as specified. If certain conditions are met after the 72-hour detention, the act authorizes the certification of the person for a 14-day maximum period of intensive treatment and then another 14-day or 30-day maximum period of intensive treatment after the initial 14-day period of intensive treatment. Existing law authorizes the administration of antipsychotic medication to a person who is detained for evaluation and treatment for any of those detention periods, and establishes a process for hearings to determine the persons capacity to refuse the treatment. Existing law requires a determination of a persons incapacity to refuse treatment with antipsychotic medication to remain in effect only for the duration of the 72-hour period or initial 14-day intensive treatment period, or both, until capacity is restored, or by court determination.
This bill would additionally require the determination of a persons incapacity to refuse treatment with antipsychotic medication to remain in effect for the duration of the additional 14-day period or the additional 30-day period after the 14-day intensive treatment period, or all periods of treatment that are applicable.
Any person who is subject to detention pursuant to Section 5150, 5250, 5260, 5270.15, or 5270.70 shall have the right to refuse treatment with antipsychotic medication subject to provisions set forth in this chapter.
SEC. 2.Section 5332 of the Welfare and Institutions Code is amended to read:5332.(a)Antipsychotic medication, as defined in subdivision (l) of Section 5008, may be administered to any person subject to detention pursuant to Section 5150, 5250, 5260, 5270.15, or 5270.70, if that person does not refuse that medication following disclosure of the right to refuse medication as well as information required to be given to persons pursuant to subdivision (e) of Section 5152 and subdivision (b) of Section 5213.
(b)If any person subject to detention pursuant to Section 5150, 5250, 5260, 5270.15, or 5270.70, and for whom antipsychotic medication has been prescribed, orally refuses or gives other indication of refusal of treatment with that medication, the medication shall be administered only when treatment staff have considered and determined that treatment alternatives to involuntary medication are unlikely to meet the needs of the patient, and upon a determination of that persons incapacity to refuse the treatment, in a hearing held for that purpose.
(c)Each hospital in conjunction with the hospital medical staff or any other treatment facility in conjunction with its clinical staff shall develop internal procedures for facilitating the filing of petitions for capacity hearings and other activities required pursuant to this chapter.
(d)When a person is subject to detention pursuant to Section 5150, 5250, 5260, 5270.15, or 5270.70, the agency or facility providing the treatment shall acquire the persons medication history, if possible.
(e)In the case of an emergency, as defined in subdivision (m) of Section 5008, a person detained pursuant to Section 5150, 5250, 5260, 5270.15, or 5270.70 may be treated with antipsychotic medication over the persons objection prior to a capacity hearing, but only with antipsychotic medication that is required to treat the emergency condition, which shall be provided in the manner least restrictive to the personal liberty of the patient. It is not necessary for harm to take place or become unavoidable prior to intervention.
SEC. 3.Section 5334 of the Welfare and Institutions Code is amended to read:5334.(a)(1)Capacity hearings required by Section 5332 shall be heard within 24 hours of the filing of the petition whenever possible. However, if any party needs additional time to prepare for the hearing, the hearing shall be postponed for 24 hours. In case of hardship, hearings may also be postponed for an additional 24 hours, pursuant to local policy developed by the county mental health director and the presiding judge of the superior court regarding the scheduling of hearings. The policy developed pursuant to this subdivision shall specify procedures for the prompt filing and processing of petitions to ensure that the deadlines set forth in this section are met, and shall take into consideration the availability of advocates and the treatment needs of the patient. In no event shall hearings be held beyond 72 hours of the filing of the petition. The person who is the subject of the petition and the persons advocate or counsel shall receive a copy of the petition at the time it is filed.
(2)(A)Under exigent circumstances, upon the filing of a petition for a hearing to determine a persons capacity to refuse treatment with antipsychotic medication and an attestation of exigent circumstances being documented in a persons medical record pursuant to subdivision (b) of Section 5336, a hearing shall be held to determine the persons capacity to refuse treatment with antipsychotic medication on an expedited basis and as soon as reasonably practicable.
(B)This paragraph shall be inoperative on January 1, 2030.
(b)(1)Capacity hearings shall be held in an appropriate location at the facility where the person is receiving treatment, and shall be held in a manner compatible with, and the least disruptive of, the treatment being provided to the person.
(2)Subject to any applicable rules of court, a capacity hearing may be conducted by remote means in an appropriate location at the facility where the person is receiving treatment as authorized pursuant to Section 367.76 of the Code of Civil Procedure, so long as the hearing would be compatible with, and be the least disruptive of, the treatment being provided to the person, as required by paragraph (1).
(c)Capacity hearings shall be conducted by a superior court judge, a court-appointed commissioner or referee, or a court-appointed hearing officer. All commissioners, referees, and hearing officers shall be appointed by the superior court from a list of attorneys unanimously approved by a panel composed of the local mental health director, the county public defender, and the county counsel or district attorney designated by the county board of supervisors. No employee of the county mental health program or of any facility designated by the county and approved by the department as a facility for 72-hour treatment and evaluation may serve as a hearing officer. All hearing officers shall receive training in the issues specific to capacity hearings.
(d)The person who is the subject of the capacity hearing shall be given oral notification of the determination at the conclusion of the capacity hearing. As soon thereafter as is practicable, the person, the persons counsel or advocate, and the director of the facility where the person is receiving treatment shall be provided with written notification of the capacity determination, which shall include a statement of the evidence relied upon and the reasons for the determination. A copy of the determination shall be submitted to the superior court.
(e)(1)The person who is the subject of the capacity hearing may appeal the determination to the superior court or the court of appeal.
(2)The person who filed the original petition for a capacity hearing may request the district attorney or county counsel in the county where the person is receiving treatment to appeal the determination to the superior court or the court of appeal, on behalf of the state.
(3)Nothing shall prohibit treatment from being initiated pending appeal of a determination of incapacity pursuant to this section.
(4)Nothing in this section shall be construed to preclude the right of a person to bring a writ of habeas corpus pursuant to Section 5275, subject to the provisions of this chapter.
(f)All appeals to the superior court pursuant to this section shall be subject to de novo review.
SEC. 4.Section 5336 of the Welfare and Institutions Code is amended to read:5336.(a)(1)A determination that a person does not have the capacity to refuse treatment with antipsychotic medication made pursuant to Section 5334 during the detention period described in Section 5150 or 5250 shall remain in effect for the duration of the detention period described in Section 5150, and for the duration of the detention period described in Section 5250, or for the duration of both periods together.
(2)Unless otherwise specified, and except as applied to Sections 5150 and 5250, a treating physician may request a hearing for a new determination of a persons capacity to refuse treatment with antipsychotic medication, to be made pursuant to Section 5334, at any time in the 48 hours prior to the end of the duration of the current detention period when it reasonably appears to the treating physician that it is necessary for the person to be detained for a subsequent detention period and the persons capacity has not been restored according to standards developed pursuant to subdivision (c) of Section 5332.
(3)A determination that a person does not have the capacity to refuse treatment with antipsychotic medication pursuant to this section remains in effect until one of the following occurs, whichever occurs first in time:
(A)In the judgment of the persons treating physician, the persons capacity has been restored or the person no longer meets the criteria for involuntary detention, according to standards developed pursuant to subdivision (c) of Section 5332.
(B)The court or hearing officer determines that the persons capacity to refuse treatment with antipsychotic medication is restored.
(C)The time limit for the detention period described in Section 5150, Section 5250, or for the detention period of both periods together, expires.
(b)(1)Under exigent circumstances, an order for treatment with antipsychotic medication made pursuant to Section 5332 shall remain in effect at the beginning of a detention period described in Section 5260, 5270.15, or 5270.70, provided that a petition for a new determination on the question of capacity has been filed pursuant to Section 5334, and shall remain in effect until a hearing on that petition for that detention period is held under the exigent circumstances described by this subdivision and a decision is issued as set forth in Section 5334.
(2)Upon receipt of a petition for a hearing to determine a persons capacity to refuse treatment with antipsychotic medication and attestation of exigent circumstances being documented in the persons medical record pursuant to this subdivision, a hearing shall be held on an expedited basis to determine the persons capacity to refuse treatment with antipsychotic medication as soon as reasonably practicable and within 24 hours.
(3)In any case where an attestation of exigent circumstances is documented in the persons medical record pursuant to this subdivision and an order for treatment with antipsychotic medication made pursuant to Section 5332 remains in effect, the facility where the person is receiving treatment shall report all of the following to the county behavioral health director in the county in which they operate, in a form and manner and in accordance with timelines prescribed by the county behavioral health director:
(A)The date and time when the physician or facility originally filed a petition with the superior court to request a hearing to determine a persons capacity to refuse treatment with antipsychotic medication under this section.
(B)The date when the applicable detention period described in paragraph (1) was scheduled to expire prior to the attestation described in subparagraph (C) of paragraph (6) being documented in the persons medical record.
(C)The date and time when the attestation of exigent circumstances was documented in the persons medical record, as described in subparagraph (C) of paragraph (6).
(D)The reason for the delay of the originally requested capacity hearing, if known, including, but not limited to, the lack of timely scheduling of the hearing, the unavailability of a hearing officer, the unavailability of an attorney or patients rights advocate to represent the person subject to the petition, court closure, the unavailability of remote hearing technology, the unavailability of the person subject to the petition, or the unavailability of facility staff to present the reasons for the petition.
(E)The date and time when the capacity hearing was held on an expedited basis.
(4)(A)County behavioral health directors shall provide the information specified in paragraph (3) to the State Department of Health Care Services.
(B)Each May 1, beginning May 1, 2026, the State Department of Health Care Services shall compile the information it receives from county behavioral health directors pursuant to this paragraph during the prior calendar year, as well as information about the county where the facility that submitted the information is located, and report the information pursuant to the requirements of Section 5402.
(5)This subdivision does not apply to a person whose capacity has been restored according to standards developed pursuant to subdivision (c) of Section 5332 or affect the requirement that a hearing be conducted to determine a persons capacity to refuse treatment with antipsychotic medication within the applicable time limits specified in subdivision (a) of Section 5334, other than to require that such a hearing is held on an expedited basis.
(6)In order for there to be exigent circumstances necessitating an expedited hearing pursuant to this subdivision, all of the following must be true:
(A)A petition for a new determination on the question of capacity pursuant to Section 5334 has been filed prior to the expiration of the current order and in a period of time that provides a reasonable opportunity for a hearing to be held prior to the expiration of the current order and at least eight hours prior to the orders expiration.
(B)There has been a delay in a hearing to determine a persons capacity to refuse treatment with antipsychotic medication made pursuant to Section 5334, creating a risk that the existing capacity determination may expire before a new capacity determination is made.
(C)The persons treating physician documents in a written attestation of exigent circumstances, which shall be maintained in the persons medical record, that one of the following would likely occur if there were a lapse in the persons treatment with antipsychotic medication:
(i)An emergency, as defined in subdivision (m) of Section 5008.
(ii)A serious deterioration or decompensation of the persons mental health condition that could result in significant harm to the person based upon the facts of the persons individual circumstances, which the treating physician documents in their written attestation of exigent circumstances.
(D)The extension of treatment with antipsychotic medication until a new capacity hearing is held on the basis of an attestation of exigent circumstances described in this subdivision shall be invoked for a person only one time during the applicable detention period covered by the existing capacity determination.
(7)This subdivision shall be inoperative on January 1, 2030.
SEC. 5.Section 5402 of the Welfare and Institutions Code is amended to read:5402.(a)The State Department of Health Care Services shall collect data quarterly and publish, on or before May 1 of each year, a report including quantitative, deidentified information concerning the operation of this division. The report shall include an evaluation of the effectiveness of achieving the legislative intent of this part pursuant to Section 5001. Based on information that is available from each county, the report shall include all of the following information:
(1)The number of persons in designated and approved facilities admitted or detained for 72-hour evaluation and treatment, admitted for 14-day and 30-day periods of intensive treatment, and admitted for 180-day postcertification intensive treatment in each county.
(2)The number of persons transferred to mental health facilities pursuant to Section 4011.6 of the Penal Code in each county.
(3)The number of persons for whom temporary conservatorships are established in each county.
(4)The number of persons for whom conservatorships are established in each county.
(5)The number of persons admitted or detained either once, between two and five times, between six and eight times, and greater than eight times for each type of detention, including 72-hour evaluation and treatment, 14-day and 30-day periods of intensive treatment, and 180-day postcertification intensive treatment.
(6)The clinical outcomes for individuals identified in paragraphs (1) to (4), inclusive.
(7)The services provided or offered to individuals identified in paragraphs (1) to (4), inclusive. Data pertaining to services provided or offered to individuals placed on each type of hold shall include, but not be limited to, assessment, evaluation, medication treatment, crisis intervention, and psychiatric and psychological treatment services. Data pertaining to services shall specify the payer information or funding used to pay for services.
(8)The waiting periods for individuals prior to receiving an evaluation in a designated and approved facility pursuant to Section 5150 or 5151 and waiting periods for individuals prior to receiving treatment services in a designated facility, including the reasons for waiting periods. The waiting period shall be calculated from the date and time when the hold began and end on the date and time when the individual received an evaluation or received evaluation and treatment services in a designated facility.
(9)If the source of admission is an emergency department, the date and time of service and release from emergency care.
(10)Demographic data of those receiving care, including age, sex, gender identity, race, ethnicity, primary language, sexual orientation, veteran status, and housing status, to the extent those data are available.
(11)The number of all county-contracted beds.
(12)The number and outcomes of all of the following:
(A)The certification review hearings held pursuant to Section 5256.
(B)The petitions for writs of habeas corpus filed pursuant to Section 5275.
(C)The judicial review hearings held pursuant to Section 5276.
(D)The petitions for capacity hearings filed pursuant to Section 5332.
(E)The capacity hearings held pursuant to Section 5334 in each superior court.
(13)Analysis and evaluation of the efficacy of mental health assessments, detentions, treatments, and supportive services provided both under this part and subsequent to release.
(14)Recommendations for improving mental health assessments, detentions, treatments, and supportive services provided under this part and subsequent to release.
(15)An assessment of the disproportionate use of detentions and conservatorships on various groups, including an assessment of use by the race, ethnicity, gender identity, age group, veteran status, housing status, and Medi-Cal enrollment status of detained and conserved persons. This assessment shall evaluate disproportionate use at the county, regional, and state levels.
(16)An explanation for the absence of any data required pursuant to this section that are not included in the report.
(17)Beginning with the report due May 1, 2025, the report shall also include the progress that has been made on implementing recommendations from prior reports issued under this subdivision.
(18)Beginning with the report due May 1, 2024, the number of persons admitted or detained, including 72-hour evaluations and treatment, 14-day and 30-day periods of intensive treatment, and 180-day postcertification intensive treatment, for each of the following conditions:
(A)Danger to self.
(B)Danger to others.
(C)Grave disability due to a mental health disorder.
(D)Grave disability due to a severe substance use disorder.
(E)Grave disability due to both a mental health disorder and a severe substance use disorder.
(19)(A)Beginning with the report due May 1, 2026, all of the information reported by facilities to county behavioral health directors pursuant to paragraph (3) of subdivision (b) of Section 5336.
(B)This paragraph shall be inoperative on January 1, 2030.
(b)(1)(A)Each county behavioral health director shall provide accurate and complete data to the department in a form and manner, and in accordance with timelines, prescribed by the department.
(B)County behavioral health directors shall provide the data specified in paragraphs (1) to (11), inclusive, of subdivision (a), and any other information, records, and reports that the department deems necessary for the purposes of this section.
(C)Data shall be submitted on a quarterly basis, or more frequently, as required by the department. The department shall not have access to patient name identifiers.
(2)(A)Each designated and approved facility that admits, detains, or provides services to persons pursuant to this part and Part 1.5 (commencing with Section 5585) and each other entity involved in implementing Section 5150 shall collect and provide accurate and complete data to the county behavioral health director in the county in which they operate to meet the reporting obligations specified in paragraphs (1) to (11), inclusive, of subdivision (a) and any other information, records, and reports that the county or the department deems necessary for the purposes of this section.
(B)A county may establish policies and procedures for this paragraph to ensure compliance with the requirements of this section. These facilities and entities shall collect and report data to the county behavioral health director consistent with the countys policies and procedures, if established.
(C)Data shall be submitted to the county behavioral health director on a quarterly basis, or more frequently, as required by the county.
(3)A county behavioral health director shall provide the accurate and complete data it receives pursuant to paragraph (2) to the department pursuant to paragraph (1).
(4)All data submitted to the department by each county behavioral health director shall be transmitted in a secure manner in compliance with all applicable state and federal requirements, including, but not limited to, Section 164.312 of Title 45 of the Code of Federal Regulations.
(c)Information published pursuant to subdivision (a) shall not contain data that may lead to the identification of patients receiving services under this division and shall contain statistical data only. Data published by the department shall be deidentified in compliance with subdivision (b) of Section 164.514 of Title 45 of the Code of Federal Regulations.
(d)The Judicial Council shall provide the department, by October 1 of each year, with data from each superior court to complete the report described in this section, including the number and outcomes of certification review hearings held pursuant to Section 5256, petitions for writs of habeas corpus filed pursuant to Section 5275, judicial review hearings held pursuant to Section 5276, petitions for capacity hearings filed pursuant to Section 5332, and capacity hearings held pursuant to Section 5334 in each superior court. The department shall not have access to patient name identifiers.
(e)The department shall make the report publicly available on the departments internet website.
(f)(1)The department may impose a plan of correction or assess civil money penalties, pursuant to paragraph (3), or both, against a designated and approved facility that fails to submit data on a timely basis or as otherwise required by this section.
(2)The department may impose a plan of correction or assess civil money penalties, pursuant to paragraph (3), or both, against a county that fails to submit data on a timely basis or as otherwise required by this section.
(3)The department may assess civil money penalties against a designated and approved facility or county in the amount of fifty dollars ($50) per day from the date specified in the notice to impose civil money penalties from the department.
(4)(A)A designated and approved facility or county may submit an informal written appeal of a civil money penalty to the department within 30 calendar days of the date of issuance of a notice to impose civil money penalties.
(B)The designated and approved facility or county shall include any supporting documentation and explain any mitigating circumstances.
(C)The department shall make a determination on the appeal within 60 calendar days of receipt of the informal written appeal.
(5)(A)A designated and approved facility or county may request a formal hearing within 30 calendar days following the issuance of the departments final determination on the appeal pursuant to paragraph (4).
(B)All hearings to review the imposition of civil money penalties shall be held pursuant to the procedures set forth in Section 100171 of the Health and Safety Code.
(C)Civil money penalties imposed upon a designated and approved facility or county shall continue to accrue until the effective date of the final decision of the department.
(g)(1)The Lanterman-Petris-Short Act Data and Reporting Oversight Fund is hereby created in the State Treasury.
(2)The Lanterman-Petris-Short Act Data and Reporting Oversight Fund shall be administered by the State Department of Health Care Services.
(3)Civil money penalties assessed and collected pursuant to subdivision (f) shall be deposited into this fund.
(4)(A)Notwithstanding Section 13340 of the Government Code, moneys deposited in the Lanterman-Petris-Short Act Data and Reporting Oversight Fund shall be continuously appropriated, without regard to fiscal year, to the State Department of Health Care Services for the purposes of funding its oversight activities and administrative costs associated with implementing this section.
(B)Notwithstanding any other law, the Controller may use the moneys in the Lanterman-Petris-Short Act Data and Reporting Oversight Fund for cashflow loans to the General Fund as provided in Sections 16310 and 16381 of the Government Code.
(h)Notwithstanding Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code, the department may implement, interpret, or make specific this section, in whole or in part, by means of information notices, provider bulletins, or other similar instructions, without taking any further regulatory action.
(i)The department may enter into exclusive or nonexclusive contracts, or amend existing contracts, on a bid or negotiated basis for purposes of administering or implementing the requirements of this section. Contracts entered into or amended pursuant to this section shall be exempt from Chapter 6 (commencing with Section 14825) of Part 5.5 of Division 3 of Title 2 of the Government Code, Section 19130 of the Government Code, and Part 2 (commencing with Section 10100) of Division 2 of the Public Contract Code, and shall be exempt from the review or approval of any division of the Department of General Services.
SEC. 6.If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.
Any person who is subject to detention pursuant to Section 5150, 5250, 5260, 5270.15, or 5270.70 shall have the right to refuse treatment with antipsychotic medication subject to provisions set forth in this chapter.
SEC. 2.Section 5332 of the Welfare and Institutions Code is amended to read:5332.(a)Antipsychotic medication, as defined in subdivision (l) of Section 5008, may be administered to any person subject to detention pursuant to Section 5150, 5250, 5260, 5270.15, or 5270.70, if that person does not refuse that medication following disclosure of the right to refuse medication as well as information required to be given to persons pursuant to subdivision (e) of Section 5152 and subdivision (b) of Section 5213.
(b)If any person subject to detention pursuant to Section 5150, 5250, 5260, 5270.15, or 5270.70, and for whom antipsychotic medication has been prescribed, orally refuses or gives other indication of refusal of treatment with that medication, the medication shall be administered only when treatment staff have considered and determined that treatment alternatives to involuntary medication are unlikely to meet the needs of the patient, and upon a determination of that persons incapacity to refuse the treatment, in a hearing held for that purpose.
(c)Each hospital in conjunction with the hospital medical staff or any other treatment facility in conjunction with its clinical staff shall develop internal procedures for facilitating the filing of petitions for capacity hearings and other activities required pursuant to this chapter.
(d)When a person is subject to detention pursuant to Section 5150, 5250, 5260, 5270.15, or 5270.70, the agency or facility providing the treatment shall acquire the persons medication history, if possible.
(e)In the case of an emergency, as defined in subdivision (m) of Section 5008, a person detained pursuant to Section 5150, 5250, 5260, 5270.15, or 5270.70 may be treated with antipsychotic medication over the persons objection prior to a capacity hearing, but only with antipsychotic medication that is required to treat the emergency condition, which shall be provided in the manner least restrictive to the personal liberty of the patient. It is not necessary for harm to take place or become unavoidable prior to intervention.
SEC. 3.Section 5334 of the Welfare and Institutions Code is amended to read:5334.(a)(1)Capacity hearings required by Section 5332 shall be heard within 24 hours of the filing of the petition whenever possible. However, if any party needs additional time to prepare for the hearing, the hearing shall be postponed for 24 hours. In case of hardship, hearings may also be postponed for an additional 24 hours, pursuant to local policy developed by the county mental health director and the presiding judge of the superior court regarding the scheduling of hearings. The policy developed pursuant to this subdivision shall specify procedures for the prompt filing and processing of petitions to ensure that the deadlines set forth in this section are met, and shall take into consideration the availability of advocates and the treatment needs of the patient. In no event shall hearings be held beyond 72 hours of the filing of the petition. The person who is the subject of the petition and the persons advocate or counsel shall receive a copy of the petition at the time it is filed.
(2)(A)Under exigent circumstances, upon the filing of a petition for a hearing to determine a persons capacity to refuse treatment with antipsychotic medication and an attestation of exigent circumstances being documented in a persons medical record pursuant to subdivision (b) of Section 5336, a hearing shall be held to determine the persons capacity to refuse treatment with antipsychotic medication on an expedited basis and as soon as reasonably practicable.
(B)This paragraph shall be inoperative on January 1, 2030.
(b)(1)Capacity hearings shall be held in an appropriate location at the facility where the person is receiving treatment, and shall be held in a manner compatible with, and the least disruptive of, the treatment being provided to the person.
(2)Subject to any applicable rules of court, a capacity hearing may be conducted by remote means in an appropriate location at the facility where the person is receiving treatment as authorized pursuant to Section 367.76 of the Code of Civil Procedure, so long as the hearing would be compatible with, and be the least disruptive of, the treatment being provided to the person, as required by paragraph (1).
(c)Capacity hearings shall be conducted by a superior court judge, a court-appointed commissioner or referee, or a court-appointed hearing officer. All commissioners, referees, and hearing officers shall be appointed by the superior court from a list of attorneys unanimously approved by a panel composed of the local mental health director, the county public defender, and the county counsel or district attorney designated by the county board of supervisors. No employee of the county mental health program or of any facility designated by the county and approved by the department as a facility for 72-hour treatment and evaluation may serve as a hearing officer. All hearing officers shall receive training in the issues specific to capacity hearings.
(d)The person who is the subject of the capacity hearing shall be given oral notification of the determination at the conclusion of the capacity hearing. As soon thereafter as is practicable, the person, the persons counsel or advocate, and the director of the facility where the person is receiving treatment shall be provided with written notification of the capacity determination, which shall include a statement of the evidence relied upon and the reasons for the determination. A copy of the determination shall be submitted to the superior court.
(e)(1)The person who is the subject of the capacity hearing may appeal the determination to the superior court or the court of appeal.
(2)The person who filed the original petition for a capacity hearing may request the district attorney or county counsel in the county where the person is receiving treatment to appeal the determination to the superior court or the court of appeal, on behalf of the state.
(3)Nothing shall prohibit treatment from being initiated pending appeal of a determination of incapacity pursuant to this section.
(4)Nothing in this section shall be construed to preclude the right of a person to bring a writ of habeas corpus pursuant to Section 5275, subject to the provisions of this chapter.
(f)All appeals to the superior court pursuant to this section shall be subject to de novo review.
SEC. 4.Section 5336 of the Welfare and Institutions Code is amended to read:5336.(a)(1)A determination that a person does not have the capacity to refuse treatment with antipsychotic medication made pursuant to Section 5334 during the detention period described in Section 5150 or 5250 shall remain in effect for the duration of the detention period described in Section 5150, and for the duration of the detention period described in Section 5250, or for the duration of both periods together.
(2)Unless otherwise specified, and except as applied to Sections 5150 and 5250, a treating physician may request a hearing for a new determination of a persons capacity to refuse treatment with antipsychotic medication, to be made pursuant to Section 5334, at any time in the 48 hours prior to the end of the duration of the current detention period when it reasonably appears to the treating physician that it is necessary for the person to be detained for a subsequent detention period and the persons capacity has not been restored according to standards developed pursuant to subdivision (c) of Section 5332.
(3)A determination that a person does not have the capacity to refuse treatment with antipsychotic medication pursuant to this section remains in effect until one of the following occurs, whichever occurs first in time:
(A)In the judgment of the persons treating physician, the persons capacity has been restored or the person no longer meets the criteria for involuntary detention, according to standards developed pursuant to subdivision (c) of Section 5332.
(B)The court or hearing officer determines that the persons capacity to refuse treatment with antipsychotic medication is restored.
(C)The time limit for the detention period described in Section 5150, Section 5250, or for the detention period of both periods together, expires.
(b)(1)Under exigent circumstances, an order for treatment with antipsychotic medication made pursuant to Section 5332 shall remain in effect at the beginning of a detention period described in Section 5260, 5270.15, or 5270.70, provided that a petition for a new determination on the question of capacity has been filed pursuant to Section 5334, and shall remain in effect until a hearing on that petition for that detention period is held under the exigent circumstances described by this subdivision and a decision is issued as set forth in Section 5334.
(2)Upon receipt of a petition for a hearing to determine a persons capacity to refuse treatment with antipsychotic medication and attestation of exigent circumstances being documented in the persons medical record pursuant to this subdivision, a hearing shall be held on an expedited basis to determine the persons capacity to refuse treatment with antipsychotic medication as soon as reasonably practicable and within 24 hours.
(3)In any case where an attestation of exigent circumstances is documented in the persons medical record pursuant to this subdivision and an order for treatment with antipsychotic medication made pursuant to Section 5332 remains in effect, the facility where the person is receiving treatment shall report all of the following to the county behavioral health director in the county in which they operate, in a form and manner and in accordance with timelines prescribed by the county behavioral health director:
(A)The date and time when the physician or facility originally filed a petition with the superior court to request a hearing to determine a persons capacity to refuse treatment with antipsychotic medication under this section.
(B)The date when the applicable detention period described in paragraph (1) was scheduled to expire prior to the attestation described in subparagraph (C) of paragraph (6) being documented in the persons medical record.
(C)The date and time when the attestation of exigent circumstances was documented in the persons medical record, as described in subparagraph (C) of paragraph (6).
(D)The reason for the delay of the originally requested capacity hearing, if known, including, but not limited to, the lack of timely scheduling of the hearing, the unavailability of a hearing officer, the unavailability of an attorney or patients rights advocate to represent the person subject to the petition, court closure, the unavailability of remote hearing technology, the unavailability of the person subject to the petition, or the unavailability of facility staff to present the reasons for the petition.
(E)The date and time when the capacity hearing was held on an expedited basis.
(4)(A)County behavioral health directors shall provide the information specified in paragraph (3) to the State Department of Health Care Services.
(B)Each May 1, beginning May 1, 2026, the State Department of Health Care Services shall compile the information it receives from county behavioral health directors pursuant to this paragraph during the prior calendar year, as well as information about the county where the facility that submitted the information is located, and report the information pursuant to the requirements of Section 5402.
(5)This subdivision does not apply to a person whose capacity has been restored according to standards developed pursuant to subdivision (c) of Section 5332 or affect the requirement that a hearing be conducted to determine a persons capacity to refuse treatment with antipsychotic medication within the applicable time limits specified in subdivision (a) of Section 5334, other than to require that such a hearing is held on an expedited basis.
(6)In order for there to be exigent circumstances necessitating an expedited hearing pursuant to this subdivision, all of the following must be true:
(A)A petition for a new determination on the question of capacity pursuant to Section 5334 has been filed prior to the expiration of the current order and in a period of time that provides a reasonable opportunity for a hearing to be held prior to the expiration of the current order and at least eight hours prior to the orders expiration.
(B)There has been a delay in a hearing to determine a persons capacity to refuse treatment with antipsychotic medication made pursuant to Section 5334, creating a risk that the existing capacity determination may expire before a new capacity determination is made.
(C)The persons treating physician documents in a written attestation of exigent circumstances, which shall be maintained in the persons medical record, that one of the following would likely occur if there were a lapse in the persons treatment with antipsychotic medication:
(i)An emergency, as defined in subdivision (m) of Section 5008.
(ii)A serious deterioration or decompensation of the persons mental health condition that could result in significant harm to the person based upon the facts of the persons individual circumstances, which the treating physician documents in their written attestation of exigent circumstances.
(D)The extension of treatment with antipsychotic medication until a new capacity hearing is held on the basis of an attestation of exigent circumstances described in this subdivision shall be invoked for a person only one time during the applicable detention period covered by the existing capacity determination.
(7)This subdivision shall be inoperative on January 1, 2030.
SEC. 5.Section 5402 of the Welfare and Institutions Code is amended to read:5402.(a)The State Department of Health Care Services shall collect data quarterly and publish, on or before May 1 of each year, a report including quantitative, deidentified information concerning the operation of this division. The report shall include an evaluation of the effectiveness of achieving the legislative intent of this part pursuant to Section 5001. Based on information that is available from each county, the report shall include all of the following information:
(1)The number of persons in designated and approved facilities admitted or detained for 72-hour evaluation and treatment, admitted for 14-day and 30-day periods of intensive treatment, and admitted for 180-day postcertification intensive treatment in each county.
(2)The number of persons transferred to mental health facilities pursuant to Section 4011.6 of the Penal Code in each county.
(3)The number of persons for whom temporary conservatorships are established in each county.
(4)The number of persons for whom conservatorships are established in each county.
(5)The number of persons admitted or detained either once, between two and five times, between six and eight times, and greater than eight times for each type of detention, including 72-hour evaluation and treatment, 14-day and 30-day periods of intensive treatment, and 180-day postcertification intensive treatment.
(6)The clinical outcomes for individuals identified in paragraphs (1) to (4), inclusive.
(7)The services provided or offered to individuals identified in paragraphs (1) to (4), inclusive. Data pertaining to services provided or offered to individuals placed on each type of hold shall include, but not be limited to, assessment, evaluation, medication treatment, crisis intervention, and psychiatric and psychological treatment services. Data pertaining to services shall specify the payer information or funding used to pay for services.
(8)The waiting periods for individuals prior to receiving an evaluation in a designated and approved facility pursuant to Section 5150 or 5151 and waiting periods for individuals prior to receiving treatment services in a designated facility, including the reasons for waiting periods. The waiting period shall be calculated from the date and time when the hold began and end on the date and time when the individual received an evaluation or received evaluation and treatment services in a designated facility.
(9)If the source of admission is an emergency department, the date and time of service and release from emergency care.
(10)Demographic data of those receiving care, including age, sex, gender identity, race, ethnicity, primary language, sexual orientation, veteran status, and housing status, to the extent those data are available.
(11)The number of all county-contracted beds.
(12)The number and outcomes of all of the following:
(A)The certification review hearings held pursuant to Section 5256.
(B)The petitions for writs of habeas corpus filed pursuant to Section 5275.
(C)The judicial review hearings held pursuant to Section 5276.
(D)The petitions for capacity hearings filed pursuant to Section 5332.
(E)The capacity hearings held pursuant to Section 5334 in each superior court.
(13)Analysis and evaluation of the efficacy of mental health assessments, detentions, treatments, and supportive services provided both under this part and subsequent to release.
(14)Recommendations for improving mental health assessments, detentions, treatments, and supportive services provided under this part and subsequent to release.
(15)An assessment of the disproportionate use of detentions and conservatorships on various groups, including an assessment of use by the race, ethnicity, gender identity, age group, veteran status, housing status, and Medi-Cal enrollment status of detained and conserved persons. This assessment shall evaluate disproportionate use at the county, regional, and state levels.
(16)An explanation for the absence of any data required pursuant to this section that are not included in the report.
(17)Beginning with the report due May 1, 2025, the report shall also include the progress that has been made on implementing recommendations from prior reports issued under this subdivision.
(18)Beginning with the report due May 1, 2024, the number of persons admitted or detained, including 72-hour evaluations and treatment, 14-day and 30-day periods of intensive treatment, and 180-day postcertification intensive treatment, for each of the following conditions:
(A)Danger to self.
(B)Danger to others.
(C)Grave disability due to a mental health disorder.
(D)Grave disability due to a severe substance use disorder.
(E)Grave disability due to both a mental health disorder and a severe substance use disorder.
(19)(A)Beginning with the report due May 1, 2026, all of the information reported by facilities to county behavioral health directors pursuant to paragraph (3) of subdivision (b) of Section 5336.
(B)This paragraph shall be inoperative on January 1, 2030.
(b)(1)(A)Each county behavioral health director shall provide accurate and complete data to the department in a form and manner, and in accordance with timelines, prescribed by the department.
(B)County behavioral health directors shall provide the data specified in paragraphs (1) to (11), inclusive, of subdivision (a), and any other information, records, and reports that the department deems necessary for the purposes of this section.
(C)Data shall be submitted on a quarterly basis, or more frequently, as required by the department. The department shall not have access to patient name identifiers.
(2)(A)Each designated and approved facility that admits, detains, or provides services to persons pursuant to this part and Part 1.5 (commencing with Section 5585) and each other entity involved in implementing Section 5150 shall collect and provide accurate and complete data to the county behavioral health director in the county in which they operate to meet the reporting obligations specified in paragraphs (1) to (11), inclusive, of subdivision (a) and any other information, records, and reports that the county or the department deems necessary for the purposes of this section.
(B)A county may establish policies and procedures for this paragraph to ensure compliance with the requirements of this section. These facilities and entities shall collect and report data to the county behavioral health director consistent with the countys policies and procedures, if established.
(C)Data shall be submitted to the county behavioral health director on a quarterly basis, or more frequently, as required by the county.
(3)A county behavioral health director shall provide the accurate and complete data it receives pursuant to paragraph (2) to the department pursuant to paragraph (1).
(4)All data submitted to the department by each county behavioral health director shall be transmitted in a secure manner in compliance with all applicable state and federal requirements, including, but not limited to, Section 164.312 of Title 45 of the Code of Federal Regulations.
(c)Information published pursuant to subdivision (a) shall not contain data that may lead to the identification of patients receiving services under this division and shall contain statistical data only. Data published by the department shall be deidentified in compliance with subdivision (b) of Section 164.514 of Title 45 of the Code of Federal Regulations.
(d)The Judicial Council shall provide the department, by October 1 of each year, with data from each superior court to complete the report described in this section, including the number and outcomes of certification review hearings held pursuant to Section 5256, petitions for writs of habeas corpus filed pursuant to Section 5275, judicial review hearings held pursuant to Section 5276, petitions for capacity hearings filed pursuant to Section 5332, and capacity hearings held pursuant to Section 5334 in each superior court. The department shall not have access to patient name identifiers.
(e)The department shall make the report publicly available on the departments internet website.
(f)(1)The department may impose a plan of correction or assess civil money penalties, pursuant to paragraph (3), or both, against a designated and approved facility that fails to submit data on a timely basis or as otherwise required by this section.
(2)The department may impose a plan of correction or assess civil money penalties, pursuant to paragraph (3), or both, against a county that fails to submit data on a timely basis or as otherwise required by this section.
(3)The department may assess civil money penalties against a designated and approved facility or county in the amount of fifty dollars ($50) per day from the date specified in the notice to impose civil money penalties from the department.
(4)(A)A designated and approved facility or county may submit an informal written appeal of a civil money penalty to the department within 30 calendar days of the date of issuance of a notice to impose civil money penalties.
(B)The designated and approved facility or county shall include any supporting documentation and explain any mitigating circumstances.
(C)The department shall make a determination on the appeal within 60 calendar days of receipt of the informal written appeal.
(5)(A)A designated and approved facility or county may request a formal hearing within 30 calendar days following the issuance of the departments final determination on the appeal pursuant to paragraph (4).
(B)All hearings to review the imposition of civil money penalties shall be held pursuant to the procedures set forth in Section 100171 of the Health and Safety Code.
(C)Civil money penalties imposed upon a designated and approved facility or county shall continue to accrue until the effective date of the final decision of the department.
(g)(1)The Lanterman-Petris-Short Act Data and Reporting Oversight Fund is hereby created in the State Treasury.
(2)The Lanterman-Petris-Short Act Data and Reporting Oversight Fund shall be administered by the State Department of Health Care Services.
(3)Civil money penalties assessed and collected pursuant to subdivision (f) shall be deposited into this fund.
(4)(A)Notwithstanding Section 13340 of the Government Code, moneys deposited in the Lanterman-Petris-Short Act Data and Reporting Oversight Fund shall be continuously appropriated, without regard to fiscal year, to the State Department of Health Care Services for the purposes of funding its oversight activities and administrative costs associated with implementing this section.
(B)Notwithstanding any other law, the Controller may use the moneys in the Lanterman-Petris-Short Act Data and Reporting Oversight Fund for cashflow loans to the General Fund as provided in Sections 16310 and 16381 of the Government Code.
(h)Notwithstanding Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code, the department may implement, interpret, or make specific this section, in whole or in part, by means of information notices, provider bulletins, or other similar instructions, without taking any further regulatory action.
(i)The department may enter into exclusive or nonexclusive contracts, or amend existing contracts, on a bid or negotiated basis for purposes of administering or implementing the requirements of this section. Contracts entered into or amended pursuant to this section shall be exempt from Chapter 6 (commencing with Section 14825) of Part 5.5 of Division 3 of Title 2 of the Government Code, Section 19130 of the Government Code, and Part 2 (commencing with Section 10100) of Division 2 of the Public Contract Code, and shall be exempt from the review or approval of any division of the Department of General Services.
SEC. 6.If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.
Any person who is subject to detention pursuant to Section 5150, 5250, 5260, 5270.15, or 5270.70 shall have the right to refuse treatment with antipsychotic medication subject to provisions set forth in this chapter.
SEC. 2.Section 5332 of the Welfare and Institutions Code is amended to read:5332.(a)Antipsychotic medication, as defined in subdivision (l) of Section 5008, may be administered to any person subject to detention pursuant to Section 5150, 5250, 5260, 5270.15, or 5270.70, if that person does not refuse that medication following disclosure of the right to refuse medication as well as information required to be given to persons pursuant to subdivision (e) of Section 5152 and subdivision (b) of Section 5213.
(b)If any person subject to detention pursuant to Section 5150, 5250, 5260, 5270.15, or 5270.70, and for whom antipsychotic medication has been prescribed, orally refuses or gives other indication of refusal of treatment with that medication, the medication shall be administered only when treatment staff have considered and determined that treatment alternatives to involuntary medication are unlikely to meet the needs of the patient, and upon a determination of that persons incapacity to refuse the treatment, in a hearing held for that purpose.
(c)Each hospital in conjunction with the hospital medical staff or any other treatment facility in conjunction with its clinical staff shall develop internal procedures for facilitating the filing of petitions for capacity hearings and other activities required pursuant to this chapter.
(d)When a person is subject to detention pursuant to Section 5150, 5250, 5260, 5270.15, or 5270.70, the agency or facility providing the treatment shall acquire the persons medication history, if possible.
(e)In the case of an emergency, as defined in subdivision (m) of Section 5008, a person detained pursuant to Section 5150, 5250, 5260, 5270.15, or 5270.70 may be treated with antipsychotic medication over the persons objection prior to a capacity hearing, but only with antipsychotic medication that is required to treat the emergency condition, which shall be provided in the manner least restrictive to the personal liberty of the patient. It is not necessary for harm to take place or become unavoidable prior to intervention.
SEC. 3.Section 5334 of the Welfare and Institutions Code is amended to read:5334.(a)(1)Capacity hearings required by Section 5332 shall be heard within 24 hours of the filing of the petition whenever possible. However, if any party needs additional time to prepare for the hearing, the hearing shall be postponed for 24 hours. In case of hardship, hearings may also be postponed for an additional 24 hours, pursuant to local policy developed by the county mental health director and the presiding judge of the superior court regarding the scheduling of hearings. The policy developed pursuant to this subdivision shall specify procedures for the prompt filing and processing of petitions to ensure that the deadlines set forth in this section are met, and shall take into consideration the availability of advocates and the treatment needs of the patient. In no event shall hearings be held beyond 72 hours of the filing of the petition. The person who is the subject of the petition and the persons advocate or counsel shall receive a copy of the petition at the time it is filed.
(2)(A)Under exigent circumstances, upon the filing of a petition for a hearing to determine a persons capacity to refuse treatment with antipsychotic medication and an attestation of exigent circumstances being documented in a persons medical record pursuant to subdivision (b) of Section 5336, a hearing shall be held to determine the persons capacity to refuse treatment with antipsychotic medication on an expedited basis and as soon as reasonably practicable.
(B)This paragraph shall be inoperative on January 1, 2030.
(b)(1)Capacity hearings shall be held in an appropriate location at the facility where the person is receiving treatment, and shall be held in a manner compatible with, and the least disruptive of, the treatment being provided to the person.
(2)Subject to any applicable rules of court, a capacity hearing may be conducted by remote means in an appropriate location at the facility where the person is receiving treatment as authorized pursuant to Section 367.76 of the Code of Civil Procedure, so long as the hearing would be compatible with, and be the least disruptive of, the treatment being provided to the person, as required by paragraph (1).
(c)Capacity hearings shall be conducted by a superior court judge, a court-appointed commissioner or referee, or a court-appointed hearing officer. All commissioners, referees, and hearing officers shall be appointed by the superior court from a list of attorneys unanimously approved by a panel composed of the local mental health director, the county public defender, and the county counsel or district attorney designated by the county board of supervisors. No employee of the county mental health program or of any facility designated by the county and approved by the department as a facility for 72-hour treatment and evaluation may serve as a hearing officer. All hearing officers shall receive training in the issues specific to capacity hearings.
(d)The person who is the subject of the capacity hearing shall be given oral notification of the determination at the conclusion of the capacity hearing. As soon thereafter as is practicable, the person, the persons counsel or advocate, and the director of the facility where the person is receiving treatment shall be provided with written notification of the capacity determination, which shall include a statement of the evidence relied upon and the reasons for the determination. A copy of the determination shall be submitted to the superior court.
(e)(1)The person who is the subject of the capacity hearing may appeal the determination to the superior court or the court of appeal.
(2)The person who filed the original petition for a capacity hearing may request the district attorney or county counsel in the county where the person is receiving treatment to appeal the determination to the superior court or the court of appeal, on behalf of the state.
(3)Nothing shall prohibit treatment from being initiated pending appeal of a determination of incapacity pursuant to this section.
(4)Nothing in this section shall be construed to preclude the right of a person to bring a writ of habeas corpus pursuant to Section 5275, subject to the provisions of this chapter.
(f)All appeals to the superior court pursuant to this section shall be subject to de novo review.
SEC. 4.Section 5336 of the Welfare and Institutions Code is amended to read:5336.(a)(1)A determination that a person does not have the capacity to refuse treatment with antipsychotic medication made pursuant to Section 5334 during the detention period described in Section 5150 or 5250 shall remain in effect for the duration of the detention period described in Section 5150, and for the duration of the detention period described in Section 5250, or for the duration of both periods together.
(2)Unless otherwise specified, and except as applied to Sections 5150 and 5250, a treating physician may request a hearing for a new determination of a persons capacity to refuse treatment with antipsychotic medication, to be made pursuant to Section 5334, at any time in the 48 hours prior to the end of the duration of the current detention period when it reasonably appears to the treating physician that it is necessary for the person to be detained for a subsequent detention period and the persons capacity has not been restored according to standards developed pursuant to subdivision (c) of Section 5332.
(3)A determination that a person does not have the capacity to refuse treatment with antipsychotic medication pursuant to this section remains in effect until one of the following occurs, whichever occurs first in time:
(A)In the judgment of the persons treating physician, the persons capacity has been restored or the person no longer meets the criteria for involuntary detention, according to standards developed pursuant to subdivision (c) of Section 5332.
(B)The court or hearing officer determines that the persons capacity to refuse treatment with antipsychotic medication is restored.
(C)The time limit for the detention period described in Section 5150, Section 5250, or for the detention period of both periods together, expires.
(b)(1)Under exigent circumstances, an order for treatment with antipsychotic medication made pursuant to Section 5332 shall remain in effect at the beginning of a detention period described in Section 5260, 5270.15, or 5270.70, provided that a petition for a new determination on the question of capacity has been filed pursuant to Section 5334, and shall remain in effect until a hearing on that petition for that detention period is held under the exigent circumstances described by this subdivision and a decision is issued as set forth in Section 5334.
(2)Upon receipt of a petition for a hearing to determine a persons capacity to refuse treatment with antipsychotic medication and attestation of exigent circumstances being documented in the persons medical record pursuant to this subdivision, a hearing shall be held on an expedited basis to determine the persons capacity to refuse treatment with antipsychotic medication as soon as reasonably practicable and within 24 hours.
(3)In any case where an attestation of exigent circumstances is documented in the persons medical record pursuant to this subdivision and an order for treatment with antipsychotic medication made pursuant to Section 5332 remains in effect, the facility where the person is receiving treatment shall report all of the following to the State Department of Health Care Services after the capacity hearing is held on an expedited basis: county behavioral health director in the county in which they operate, in a form and manner and in accordance with timelines prescribed by the county behavioral health director:
(A)The date and time when the physician or facility originally submitted filed a petition with the superior court to request a hearing to determine a persons capacity to refuse treatment with antipsychotic medication under this section.
(B)The date when the applicable detention period described in paragraph (1) was scheduled to expire prior to the attestation described in subparagraph (C) of paragraph (6) being submitted. documented in the persons medical record.
(C)The date and time when the attestation of exigent circumstances was documented in the persons medical record, as described in subparagraph (C) of paragraph (6).
(D)The reason for the delay of the originally requested capacity hearing, if known, including, but not limited to, the lack of timely scheduling of the hearing, the unavailability of a hearing officer, the unavailability of an attorney or patients rights advocate to represent the person subject to the petition, court closure, or the unavailability of remote hearing technology, the person, or facility staff. the unavailability of the person subject to the petition, or the unavailability of facility staff to present the reasons for the petition.
(E)The date and time when the capacity hearing was held on an expedited basis.
(4)(A)County behavioral health directors shall provide the information specified in paragraph (3) to the State Department of Health Care Services.
(4)(B)Each May 1, beginning May 1, 2026, the State Department of Health Care Services shall compile the information it receives from facilities county behavioral health directors pursuant to this subdivision paragraph during the prior calendar year, as well as information about the county or city and county where the facility that submitted the information is located, and report the information pursuant to the requirements of Section 5402.
(5)This subdivision does not apply to a person whose capacity has been restored according to standards developed pursuant to subdivision (c) of Section 5332 or affect the requirement that a hearing be conducted to determine a persons capacity to refuse treatment with antipsychotic medication within the applicable time limits specified in subdivision (a) of Section 5334, other than to require that such a hearing is held on an expedited basis.
(6)In order for there to be exigent circumstances necessitating an expedited hearing pursuant to this subdivision, all of the following must be true:
(A)A petition for a new determination on the question of capacity pursuant to Section 5334 has been filed prior to the expiration of the current order and in a period of time that provides a reasonable opportunity for a hearing to be held prior to the expiration of the current order and at least eight hours prior to the orders expiration.
(B)There has been a delay in a hearing to determine a persons capacity to refuse treatment with antipsychotic medication made pursuant to Section 5334, creating a risk that the existing capacity determination may expire before a new capacity determination is made.
(C)The persons treating physician documents in a written attestation of exigent circumstances, which shall be maintained in the persons medical record, that one of the following would likely occur if there were a lapse in the persons treatment with antipsychotic medication:
(i)An emergency, as defined in subdivision (m) of Section 5008.
(ii)A serious deterioration or decompensation of the persons mental health condition that could result in significant harm to the person based upon the facts of the persons individual circumstances, which the treating physician documents in their written attestation of exigent circumstances.
(D)The extension of treatment with antipsychotic medication until a new capacity hearing is held on the basis of an attestation of exigent circumstances described in this subdivision shall be invoked for a person only one time during the applicable detention period covered by the existing capacity determination.
(7)This subdivision shall be inoperative on January 1, 2030.
SEC. 5.Section 5402 of the Welfare and Institutions Code is amended to read:5402.(a)The State Department of Health Care Services shall collect data quarterly and publish, on or before May 1 of each year, a report including quantitative, deidentified information concerning the operation of this division. The report shall include an evaluation of the effectiveness of achieving the legislative intent of this part pursuant to Section 5001. Based on information that is available from each county, the report shall include all of the following information:
(1)The number of persons in designated and approved facilities admitted or detained for 72-hour evaluation and treatment, admitted for 14-day and 30-day periods of intensive treatment, and admitted for 180-day postcertification intensive treatment in each county.
(2)The number of persons transferred to mental health facilities pursuant to Section 4011.6 of the Penal Code in each county.
(3)The number of persons for whom temporary conservatorships are established in each county.
(4)The number of persons for whom conservatorships are established in each county.
(5)The number of persons admitted or detained either once, between two and five times, between six and eight times, and greater than eight times for each type of detention, including 72-hour evaluation and treatment, 14-day and 30-day periods of intensive treatment, and 180-day postcertification intensive treatment.
(6)The clinical outcomes for individuals identified in paragraphs (1) to (4), inclusive.
(7)The services provided or offered to individuals identified in paragraphs (1) to (4), inclusive. Data pertaining to services provided or offered to individuals placed on each type of hold shall include, but not be limited to, assessment, evaluation, medication treatment, crisis intervention, and psychiatric and psychological treatment services. Data pertaining to services shall specify the payer information or funding used to pay for services.
(8)The waiting periods for individuals prior to receiving an evaluation in a designated and approved facility pursuant to Section 5150 or 5151 and waiting periods for individuals prior to receiving treatment services in a designated facility, including the reasons for waiting periods. The waiting period shall be calculated from the date and time when the hold began and end on the date and time when the individual received an evaluation or received evaluation and treatment services in a designated facility.
(9)If the source of admission is an emergency department, the date and time of service and release from emergency care.
(10)Demographic data of those receiving care, including age, sex, gender identity, race, ethnicity, primary language, sexual orientation, veteran status, and housing status, to the extent those data are available.
(11)The number of all county-contracted beds.
(12)The number and outcomes of all of the following:
(A)The certification review hearings held pursuant to Section 5256.
(B)The petitions for writs of habeas corpus filed pursuant to Section 5275.
(C)The judicial review hearings held pursuant to Section 5276.
(D)The petitions for capacity hearings filed pursuant to Section 5332.
(E)The capacity hearings held pursuant to Section 5334 in each superior court.
(13)Analysis and evaluation of the efficacy of mental health assessments, detentions, treatments, and supportive services provided both under this part and subsequent to release.
(14)Recommendations for improving mental health assessments, detentions, treatments, and supportive services provided under this part and subsequent to release.
(15)An assessment of the disproportionate use of detentions and conservatorships on various groups, including an assessment of use by the race, ethnicity, gender identity, age group, veteran status, housing status, and Medi-Cal enrollment status of detained and conserved persons. This assessment shall evaluate disproportionate use at the county, regional, and state levels.
(16)An explanation for the absence of any data required pursuant to this section that are not included in the report.
(17)Beginning with the report due May 1, 2025, the report shall also include the progress that has been made on implementing recommendations from prior reports issued under this subdivision.
(18)Beginning with the report due May 1, 2024, the number of persons admitted or detained, including 72-hour evaluations and treatment, 14-day and 30-day periods of intensive treatment, and 180-day postcertification intensive treatment, for each of the following conditions:
(A)Danger to self.
(B)Danger to others.
(C)Grave disability due to a mental health disorder.
(D)Grave disability due to a severe substance use disorder.
(E)Grave disability due to both a mental health disorder and a severe substance use disorder.
(19)(A)Beginning with the report due May 1, 2026, all of the information reported by a facility facilities to county behavioral health directors pursuant to paragraph (3) of subdivision (b) of Section 5336.
(B)This paragraph shall be inoperative on January 1, 2030.
(b)(1)(A)Each county behavioral health director shall provide accurate and complete data to the department in a form and manner, and in accordance with timelines, prescribed by the department.
(B)County behavioral health directors shall provide the data specified in paragraphs (1) to (11), inclusive, of subdivision (a), and any other information, records, and reports that the department deems necessary for the purposes of this section.
(C)Data shall be submitted on a quarterly basis, or more frequently, as required by the department. The department shall not have access to patient name identifiers.
(2)(A)Each designated and approved facility that admits, detains, or provides services to persons pursuant to this part and Part 1.5 (commencing with Section 5585) and each other entity involved in implementing Section 5150 shall collect and provide accurate and complete data to the county behavioral health director in the county in which they operate to meet the reporting obligations specified in paragraphs (1) to (11), inclusive, of subdivision (a) and any other information, records, and reports that the county or the department deems necessary for the purposes of this section.
(B)A county may establish policies and procedures for this paragraph to ensure compliance with the requirements of this section. These facilities and entities shall collect and report data to the county behavioral health director consistent with the countys policies and procedures, if established.
(C)Data shall be submitted to the county behavioral health director on a quarterly basis, or more frequently, as required by the county.
(3)A county behavioral health director shall provide the accurate and complete data it receives pursuant to paragraph (2) to the department pursuant to paragraph (1).
(4)All data submitted to the department by each county behavioral health director shall be transmitted in a secure manner in compliance with all applicable state and federal requirements, including, but not limited to, Section 164.312 of Title 45 of the Code of Federal Regulations.
(c)Information published pursuant to subdivision (a) shall not contain data that may lead to the identification of patients receiving services under this division and shall contain statistical data only. Data published by the department shall be deidentified in compliance with subdivision (b) of Section 164.514 of Title 45 of the Code of Federal Regulations.
(d)The Judicial Council shall provide the department, by October 1 of each year, with data from each superior court to complete the report described in this section, including the number and outcomes of certification review hearings held pursuant to Section 5256, petitions for writs of habeas corpus filed pursuant to Section 5275, judicial review hearings held pursuant to Section 5276, petitions for capacity hearings filed pursuant to Section 5332, and capacity hearings held pursuant to Section 5334 in each superior court. The department shall not have access to patient name identifiers.
(e)The department shall make the report publicly available on the departments internet website.
(f)(1)The department may impose a plan of correction or assess civil money penalties, pursuant to paragraph (3), or both, against a designated and approved facility that fails to submit data on a timely basis or as otherwise required by this section.
(2)The department may impose a plan of correction or assess civil money penalties, pursuant to paragraph (3), or both, against a county that fails to submit data on a timely basis or as otherwise required by this section.
(3)The department may assess civil money penalties against a designated and approved facility or county in the amount of fifty dollars ($50) per day from the date specified in the notice to impose civil money penalties from the department.
(4)(A)A designated and approved facility or county may submit an informal written appeal of a civil money penalty to the department within 30 calendar days of the date of issuance of a notice to impose civil money penalties.
(B)The designated and approved facility or county shall include any supporting documentation and explain any mitigating circumstances.
(C)The department shall make a determination on the appeal within 60 calendar days of receipt of the informal written appeal.
(5)(A)A designated and approved facility or county may request a formal hearing within 30 calendar days following the issuance of the departments final determination on the appeal pursuant to paragraph (4).
(B)All hearings to review the imposition of civil money penalties shall be held pursuant to the procedures set forth in Section 100171 of the Health and Safety Code.
(C)Civil money penalties imposed upon a designated and approved facility or county shall continue to accrue until the effective date of the final decision of the department.
(g)(1)The Lanterman-Petris-Short Act Data and Reporting Oversight Fund is hereby created in the State Treasury.
(2)The Lanterman-Petris-Short Act Data and Reporting Oversight Fund shall be administered by the State Department of Health Care Services.
(3)Civil money penalties assessed and collected pursuant to subdivision (f) shall be deposited into this fund.
(4)(A)Notwithstanding Section 13340 of the Government Code, moneys deposited in the Lanterman-Petris-Short Act Data and Reporting Oversight Fund shall be continuously appropriated, without regard to fiscal year, to the State Department of Health Care Services for the purposes of funding its oversight activities and administrative costs associated with implementing this section.
(B)Notwithstanding any other law, the Controller may use the moneys in the Lanterman-Petris-Short Act Data and Reporting Oversight Fund for cashflow loans to the General Fund as provided in Sections 16310 and 16381 of the Government Code.
(h)Notwithstanding Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code, the department may implement, interpret, or make specific this section, in whole or in part, by means of information notices, provider bulletins, or other similar instructions, without taking any further regulatory action.
(i)The department may enter into exclusive or nonexclusive contracts, or amend existing contracts, on a bid or negotiated basis for purposes of administering or implementing the requirements of this section. Contracts entered into or amended pursuant to this section shall be exempt from Chapter 6 (commencing with Section 14825) of Part 5.5 of Division 3 of Title 2 of the Government Code, Section 19130 of the Government Code, and Part 2 (commencing with Section 10100) of Division 2 of the Public Contract Code, and shall be exempt from the review or approval of any division of the Department of General Services.
SEC. 6.If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.
Any person who is subject to detention pursuant to Section 5150, 5250, 5260, 5270.15, or 5270.70 shall have the right to refuse treatment with antipsychotic medication subject to provisions set forth in this chapter.
SEC. 2.Section 5332 of the Welfare and Institutions Code is amended to read:5332.(a)Antipsychotic medication, as defined in subdivision (l) of Section 5008, may be administered to any person subject to detention pursuant to Section 5150, 5250, 5260, 5270.15, or 5270.70, if that person does not refuse that medication following disclosure of the right to refuse medication as well as information required to be given to persons pursuant to subdivision (e) of Section 5152 and subdivision (b) of Section 5213.
(b)If any person subject to detention pursuant to Section 5150, 5250, 5260, 5270.15, or 5270.70, and for whom antipsychotic medication has been prescribed, orally refuses or gives other indication of refusal of treatment with that medication, the medication shall be administered only when treatment staff have considered and determined that treatment alternatives to involuntary medication are unlikely to meet the needs of the patient, and upon a determination of that persons incapacity to refuse the treatment, in a hearing held for that purpose.
(c)Each hospital in conjunction with the hospital medical staff or any other treatment facility in conjunction with its clinical staff shall develop internal procedures for facilitating the filing of petitions for capacity hearings and other activities required pursuant to this chapter.
(d)When a person is subject to detention pursuant to Section 5150, 5250, 5260, 5270.15, or 5270.70, the agency or facility providing the treatment shall acquire the persons medication history, if possible.
(e)In the case of an emergency, as defined in subdivision (m) of Section 5008, a person detained pursuant to Section 5150, 5250, 5260, 5270.15, or 5270.70 may be treated with antipsychotic medication over the persons objection prior to a capacity hearing, but only with antipsychotic medication that is required to treat the emergency condition, which shall be provided in the manner least restrictive to the personal liberty of the patient. It is not necessary for harm to take place or become unavoidable prior to intervention.
SEC. 3.Section 5334 of the Welfare and Institutions Code is amended to read:5334.(a)(1)Capacity hearings required by Section 5332 shall be heard within 24 hours of the filing of the petition whenever possible. However, if any party needs additional time to prepare for the hearing, the hearing shall be postponed for 24 hours. In case of hardship, hearings may also be postponed for an additional 24 hours, pursuant to local policy developed by the county mental health director and the presiding judge of the superior court regarding the scheduling of hearings. The policy developed pursuant to this subdivision shall specify procedures for the prompt filing and processing of petitions to ensure that the deadlines set forth in this section are met, and shall take into consideration the availability of advocates and the treatment needs of the patient. In no event shall hearings be held beyond 72 hours of the filing of the petition. The person who is the subject of the petition and the persons advocate or counsel shall receive a copy of the petition at the time it is filed.
(2)(A)Under exigent circumstances, upon the filing of a petition for a hearing to determine a persons capacity to refuse treatment with antipsychotic medication and an attestation of exigent circumstances being documented in a persons medical record pursuant to subdivision (b) of Section 5336, a hearing shall be held to determine the persons capacity to refuse treatment with antipsychotic medication on an expedited basis and as soon as reasonably practicable.
(B)This paragraph shall be inoperative on January 1, 2030.
(b)(1)Capacity hearings shall be held in an appropriate location at the facility where the person is receiving treatment, and shall be held in a manner compatible with, and the least disruptive of, the treatment being provided to the person.
(2)Subject to any applicable rules of court, a capacity hearing may be conducted by remote means in an appropriate location at the facility where the person is receiving treatment as authorized pursuant to Section 367.76 of the Code of Civil Procedure, so long as the hearing would be compatible with, and be the least disruptive of, the treatment being provided to the person, as required by paragraph (1).
(c)Capacity hearings shall be conducted by a superior court judge, a court-appointed commissioner or referee, or a court-appointed hearing officer. All commissioners, referees, and hearing officers shall be appointed by the superior court from a list of attorneys unanimously approved by a panel composed of the local mental health director, the county public defender, and the county counsel or district attorney designated by the county board of supervisors. No employee of the county mental health program or of any facility designated by the county and approved by the department as a facility for 72-hour treatment and evaluation may serve as a hearing officer. All hearing officers shall receive training in the issues specific to capacity hearings.
(d)The person who is the subject of the capacity hearing shall be given oral notification of the determination at the conclusion of the capacity hearing. As soon thereafter as is practicable, the person, the persons counsel or advocate, and the director of the facility where the person is receiving treatment shall be provided with written notification of the capacity determination, which shall include a statement of the evidence relied upon and the reasons for the determination. A copy of the determination shall be submitted to the superior court.
(e)(1)The person who is the subject of the capacity hearing may appeal the determination to the superior court or the court of appeal.
(2)The person who filed the original petition for a capacity hearing may request the district attorney or county counsel in the county where the person is receiving treatment to appeal the determination to the superior court or the court of appeal, on behalf of the state.
(3)Nothing shall prohibit treatment from being initiated pending appeal of a determination of incapacity pursuant to this section.
(4)Nothing in this section shall be construed to preclude the right of a person to bring a writ of habeas corpus pursuant to Section 5275, subject to the provisions of this chapter.
(f)All appeals to the superior court pursuant to this section shall be subject to de novo review.
SEC. 4.Section 5336 of the Welfare and Institutions Code is amended to read:5336.(a)(1)A determination of a persons incapacity that a person does not have the capacity to refuse treatment with antipsychotic medication made pursuant to Section 5334 during the detention period described in Section 5150 or 5250 shall remain in effect only for the duration of the detention period described in Section 5150 or 5250, or both, until capacity has been restored according to standards developed pursuant to subdivision (c) of Section 5332, or by court determination, whichever is sooner. 5150, and for the duration of the detention period described in Section 5250, or for the duration of both periods together.
(2)Unless otherwise specified, and except as applied to Sections 5150 and 5250, a treating physician may request a hearing for a new determination of a persons capacity to refuse treatment with antipsychotic medication, to be made pursuant to Section 5334, at any time in the 48 hours prior to the end of the duration of the current detention period when it reasonably appears to the treating physician that it is necessary for the person to be detained for a subsequent detention period and the persons capacity has not been restored according to standards developed pursuant to subdivision (c) of Section 5332.
(3)A determination that a person does not have the capacity to refuse treatment with antipsychotic medication pursuant to this section remains in effect until one of the following occurs, whichever occurs first in time:
(A)In the judgment of the persons treating physician, the persons capacity has been restored or the person no longer meets the criteria for involuntary detention, according to standards developed pursuant to subdivision (c) of Section 5332.
(B)The court or hearing officer determines that the persons capacity to refuse treatment with antipsychotic medication is restored.
(C)The time limit for the detention period described in Section 5150, Section 5250, or for the detention period of both periods together, expires.
(b)(1)An Under exigent circumstances, an order for treatment with antipsychotic medication made pursuant to Section 5332 shall remain in effect at the beginning of a detention period described in Section 5260, 5270.15, or 5270.70, provided that a petition for a new determination on the question of capacity has been filed pursuant to Section 5334, and shall remain in effect until the court hears a hearing on that petition for that detention period is held under the exigent circumstances described by this subdivision and issues a decision is issued as set forth in Section 5334.
(2)Upon receipt of a petition for a hearing to determine a persons capacity to refuse treatment with antipsychotic medication and attestation of exigent circumstances being documented in the persons medical record pursuant to this subdivision, a hearing shall be held on an expedited basis to determine the persons capacity to refuse treatment with antipsychotic medication as soon as reasonably practicable and within 24 hours.
(3)In any case where an attestation of exigent circumstances is documented in the persons medical record pursuant to this subdivision and an order for treatment with antipsychotic medication made pursuant to Section 5332 remains in effect, the facility where the person is receiving treatment shall report all of the following to the State Department of Health Care Services after the capacity hearing is held on an expedited basis:
(A)The date and time when the physician or facility originally submitted a petition to request a hearing to determine a persons capacity to refuse treatment with antipsychotic medication under this section.
(B)The date when the applicable detention period described in paragraph (1) was scheduled to expire prior to the attestation described in subparagraph (C) of paragraph (6) being submitted.
(C)The date and time when the attestation of exigent circumstances was documented in the persons medical record, as described in subparagraph (C) of paragraph (6).
(D)The reason for the delay of the originally requested capacity hearing, if known, including, but not limited to, the lack of timely scheduling of the hearing, the unavailability of a hearing officer, court closure, or the unavailability of remote hearing technology, the person, or facility staff.
(E)The date and time when the capacity hearing was held on an expedited basis.
(4)Each May 1, beginning May 1, 2026, the State Department of Health Care Services shall compile the information it receives from facilities pursuant to this subdivision during the prior calendar year, as well as information about the county or city and county where the facility that submitted the information is located, and report the information pursuant to the requirements of Section 5402.
(2)(5)This subdivision does not apply to a person whose capacity has been restored according to standards developed pursuant to subdivision (c) of Section 5332. 5332 or affect the requirement that a hearing be conducted to determine a persons capacity to refuse treatment with antipsychotic medication within the applicable time limits specified in subdivision (a) of Section 5334, other than to require that such a hearing is held on an expedited basis.
(6)In order for there to be exigent circumstances necessitating an expedited hearing pursuant to this subdivision, all of the following must be true:
(A)A petition for a new determination on the question of capacity pursuant to Section 5334 has been filed prior to the expiration of the current order and in a period of time that provides a reasonable opportunity for a hearing to be held prior to the expiration of the current order and at least eight hours prior to the orders expiration.
(B)There has been a delay in a hearing to determine a persons capacity to refuse treatment with antipsychotic medication made pursuant to Section 5334, creating a risk that the existing capacity determination may expire before a new capacity determination is made.
(C)The persons treating physician documents in a written attestation of exigent circumstances, which shall be maintained in the persons medical record, that one of the following would likely occur if there were a lapse in the persons treatment with antipsychotic medication:
(i)An emergency, as defined in subdivision (m) of Section 5008.
(ii)A serious deterioration or decompensation of the persons mental health condition that could result in significant harm to the person based upon the facts of the persons individual circumstances, which the treating physician documents in their written attestation of exigent circumstances.
(D)The extension of treatment with antipsychotic medication until a new capacity hearing is held on the basis of an attestation of exigent circumstances described in this subdivision shall be invoked for a person only one time during the applicable detention period covered by the existing capacity determination.
(7)This subdivision shall be inoperative on January 1, 2030.
SEC. 5.Section 5402 of the Welfare and Institutions Code is amended to read:5402.(a)The State Department of Health Care Services shall collect data quarterly and publish, on or before May 1 of each year, a report including quantitative, deidentified information concerning the operation of this division. The report shall include an evaluation of the effectiveness of achieving the legislative intent of this part pursuant to Section 5001. Based on information that is available from each county, the report shall include all of the following information:
(1)The number of persons in designated and approved facilities admitted or detained for 72-hour evaluation and treatment, admitted for 14-day and 30-day periods of intensive treatment, and admitted for 180-day postcertification intensive treatment in each county.
(2)The number of persons transferred to mental health facilities pursuant to Section 4011.6 of the Penal Code in each county.
(3)The number of persons for whom temporary conservatorships are established in each county.
(4)The number of persons for whom conservatorships are established in each county.
(5)The number of persons admitted or detained either once, between two and five times, between six and eight times, and greater than eight times for each type of detention, including 72-hour evaluation and treatment, 14-day and 30-day periods of intensive treatment, and 180-day postcertification intensive treatment.
(6)The clinical outcomes for individuals identified in paragraphs (1) to (4), inclusive.
(7)The services provided or offered to individuals identified in paragraphs (1) to (4), inclusive. Data pertaining to services provided or offered to individuals placed on each type of hold shall include, but not be limited to, assessment, evaluation, medication treatment, crisis intervention, and psychiatric and psychological treatment services. Data pertaining to services shall specify the payer information or funding used to pay for services.
(8)The waiting periods for individuals prior to receiving an evaluation in a designated and approved facility pursuant to Section 5150 or 5151 and waiting periods for individuals prior to receiving treatment services in a designated facility, including the reasons for waiting periods. The waiting period shall be calculated from the date and time when the hold began and end on the date and time when the individual received an evaluation or received evaluation and treatment services in a designated facility.
(9)If the source of admission is an emergency department, the date and time of service and release from emergency care.
(10)Demographic data of those receiving care, including age, sex, gender identity, race, ethnicity, primary language, sexual orientation, veteran status, and housing status, to the extent those data are available.
(11)The number of all county-contracted beds.
(12)The number and outcomes of all of the following:
(A)The certification review hearings held pursuant to Section 5256.
(B)The petitions for writs of habeas corpus filed pursuant to Section 5275.
(C)The judicial review hearings held pursuant to Section 5276.
(D)The petitions for capacity hearings filed pursuant to Section 5332.
(E)The capacity hearings held pursuant to Section 5334 in each superior court.
(13)Analysis and evaluation of the efficacy of mental health assessments, detentions, treatments, and supportive services provided both under this part and subsequent to release.
(14)Recommendations for improving mental health assessments, detentions, treatments, and supportive services provided under this part and subsequent to release.
(15)An assessment of the disproportionate use of detentions and conservatorships on various groups, including an assessment of use by the race, ethnicity, gender identity, age group, veteran status, housing status, and Medi-Cal enrollment status of detained and conserved persons. This assessment shall evaluate disproportionate use at the county, regional, and state levels.
(16)An explanation for the absence of any data required pursuant to this section that are not included in the report.
(17)Beginning with the report due May 1, 2025, the report shall also include the progress that has been made on implementing recommendations from prior reports issued under this subdivision.
(18)Beginning with the report due May 1, 2024, the number of persons admitted or detained, including 72-hour evaluations and treatment, 14-day and 30-day periods of intensive treatment, and 180-day postcertification intensive treatment, for each of the following conditions:
(A)Danger to self.
(B)Danger to others.
(C)Grave disability due to a mental health disorder.
(D)Grave disability due to a severe substance use disorder.
(E)Grave disability due to both a mental health disorder and a severe substance use disorder.
(19)(A)Beginning with the report due May 1, 2026, all of the information reported by a facility pursuant to paragraph (3) of subdivision (b) of Section 5336.
(B)This paragraph shall be inoperative on January 1, 2030.
(b)(1)(A)Each county behavioral health director shall provide accurate and complete data to the department in a form and manner, and in accordance with timelines, prescribed by the department.
(B)County behavioral health directors shall provide the data specified in paragraphs (1) to (11), inclusive, of subdivision (a), and any other information, records, and reports that the department deems necessary for the purposes of this section.
(C)Data shall be submitted on a quarterly basis, or more frequently, as required by the department. The department shall not have access to patient name identifiers.
(2)(A)Each designated and approved facility that admits, detains, or provides services to persons pursuant to this part and Part 1.5 (commencing with Section 5585) and each other entity involved in implementing Section 5150 shall collect and provide accurate and complete data to the county behavioral health director in the county in which they operate to meet the reporting obligations specified in paragraphs (1) to (11), inclusive, of subdivision (a) and any other information, records, and reports that the county or the department deems necessary for the purposes of this section.
(B)A county may establish policies and procedures for this paragraph to ensure compliance with the requirements of this section. These facilities and entities shall collect and report data to the county behavioral health director consistent with the countys policies and procedures, if established.
(C)Data shall be submitted to the county behavioral health director on a quarterly basis, or more frequently, as required by the county.
(3)A county behavioral health director shall provide the accurate and complete data it receives pursuant to paragraph (2) to the department pursuant to paragraph (1).
(4)All data submitted to the department by each county behavioral health director shall be transmitted in a secure manner in compliance with all applicable state and federal requirements, including, but not limited to, Section 164.312 of Title 45 of the Code of Federal Regulations.
(c)Information published pursuant to subdivision (a) shall not contain data that may lead to the identification of patients receiving services under this division and shall contain statistical data only. Data published by the department shall be deidentified in compliance with subdivision (b) of Section 164.514 of Title 45 of the Code of Federal Regulations.
(d)The Judicial Council shall provide the department, by October 1 of each year, with data from each superior court to complete the report described in this section, including the number and outcomes of certification review hearings held pursuant to Section 5256, petitions for writs of habeas corpus filed pursuant to Section 5275, judicial review hearings held pursuant to Section 5276, petitions for capacity hearings filed pursuant to Section 5332, and capacity hearings held pursuant to Section 5334 in each superior court. The department shall not have access to patient name identifiers.
(e)The department shall make the report publicly available on the departments internet website.
(f)(1)The department may impose a plan of correction or assess civil money penalties, pursuant to paragraph (3), or both, against a designated and approved facility that fails to submit data on a timely basis or as otherwise required by this section.
(2)The department may impose a plan of correction or assess civil money penalties, pursuant to paragraph (3), or both, against a county that fails to submit data on a timely basis or as otherwise required by this section.
(3)The department may assess civil money penalties against a designated and approved facility or county in the amount of fifty dollars ($50) per day from the date specified in the notice to impose civil money penalties from the department.
(4)(A)A designated and approved facility or county may submit an informal written appeal of a civil money penalty to the department within 30 calendar days of the date of issuance of a notice to impose civil money penalties.
(B)The designated and approved facility or county shall include any supporting documentation and explain any mitigating circumstances.
(C)The department shall make a determination on the appeal within 60 calendar days of receipt of the informal written appeal.
(5)(A)A designated and approved facility or county may request a formal hearing within 30 calendar days following the issuance of the departments final determination on the appeal pursuant to paragraph (4).
(B)All hearings to review the imposition of civil money penalties shall be held pursuant to the procedures set forth in Section 100171 of the Health and Safety Code.
(C)Civil money penalties imposed upon a designated and approved facility or county shall continue to accrue until the effective date of the final decision of the department.
(g)(1)The Lanterman-Petris-Short Act Data and Reporting Oversight Fund is hereby created in the State Treasury.
(2)The Lanterman-Petris-Short Act Data and Reporting Oversight Fund shall be administered by the State Department of Health Care Services.
(3)Civil money penalties assessed and collected pursuant to subdivision (f) shall be deposited into this fund.
(4)(A)Notwithstanding Section 13340 of the Government Code, moneys deposited in the Lanterman-Petris-Short Act Data and Reporting Oversight Fund shall be continuously appropriated, without regard to fiscal year, to the State Department of Health Care Services for the purposes of funding its oversight activities and administrative costs associated with implementing this section.
(B)Notwithstanding any other law, the Controller may use the moneys in the Lanterman-Petris-Short Act Data and Reporting Oversight Fund for cashflow loans to the General Fund as provided in Sections 16310 and 16381 of the Government Code.
(h)Notwithstanding Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code, the department may implement, interpret, or make specific this section, in whole or in part, by means of information notices, provider bulletins, or other similar instructions, without taking any further regulatory action.
(i)The department may enter into exclusive or nonexclusive contracts, or amend existing contracts, on a bid or negotiated basis for purposes of administering or implementing the requirements of this section. Contracts entered into or amended pursuant to this section shall be exempt from Chapter 6 (commencing with Section 14825) of Part 5.5 of Division 3 of Title 2 of the Government Code, Section 19130 of the Government Code, and Part 2 (commencing with Section 10100) of Division 2 of the Public Contract Code, and shall be exempt from the review or approval of any division of the Department of General Services.
Any person who is subject to detention pursuant to Section 5150, 5250, 5260, 5270.15, or 5270.70 shall have the right to refuse treatment with antipsychotic medication subject to provisions set forth in this chapter.
SEC. 2.Section 5332 of the Welfare and Institutions Code is amended to read:5332.(a)Antipsychotic medication, as defined in subdivision (l) of Section 5008, may be administered to any person subject to detention pursuant to Section 5150, 5250, 5260, 5270.15, or 5270.70, if that person does not refuse that medication following disclosure of the right to refuse medication as well as information required to be given to persons pursuant to subdivision (e) of Section 5152 and subdivision (b) of Section 5213.
(b)If any person subject to detention pursuant to Section 5150, 5250, 5260, 5270.15, or 5270.70, and for whom antipsychotic medication has been prescribed, orally refuses or gives other indication of refusal of treatment with that medication, the medication shall be administered only when treatment staff have considered and determined that treatment alternatives to involuntary medication are unlikely to meet the needs of the patient, and upon a determination of that persons incapacity to refuse the treatment, in a hearing held for that purpose.
(c)Each hospital in conjunction with the hospital medical staff or any other treatment facility in conjunction with its clinical staff shall develop internal procedures for facilitating the filing of petitions for capacity hearings and other activities required pursuant to this chapter.
(d)When a person is subject to detention pursuant to Section 5150, 5250, 5260, 5270.15, or 5270.70, the agency or facility providing the treatment shall acquire the persons medication history, if possible.
(e)In the case of an emergency, as defined in subdivision (m) of Section 5008, a person detained pursuant to Section 5150, 5250, 5260, 5270.15, or 5270.70 may be treated with antipsychotic medication over the persons objection prior to a capacity hearing, but only with antipsychotic medication that is required to treat the emergency condition, which shall be provided in the manner least restrictive to the personal liberty of the patient. It is not necessary for harm to take place or become unavoidable prior to intervention.
SEC. 3.Section 5334 of the Welfare and Institutions Code is amended to read:5334.(a)Capacity hearings required by Section 5332 shall be heard within 24 hours of the filing of the petition whenever possible. However, if any party needs additional time to prepare for the hearing, the hearing shall be postponed for 24 hours. In case of hardship, hearings may also be postponed for an additional 24 hours, pursuant to local policy developed by the county mental health director and the presiding judge of the superior court regarding the scheduling of hearings. The policy developed pursuant to this subdivision shall specify procedures for the prompt filing and processing of petitions to ensure that the deadlines set forth in this section are met, and shall take into consideration the availability of advocates and the treatment needs of the patient. In no event shall hearings be held beyond 72 hours of the filing of the petition. The person who is the subject of the petition and the persons advocate or counsel shall receive a copy of the petition at the time it is filed.
(b)Capacity hearings shall be held in an appropriate location at the facility where the person is receiving treatment, and shall be held in a manner compatible with, and the least disruptive of, the treatment being provided to the person.
(c)Capacity hearings shall be conducted by a superior court judge, a court-appointed commissioner or referee, or a court-appointed hearing officer. All commissioners, referees, and hearing officers shall be appointed by the superior court from a list of attorneys unanimously approved by a panel composed of the local mental health director, the county public defender, and the county counsel or district attorney designated by the county board of supervisors. No employee of the county mental health program or of any facility designated by the county and approved by the department as a facility for 72-hour treatment and evaluation may serve as a hearing officer. All hearing officers shall receive training in the issues specific to capacity hearings.
(d)The person who is the subject of the capacity hearing shall be given oral notification of the determination at the conclusion of the capacity hearing. As soon thereafter as is practicable, the person, the persons counsel or advocate, and the director of the facility where the person is receiving treatment shall be provided with written notification of the capacity determination, which shall include a statement of the evidence relied upon and the reasons for the determination. A copy of the determination shall be submitted to the superior court.
(e)(1)The person who is the subject of the capacity hearing may appeal the determination to the superior court or the court of appeal.
(2)The person who filed the original petition for a capacity hearing may request the district attorney or county counsel in the county where the person is receiving treatment to appeal the determination to the superior court or the court of appeal, on behalf of the state.
(3)Nothing shall prohibit treatment from being initiated pending appeal of a determination of incapacity pursuant to this section.
(4)Nothing in this section shall be construed to preclude the right of a person to bring a writ of habeas corpus pursuant to Section 5275, subject to the provisions of this chapter.
(f)All appeals to the superior court pursuant to this section shall be subject to de novo review.
(g)(1)A person who was found to lack capacity at a capacity hearing may file a petition to request a redetermination hearing on the question of capacity at the commencement of any detention period described in Section 5260, 5270.15, or 5270.70.(2)The facility where a person described in paragraph (1) is receiving treatment shall inform the person, and their advocate, of the persons right to request a redetermination on the question of incapacity at the commencement of any detention period described in Section 5260, 5270.15, or 5270.70.(3)Capacity redetermination hearings shall be conducted in the same manner as capacity hearings pursuant to this section.(4)Capacity redetermination hearings held pursuant to this subdivision may raise new information and evidence that was not raised in the original capacity hearing or any other capacity redetermination hearing.(5)The question of capacity shall be reviewed de novo and under the same burden of proof applied in the initial capacity hearing.(6)The person who is the subject of the capacity redetermination hearing may appeal the determination to the superior court or the court of appeal.(7)Nothing shall prohibit treatment from continuing pending a determination of incapacity pursuant to this subdivision.SEC. 4.Section 5336 of the Welfare and Institutions Code is amended to read:5336.(a)A determination of a persons incapacity to refuse treatment with antipsychotic medication made pursuant to Section 5334 shall remain in effect only for the duration of the detention period described in Section 5150, 5250, 5260, 5270.15, or 5270.70 5150 or 5250, or both, until capacity has been restored according to standards developed pursuant to subdivision (c) of Section 5332, or by court determination, whichever is sooner.
(b)(1)An order for treatment with antipsychotic medication made pursuant to Section 5332 shall remain in effect at the beginning of a detention period described in Section 5260, 5270.15, or 5270.70, provided that a petition for a new determination on the question of capacity has been filed pursuant to Section 5334, and shall remain in effect until the court hears a petition for that detention period and issues a decision as set forth in Section 5334.
(2)This subdivision does not apply to a person whose capacity has been restored according to standards developed pursuant to subdivision (c) of Section 5332.
Any person who is subject to detention pursuant to Section 5150, 5250, 5260, or 5270.15 5270.15, or 5270.70 shall have the right to refuse treatment with antipsychotic medication subject to provisions set forth in this chapter.
SEC. 2.Section 5332 of the Welfare and Institutions Code is amended to read:5332.(a)Antipsychotic medication, as defined in subdivision (l) of Section 5008, may be administered to any person subject to detention pursuant to Section 5150, 5250, 5260, or 5270.15, or 5270.70, if that person does not refuse that medication following disclosure of the right to refuse medication as well as information required to be given to persons pursuant to subdivision (c) (e) of Section 5152 and subdivision (b) of Section 5213.
(b)If any person subject to detention pursuant to Section 5150, 5250, 5260, or 5270.15, or 5270.70, and for whom antipsychotic medication has been prescribed, orally refuses or gives other indication of refusal of treatment with that medication, the medication shall be administered only when treatment staff have considered and determined that treatment alternatives to involuntary medication are unlikely to meet the needs of the patient, and upon a determination of that persons incapacity to refuse the treatment, in a hearing held for that purpose.
(c)Each hospital in conjunction with the hospital medical staff or any other treatment facility in conjunction with its clinical staff shall develop internal procedures for facilitating the filing of petitions for capacity hearings and other activities required pursuant to this chapter.
(d)When any a person is subject to detention pursuant to Section 5150, 5250, 5260, or 5270.15, or 5270.70, the agency or facility providing the treatment shall acquire the persons medication history, if possible.
(e)In the case of an emergency, as defined in subdivision (m) of Section 5008, a person detained pursuant to Section 5150, 5250, 5260, or 5270.15 5270.15, or 5270.70 may be treated with antipsychotic medication over his or her the persons objection prior to a capacity hearing, but only with antipsychotic medication that is required to treat the emergency condition, which shall be provided in the manner least restrictive to the personal liberty of the patient. It is not necessary for harm to take place or become unavoidable prior to intervention.
SEC. 3.Section 5334 of the Welfare and Institutions Code is amended to read:5334.(a)Capacity hearings required by Section 5332 shall be heard within 24 hours of the filing of the petition whenever possible. However, if any party needs additional time to prepare for the hearing, the hearing shall be postponed for 24 hours. In case of hardship, hearings may also be postponed for an additional 24 hours, pursuant to local policy developed by the county mental health director and the presiding judge of the superior court regarding the scheduling of hearings. The policy developed pursuant to this subdivision shall specify procedures for the prompt filing and processing of petitions to ensure that the deadlines set forth in this section are met, and shall take into consideration the availability of advocates and the treatment needs of the patient. In no event shall hearings be held beyond 72 hours of the filing of the petition. The person who is the subject of the petition and his or her the persons advocate or counsel shall receive a copy of the petition at the time it is filed.
(b)Capacity hearings shall be held in an appropriate location at the facility where the person is receiving treatment, and shall be held in a manner compatible with, and the least disruptive of, the treatment being provided to the person.
(c)Capacity hearings shall be conducted by a superior court judge, a court-appointed commissioner or referee, or a court-appointed hearing officer. All commissioners, referees, and hearing officers shall be appointed by the superior court from a list of attorneys unanimously approved by a panel composed of the local mental health director, the county public defender, and the county counsel or district attorney designated by the county board of supervisors. No employee of the county mental health program or of any facility designated by the county and approved by the department as a facility for 72-hour treatment and evaluation may serve as a hearing officer. All hearing officers shall receive training in the issues specific to capacity hearings.
(d)The person who is the subject of the capacity hearing shall be given oral notification of the determination at the conclusion of the capacity hearing. As soon thereafter as is practicable, the person, his or her the persons counsel or advocate, and the director of the facility where the person is receiving treatment shall be provided with written notification of the capacity determination, which shall include a statement of the evidence relied upon and the reasons for the determination. A copy of the determination shall be submitted to the superior court.
(e)(1)The person who is the subject of the capacity hearing may appeal the determination to the superior court or the court of appeal.
(2)The person who has filed the original petition for a capacity hearing may request the district attorney or county counsel in the county in which where the person is receiving treatment to appeal the determination to the superior court or the court of appeal, on behalf of the state.
(3)Nothing shall prohibit treatment from being initiated pending appeal of a determination of incapacity pursuant to this section.
(4)Nothing in this section shall be construed to preclude the right of a person to bring a writ of habeas corpus pursuant to Section 5275, subject to the provisions of this chapter.
(f)All appeals to the superior court pursuant to this section shall be subject to de novo review.
(g)(1)A person who was found to lack capacity at a capacity hearing may file a petition to request a redetermination hearing on the question of capacity at the commencement of any detention period described in Section 5260, 5270.15, or 5270.70.
(2)The facility where a person described in paragraph (1) is receiving treatment shall inform the person, and their advocate, of the persons right to request a redetermination on the question of incapacity at the commencement of any detention period described in Section 5260, 5270.15, or 5270.70.
(3)Capacity redetermination hearings shall be conducted in the same manner as capacity hearings pursuant to this section.
(4)Capacity redetermination hearings held pursuant to this subdivision may raise new information and evidence that was not raised in the original capacity hearing or any other capacity redetermination hearing.
(5)The question of capacity shall be reviewed de novo and under the same burden of proof applied in the initial capacity hearing.
(6)The person who is the subject of the capacity redetermination hearing may appeal the determination to the superior court or the court of appeal.
(7)Nothing shall prohibit treatment from continuing pending a determination of incapacity pursuant to this subdivision.
SECTION 1.SEC. 4.Section 5336 of the Welfare and Institutions Code is amended to read:5336.A determination of a persons incapacity to refuse treatment with antipsychotic medication made pursuant to Section 5334 shall remain in effect only for the duration of the detention period described in Section 5150, 5250, 5260, 5270.15, or 5270.70 until capacity has been restored according to standards developed pursuant to subdivision (c) of Section 5332, or by court determination, whichever is sooner.
A determination of a persons incapacity to refuse treatment with antipsychotic medication made pursuant to Section 5334 shall remain in effect only for the duration of the detention period described in Section 5150, 5250, 5260, 5270.15, or all that are applicable, or 5270.70 until capacity has been restored according to standards developed pursuant to subdivision (c) of Section 5332, or by court determination, whichever is sooner.
Any A determination of a persons incapacity to refuse treatment with antipsychotic medication made pursuant to Section 5334 shall remain in effect only for the duration of the detention period described in Section 5150 or 5250, or both, or 5150, 5250, 5260, 5270.15, or all that are applicable, until capacity has been restored according to standards developed pursuant to subdivision (c) of Section 5332, or by court determination, whichever is sooner.
|
Date
|
Status
|
|---|---|
| Sep 27, 2024 | Chaptered by Secretary of State. Chapter 643, Statutes of 2024. |
| Sep 27, 2024 | Approved by the Governor. |
| Sep 4, 2024 | Enrolled and presented to the Governor at 4 p.m. |
| Aug 28, 2024 | Assembly amendments concurred in. (Ayes 39. Noes 0. Page 5604.) Ordered to engrossing and enrolling. |
| Aug 26, 2024 | In Senate. Concurrence in Assembly amendments pending. |
| Aug 26, 2024 | Read third time. Passed. (Ayes 75. Noes 0. Page 6531.) Ordered to the Senate. |
| Aug 20, 2024 | Read third time and amended. |
| Aug 20, 2024 | Ordered to third reading. |
| Aug 19, 2024 | Read second time. Ordered to third reading. |
| Aug 15, 2024 | From committee: Do pass. (Ayes 14. Noes 0.) (August 15). |
| Aug 7, 2024 | August 7 set for first hearing. Placed on suspense file. |
| Jun 27, 2024 | Read second time. Ordered to third reading. |
| Jun 27, 2024 | Re-referred to Com. on APPR. pursuant to Joint Rule 10.5. |
| Jun 26, 2024 | Read second time and amended. Ordered to second reading. |
| Jun 25, 2024 | From committee: Do pass as amended. (Ayes 10. Noes 0.) (June 25). |
| Jun 17, 2024 | June 18 set for first hearing canceled at the request of author. |
| Jun 12, 2024 | From committee: Do pass and re-refer to Com. on JUD. (Ayes 16. Noes 0.) (June 11). Re-referred to Com. on JUD. |
| May 28, 2024 | Referred to Coms. on HEALTH and JUD. |
| May 22, 2024 | In Assembly. Read first time. Held at Desk. |
| May 21, 2024 | Read third time. Passed. (Ayes 39. Noes 0. Page 4078.) Ordered to the Assembly. |
| May 2, 2024 | Read second time and amended. Ordered to third reading. |
| May 1, 2024 | From committee: Do pass as amended. (Ayes 11. Noes 0. Page 3820.) (April 30). |
| Apr 22, 2024 | From committee with author's amendments. Read second time and amended. Re-referred to Com. on JUD. |
| Apr 12, 2024 | Set for hearing April 30. |
| Mar 21, 2024 | Read second time and amended. Re-referred to Com. on JUD. |
| Mar 20, 2024 | From committee: Do pass as amended and re-refer to Com. on JUD. (Ayes 11. Noes 0. Page 3380.) (March 20). |
| Mar 6, 2024 | Set for hearing March 20. |
| Feb 21, 2024 | Referred to Coms. on HEALTH and JUD. |
| Feb 15, 2024 | From printer. May be acted upon on or after March 16. |
| Feb 14, 2024 | Introduced. Read first time. To Com. on RLS. for assignment. To print. |
|
Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Aug 28, 2024 | Unfinished Business SB1184 Eggman Concurrence | Senate Floor |
Passed |
|
| Aug 26, 2024 | SB 1184 Eggman Senate Third Reading By Maienschein | Assembly Floor |
Passed |
|
| Aug 15, 2024 | Do pass. | Assembly Standing Committee on Appropriations |
Passed |
|
| Jun 25, 2024 | Do pass as amended. | Assembly Standing Committee on Judiciary |
Passed |
|
| Jun 11, 2024 | Do pass and be re-referred to the Committee on [Judiciary] | Assembly Standing Committee on Health |
Passed |
|
| May 21, 2024 | Senate 3rd Reading SB1184 Eggman | Senate Floor |
Passed |
|
| Apr 30, 2024 | Do pass as amended | Senate Standing Committee on Judiciary |
Passed |
|
| Mar 20, 2024 | Do pass as amended, but first amend, and re-refer to the Committee on [Judiciary] | Senate Standing Committee on Health |
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
|
|---|---|---|
| American Civil Liberties Union California Action | ** Against | |
| Berkeley | * Support | Jun 11, 2024 |
| Cal Voices | ** Against | |
| California Academy of Child and Adolescent Psychiatry | ** Support | |
| California Association Of Psychiatric Technicians | * Support | Jun 25, 2024 |
| California Association of Social Rehabilitation Agencies | ** Against | |
| California Medical Association | ** Support | |
| California Nurses Association | * Against | Jun 26, 2024 |
| California Peer Watch | ** Against | |
| California State Association of Psychiatrists | ** Support | |
| CAMHPRA | * Against | Apr 30, 2024 |
| CAMHPRA | ** Against | |
| City and County of San Francisco | * Support | Jun 25, 2024 |
| Disability Rights California | ** Against | |
| Mental Health America of California | ** Against | |
| National Alliance of Mental Illness | ** Support | |
| Psychiatric Physicians Alliance of California | ** Support | |
| Resnick Neuropsychiatric Hospital | * Support | Apr 30, 2024 |
| The California Association of Mental Health Patients’ Rights Advocates | ** Against | |
| The Law Foundation Of Silicon Valley | ** Against | |
| UCLA Psychiatric Hospital | * Support | Jun 11, 2024 |
| UCLA's Resnick Neuropsychiatric Hospital | * Support | Mar 20, 2024 |
SENATE RULES COMMITTEE Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | SB 1184 |
UNFINISHED BUSINESS
Bill No: SB 1184
Author: Eggman (D)
Amended: 8/20/24
Vote: 21
SENATE HEALTH COMMITTEE: 11-0, 3/20/24
AYES: Roth, Nguyen, Glazer, Gonzalez, Grove, Hurtado, Limón, Menjivar, Rubio, Smallwood-Cuevas, Wiener
SENATE JUDICIARY COMMITTEE: 11-0, 4/30/24
AYES: Umberg, Wilk, Allen, Blakespear, Caballero, Dodd, Durazo, Laird, Min, Niello, Wiener
SENATE FLOOR: 39-0, 5/21/24
AYES: Alvarado-Gil, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dahle, Dodd, Durazo, Eggman, Glazer, Gonzalez, Grove, Hurtado, Jones, Laird, Limón, McGuire, Menjivar, Min, Newman, Nguyen, Niello, Ochoa Bogh, Padilla, Portantino, Roth, Rubio, Seyarto, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener, Wilk
NO VOTE RECORDED: Allen
ASSEMBLY FLOOR: 75-0, 8/26/24 - See last page for vote
SUBJECT: Mental health: involuntary treatment: antipsychotic medication
SOURCE: California State Association of Psychiatrists
DIGEST:
This bill requires an order for treatment with antipsychotic medication, as specified, to remain in effect at the beginning of a detention period for various involuntary holds provided that a petition for a new determination on the question of capacity has been filed, as specified. Requires this determination to remain in effect until the court hears a petition for that detention period and issues a decision, as specified.
Assembly Amendments
make various clarifications to the processes for capacity hearings as follows:
- Requires a hearing to be held to determine a person’s capacity to refuse treatment with antipsychotic medication on an expedites basis or as soon as reasonably practicable upon filing of a petition for a hearing and attestation of exigent circumstances being documented, until January 1, 2030, upon which this provision sunsets;
- Permits, subject to any applicable rules of court, a hearing to be conducted by remote means in an appropriate location;
- Permits a treating physician to request a hearing for a new determination of capacity to refuse treatment at any time in the 48 hours prior to the end of the duration of a current detention period when it reasonably appears that the person needs to be detained for a subsequent detention period and the person’s capacity has not been restored, until either the physician determines the person’s capacity has been restored; the court or hearing officer determines the person’s capacity has been restored; or the time limit for the specified detention period to which the person is subject expires;
- Requires a hearing to be held as soon as reasonably practicable and within 24 hours upon receipt of a petition for a hearing to determine capacity and an attestation of exigent circumstances being documented. Requires specified information to be reported to the county behavioral health director in the county in which a treating facility operates after the capacity hearing is held in any case where an attestation of exigent circumstances is documented in a person’s medical record and an order for treatment with antipsychotic medications is made. Requires a county behavioral health director to provide specified information to the Department of Health Care Services (DHCS);
- Requires each May, beginning May 1, 2026, DHCS to compile information it receives from county behavioral health directors and report it as specified; and,
- Sets requirements in order for there to be exigent circumstances necessitating an expedited capacity hearing. Sunsets these provisions on January 1, 2030.
ANALYSIS:
Existing law:
- Establishes the Lanterman-Petris-Short (LPS) Act to end the inappropriate, indefinite, and involuntary commitment of persons with MH disorders, developmental disabilities, and chronic alcoholism, as well as to safeguard a person’s rights, provide prompt evaluation and treatment, and provide services in the least restrictive setting appropriate to the needs of each person. Permits involuntary detention of a person deemed to be a danger to self or others, or “gravely disabled,” as defined, for periods of up-to 72 hours for evaluation and treatment, or for up-to 14 days and up-to 30 days for additional intensive treatment in county-designated facilities. [WIC §5000, et seq.]
- Permits antipsychotic medication to be administered to any person subject to various involuntary detention lengths, as specified, if that person does not refuse that medication following disclosure of the right to refuse medication, as well as information required to be given to persons, as specified. [WIC §5332]
- Requires medication, if any person subject to various specified involuntary detention lengths and for whom antipsychotic medication has been prescribed orally refuses or gives other indication of refusal of treatment with that medication, to be administered only when treatment staff have considered and determined that treatment alternatives to involuntary medication are unlikely to meet the needs of the patient, and upon a determination of that person’s incapacity to refuse the treatment in a capacity hearing (known as a “Riese hearing”) held for that purpose. [WIC §5332]
- Requires persons subject to capacity hearings, as specified, to have a right to representation by an advocate or legal counsel. Requires capacity hearings to be heard within 24 hours of the filing of the petition whenever possible. [WIC §5333 and §5334]
- Requires any determination of a person’s incapacity to refuse treatment with antipsychotic medication to remain in effect only for the duration of the up-to 72 hours of detention for evaluation and treatment and the initial up-to 14 days of involuntary detention for intensive treatment, or both, or until capacity has been restored according to standards developed, as specified, or by court determination, whichever is sooner. [WIC §5336]
This bill:
- Requires an order for treatment with antipsychotic medication made pursuant to 2) of existing law above to remain in effect at the beginning of a detention period for the up-to 14-day detention period for suicidal persons; for an initial up-to 30-day detention period (following an up-to 14-day detention); and, for an additional up-to 30-day detention period (subsequent to an initial up-to 30 day detention), provided that a petition for a new determination on the question of the person’s capacity has been filed, as specified.
- Permits, subject to any applicable rules of court, a hearing to be conducted by remote means in an appropriate location;
- Permits a treating physician to request a hearing for a new determination of capacity to refuse treatment at any time in the 48 hours prior to the end of the duration of a current detention period when it reasonably appears that the person needs to be detained for a subsequent detention period and the person’s capacity has not been restored, until either the physician determines the person’s capacity has been restored; the court or hearing officer determines the person’s capacity has been restored; or the time limit for the specified detention period to which the person is subject expires;
- Requires a hearing to be held as soon as reasonably practicable and within 24 hours upon receipt of a petition for a hearing to determine capacity and an attestation of exigent circumstances being documented. Requires specified information to be reported to the county behavioral health director in the county in which a treating facility operates after the capacity hearing is held in any case where an attestation of exigent circumstances is documented in a person’s medical record and an order for treatment with antipsychotic medications is made. Requires a county behavioral health director to provide specified information to DHCS;
- Requires each May, beginning May 1, 2026, DHCS to compile information it receives from county behavioral health directors and report it as specified; and,
- Sets requirements in order for there to be exigent circumstances necessitating an expedited capacity hearing. Sunsets these provisions on January 1, 2030.
Comments
- Author’s statement. According to the author, “while it should always be our goal to get people with serious mental illnesses into voluntary treatment, it is a sad reality that some severely mentally ill individuals lack the capacity to recognize their illness or to seek help for it. In some of these cases, a person is so ill that they become a danger to self or others, or become gravely disabled. In these scenarios, it is sometimes necessary to involuntarily detain and treat a patient in order to stabilize them with the goal of restoring their capacity and helping them live a fuller life; something we all want for our fellow human beings. It is, appropriately, a high bar under existing law to place someone on an involuntary hold, and in these situations, we have a tremendous obligation to the person being held to ensure they receive the appropriate care. Unfortunately, under existing law, involuntary treatment during a hold can be discontinued even if it is not clinically indicated to do so simply because a person is in the process of transitioning from one type hold to another. This bill preserves due process protections while ensuring that the person can continue to be treated until a determination has been made that their capacity has been restored.”
- LPS Act involuntary detentions. The LPS Act provides for involuntary detentions for varying lengths of time for the purpose of evaluation and treatment, provided certain requirements are met, such as that an individual is taken to a county-designated facility. Typically, one first interacts with the LPS Act through a 5150 hold initiated by a peace officer or other person authorized by a county, who must determine and document that the individual meets the standard for a 5150 hold. A county-designated facility is authorized to then involuntarily detain an individual for up to 72 hours for evaluation and treatment if they are determined to be, as a result of a mental health disorder, a danger to self or others, or gravely disabled. The professional person in charge of the county-designated facility is required to assess an individual to determine the appropriateness of the involuntary detention prior to admitting the individual. Subject to various conditions, a person who is found to be a danger to self or others, or gravely disabled, can be subsequently involuntarily detained for an initial up-to 14 days for intensive treatment; an additional 14 days (or up to an additional 30 days in counties that have opted to provide this additional up-to 30-day intensive treatment episode); and ultimately a conservatorship, which is typically for up to a year and may be extended as appropriate. (According to DHCS’s website, the following counties offer additional up-to 30 days of intensive treatment: Butte, El Dorado, Fresno, Humboldt, Kern, Los Angeles, Mendocino, Merced, Monterey, Orange, Placer, Plumas, Riverside, Sacramento, San Benito, San Diego, San Joaquin, San Mateo, Santa Barbara, Shasta, Tulare, Yolo and Sutter/Yuba.) Throughout this process, existing law requires specified entities to notify family members or others identified by the detained individual of various hearings, where it is determined whether a person will be further detained or released, unless the detained person requests that this information is not provided. Additionally, a person cannot be found to be gravely disabled if they can survive safely without involuntary detention with the help of responsible family, friends, or others who indicate they are both willing and able to help. A person can also be released prior to the end of intensive treatment if they are found to no longer meet the criteria or are prepared to accept treatment voluntarily.
- Riese hearings. DHCS’s website includes the handbook “Rights for Individuals in Mental Health Facilities,” which states that a capacity hearing may be held to determine whether an individual can refuse treatment with medications. The capacity hearing is conducted by a hearing officer at the facility where the individual is receiving treatment or by a judge in court. The hearing officer will determine whether the individual has the capacity to consent to or refuse medication as a form of treatment. An individual’s representative helps them prepare for the hearing and will answer questions or discuss concerns that they may have about the hearing process. If an individual disagrees with the capacity hearing decision, they may appeal the decision to a superior court or to a court of appeal. Their patients’ rights advocate or attorney can assist them with filing an appeal.
According to information submitted by the author’s office, local superior court departments in many counties enforce local rules that limit the Riese power to the phase of the involuntary detention, requiring discontinuation of involuntary treatment and resubmittal of Riese petitions (and hearings) at the conclusion of a 14-day hold for patients who have their detention extended and continue to be detained under a 30-day hold, and again under a second 30-day hold. Continued detention is often a necessity to preclude discharge of an unstable gravely disabled individual from inpatient hospitalization during lengthy public guardian investigations prior to hearings for petition for temporary conservatorship. These local rules lead to a mandatory, but clinically contraindicated, discontinuation of medication treatment during detention while another Riese hearing is scheduled and a court decision is awaited. The local rule is reportedly based upon existing law that allows a court order for medication to remain in effect until the expiration of detention or the initial up-to14-day hold, but does not mention the up-to 30-day hold when a patient is in need of an extension of intensive treatment or the second up-to 30-day hold (in counties that use this option).
FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes
According to the Assembly Appropriations Committee, costs of an unknown amount, potentially more than $150,000 annually, to DHCS to collect data from facilities and add the data to a report DHCS is already required to prepare and publish (General Fund).
SUPPORT: (Verified: 8/20/24)
California State Association of Psychiatrists (source)
California Academy of Child and Adolescent Psychiatry
California Medical Association
National Alliance of Mental Illness
Psychiatric Physicians Alliance of California
One Individual
OPPOSITION: (Verified 8/20/24)
American Civil Liberties Union California Action
Cal Voices
California Association of Social Rehabilitation Agencies
California Peer Watch
Disability Rights California
Mental Health America of California
The California Association of Mental Health Patients’ Rights Advocates
The Law Foundation of Silicon Valley
ARGUMENTS IN SUPPORT: The Psychiatric Physicians Alliance of California (PPAC) states that this bill amends current law, which codified the findings in Riese v. St Mary’s [259 Cal. Rptr. 669, 774 P.2d 698 (1989)], that held that patients may not be medicated over their objection with antipsychotics absent a court finding that they lack the capacity to refuse antipsychotic medications. PPAC states the court did not definitively address the question of duration of the court finding of incapacity, though by implication a person who has regained capacity after sufficient therapy with antipsychotic medication over objection should not be subject to involuntary medication. Conversely, the persistence of patient incapacity could also argue for the persistence of the authority to medicate over objection, even through multiple holds. PPAC and the California State Association of Psychiatrists argue that medications must be carefully titrated and monitored; stopping or interrupting such medication at arbitrary points during LPS detention, based on local court rules, exposes patients to unjustified clinical risks. This can also prolong the length of stay in inpatient settings. Nothing in this bill would alter the current ability of individuals to petition for the discontinuation of involuntary treatment.
ARGUMENTS IN OPPOSITION: Disability Rights California (DRC) states that this bill is a grave erosion of the rights to bodily autonomy and due process for individuals involuntarily detained. Multiple medication capacity hearings during the same detention are not redundant and are an important fixture of due process. DRC argues if a patient is still refusing psychiatric medication after receiving weeks of treatment, they likely have good reasons to refuse. For example, side effects from psychiatric medications can be extreme. One study found 15-30% of patients over the age of 45 developed Tardive Dyskinesia, a severe and permanent movement disorder after one year of treatment from psychiatric medication. DRC also disagrees that holding multiple Riese hearings is an administrative burden, and does not believe this rises to the level of necessitating elimination of important civil rights. These hearings are held in the facility, where psychiatrists are already working. There is no interruption in psychiatric treatment when Riese petitions are filed and heard timely. These petitions are usually prioritized by the LPS hearing officer to ensure they’re held as soon as possible.
Cal Voices and other opponents argue that this bill violates the LPS and Riese by purporting to allow psychiatrists to presume an involuntary patient lacks capacity in the event she is placed on a subsequent involuntary hold under 5260, 5270.15, and 5270.70, and because she is placed on such a hold. This violates Riese’s core holding: a psychiatrist may not presume a patient lacks capacity because she has been placed on an involuntary hold. Importantly, if a patient became a voluntary patient at the end of her 14-day hold and Riese order, the Riese order under this bill would terminate because voluntary patients cannot be subject to Riese petitions. So, it is clear that this bill is permitting a presumption that a patient remains lacking in decision-making capacity on the basis of being placed on a next involuntary hold. Again, that violates Riese regardless of whether there was a determination on a prior hold. This bill violates Riese in a number of other ways: it shifts the state’s burden to file a petition and first prove incapacity onto an involuntary patient via the bill’s “redetermination” process; it allows a doctor, and not a court, to make a determination the patient lacks decision-making capacity on 5260, 5270.15, and 5270.70 holds; and, it removes due process instead of making trial courts responsive to address logistical difficulties.
ASSEMBLY FLOOR: 75-0, 8/26/24
AYES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Calderon, Juan Carrillo, Wendy Carrillo, Chen, Connolly, Megan Dahle, Davies, Dixon, Essayli, Flora, Mike Fong, Friedman, Gabriel, Gallagher, Garcia, Gipson, Grayson, Haney, Hart, Hoover, Irwin, Jackson, Jones-Sawyer, Kalra, Lackey, Lee, Low, Lowenthal, Maienschein, Mathis, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Rendon, Reyes, Luz Rivas, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas
NO VOTE RECORDED: Bryan, Cervantes, Holden, Ortega
Prepared by: Reyes Diaz / HEALTH / (916) 651-4111
8/27/24 12:30:37
**** END ****
SENATE THIRD READING
STR Bill Id:SB 1184
Author:(Eggman)
As Amended Ver:August 20, 2024
Majority vote
SUMMARY
Permits, in "exigent circumstances," an order for involuntary treatment with antipsychotic medication that applied during the prior detention period to continue until a new hearing for a determination of the person's capacity to refuse treatment occurs; requires the capacity hearing to be held on an expedited basis; and requires a facility where such an extension of involuntary treatment occurs to report specified data to the county behavioral health director in the county in which they operate. Sunsets the provisions of this bill on January 1, 2030.
Major Provisions
COMMENTS
- Lanterman-Petris-Short Act (LPS Act) involuntary detentions. The LPS Act provides for involuntary detentions for varying lengths of time for the purpose of evaluation and treatment, provided certain requirements are met, such as that an individual is taken to a county-designated facility. Typically, one first interacts with the LPS Act through a "5150" hold initiated by a peace officer or other person authorized by a county, who must determine and document that the individual meets the standard for a 5150 hold. A county-designated facility is authorized to then involuntarily detain an individual for up to 72 hours for evaluation and treatment if they are determined to be, as a result of a mental health disorder, a danger to self or others, or gravely disabled. The professional person in charge of the county-designated facility is required to assess an individual to determine the appropriateness of the involuntary detention prior to admitting the individual. Subject to various conditions, a person who is found to be a danger to self or others, or gravely disabled, can be subsequently involuntarily detained for an initial up-to 14 days for intensive treatment, an additional 14 days (or up to an additional 30 days in counties that have opted to provide this additional up-to 30 day intensive treatment episode), and ultimately a conservatorship, which is typically for up to a year and may be extended as appropriate.
- Riese hearings. DHCS's website includes the handbook "Rights for Individuals in Mental Health Facilities," which states that a capacity hearing, also called a Riese hearing, may be held to determine whether an individual can refuse treatment with medications. The capacity hearing is conducted by a hearing officer at the facility where the individual is receiving treatment or by a judge in court. The hearing officer will determine whether the individual has the capacity to consent to or refuse medication as a form of treatment. An individual's representative helps them prepare for the hearing and will answer questions or discuss concerns that they may have about the hearing process. If an individual disagrees with the capacity hearing decision, they may appeal the decision to a superior court or to a court of appeal. Their patients' rights advocate or attorney can assist them with filing an appeal.
The first of these hearings typically occur during the initial 72 hour hold. When a patient's condition necessitates an additional hold beyond the initial 72 hour and 14 day periods, a certification review hearing is held to determine that the patient still meets the criteria to be held at the beginning of each proposed hold. In addition to a certification review hearing, a new Riese hearing may be held to determine the patient's incapacity to refuse treatment prior to each new hold. The hearings impacted by this bill are those for an additional 14 day hold, initial up-to 30 day hold, and additional up-to 30 day hold. Under current law, Riese hearings are required to be heard within 24 hours of the filing of the petition whenever possible. Twenty-four hour delays are permitted if parties need additional time to prepare or to accommodate county policies regarding the scheduling of hearings. However, current law states that hearings cannot be held beyond 72 hours of the filing of the petition.
According to the Author
It should always be our goal to get people with serious mental illnesses into voluntary treatment, however it is a sad reality that some severely mentally ill individuals lack the capacity to recognize their illness or to seek help for it. The author continues that in some of these cases, a person is so ill that they become a danger to themselves or others, or fall into the category of being gravely disabled. In these scenarios, it is sometimes necessary to involuntarily confine and treat a patient in order to stabilize them with the goal of restoring their capacity and helping them live a fuller life; something we all want for our fellow human beings. The author states that it is appropriately a high bar under existing law to place someone into an involuntary hold and in these situations we have a tremendous obligation to the person being held to ensure they receive the appropriate care. The author argues that unfortunately, under existing law, involuntary treatment during a hold can be discontinued when it is not clinically indicated to do so, simply because a person is in the process of transitioning from one hold stage to another. The author concludes that this bill allows the continuation of treatment and ensures a patient's due process rights are protected.
Arguments in Support
The California State Association of Psychiatrists (CSAP) are sponsoring this bill, stating that it will modify Reise hearings such that the timeframe covered by judicial determination of incapacity to refuse treatment with antipsychotic medication applies to all periods of involuntary detention, not just the specific phase of involuntary detention under which the Riese was filed, thereby minimizing redundant additional Riese hearings and the dangers of clinically contraindicated interruption of medication treatment. CSAP argues that medications must be carefully titrated and monitored; stopping or interrupting such medication at arbitrary points during involuntary detention, based on local court rules, exposes patients to unjustified clinical risks and prolong the length of stay in inpatient settings. CSAP concludes that nothing in this bill would alter the current ability of individuals to petition for the discontinuation of treatment.
Arguments in Opposition
Various patients and civil rights groups oppose this bill, including the ACLU, Cal Voices, and Disability Rights California (DRC). These organizations argue that this bill rolls back the fundamental patients' rights endorsed by the state Supreme Court in Riese v. St. Mary's Medical Center and Hospital, which requires a judicial determination of incapacity before involuntary medication can occur, in an effort to address an alleged systemic health care gap that has not been substantiated by data or research. Cal Voices argues that the provisions of this bill are not needed as existing law does not allow for gaps in involuntary hold orders, and any gap is caused by participants in the court system and not the existing law. DRC argues that this bill erodes the fundamental rights to bodily integrity and privacy, which is especially important given the extreme side effects from psychiatric medications. According to DRC one study found 15 to 30% of patients over the age of 45 developed Tardive Dyskinesia, a severe and permanent movement disorder, after one year of treatment from psychiatric medication. Newer antipsychotics are associated with metabolic syndrome, which is important as patients with serious mental illness have higher rates of obesity, diabetes, and cardiovascular disease, dying up to 10 years earlier than non-mentally ill patients from medical problems. The ACLU states that over 30 years ago the Legislature negotiated and researched for two years how to interpret the Riese holding into current law in a way that was workable for hospitals while also protecting civil rights to the greatest extent possible. The ACLU concludes that the harm this bill may create by loosening regulations around the practice of forcing medication on nonconsenting adults, without any research, data, or evaluation of impact, far outweighs any potential benefit.
FISCAL COMMENTS
According to the Assembly Appropriations Committee, costs of an unknown amount, potentially more than $150,000 annually, to DHCS to collect data from facilities and add the data to a report DHCS is already required to prepare and publish (General Fund).
According to the Legislative Analyst's Office, the General Fund faces a structural deficit in the tens of billions of dollars over the next several fiscal years.
VOTES
SENATE FLOOR: 39-0-1
YES: Alvarado-Gil, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dahle, Dodd, Durazo, Eggman, Glazer, Gonzalez, Grove, Hurtado, Jones, Laird, Limón, McGuire, Menjivar, Min, Newman, Nguyen, Niello, Ochoa Bogh, Padilla, Portantino, Roth, Rubio, Seyarto, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener, Wilk
ABS, ABST OR NV: Allen
ASM HEALTH: 16-0-0
YES: Bonta, Waldron, Aguiar-Curry, Arambula, Wendy Carrillo, Flora, Haney, Jones-Sawyer, Maienschein, McCarty, Joe Patterson, Rodriguez, Sanchez, Santiago, Lowenthal, Pellerin
ASM JUDICIARY: 10-0-2
YES: Kalra, Dixon, Bauer-Kahan, Connolly, Haney, Maienschein, McKinnor, Pacheco, Reyes, Sanchez
ABS, ABST OR NV: Bryan, Joe Patterson
ASM APPROPRIATIONS: 14-0-1
YES: Wicks, Sanchez, Arambula, Bryan, Calderon, Wendy Carrillo, Dixon, Mike Fong, Grayson, Haney, Hart, Pellerin, Ta, Villapudua
ABS, ABST OR NV: Jim Patterson
UPDATED
VERSION: August 20, 2024
CONSULTANT: Riana King / HEALTH / (916) 319-2097 FN: 0004199
SENATE THIRD READING
STR Bill Id:SB 1184
Author:(Eggman)
As Amended Ver:June 26, 2024
Majority vote
SUMMARY
Permits, in "exigent circumstances," an order for involuntary treatment with antipsychotic medication that applied during the prior detention period to continue until a new hearing for a determination of the person's capacity to refuse treatment occurs; requires the capacity hearing to be held on an expedited basis; and requires a facility where such an extension of involuntary treatment occurs to report specified data to the Department of Health Care Services (DHCS). Sunsets the provisions of this bill on January 1, 2030.
Major Provisions
COMMENTS
- Lanterman-Petris-Short Act (LPS Act) involuntary detentions. The LPS Act provides for involuntary detentions for varying lengths of time for the purpose of evaluation and treatment, provided certain requirements are met, such as that an individual is taken to a county-designated facility. Typically, one first interacts with the LPS Act through a "5150" hold initiated by a peace officer or other person authorized by a county, who must determine and document that the individual meets the standard for a 5150 hold. A county-designated facility is authorized to then involuntarily detain an individual for up to 72 hours for evaluation and treatment if they are determined to be, as a result of a mental health disorder, a danger to self or others, or gravely disabled. The professional person in charge of the county-designated facility is required to assess an individual to determine the appropriateness of the involuntary detention prior to admitting the individual. Subject to various conditions, a person who is found to be a danger to self or others, or gravely disabled, can be subsequently involuntarily detained for an initial up-to 14 days for intensive treatment, an additional 14 days (or up to an additional 30 days in counties that have opted to provide this additional up-to 30 day intensive treatment episode), and ultimately a conservatorship, which is typically for up to a year and may be extended as appropriate.
- Riese hearings. DHCS's website includes the handbook "Rights for Individuals in Mental Health Facilities," which states that a capacity hearing, also called a Riese hearing, may be held to determine whether an individual can refuse treatment with medications. The capacity hearing is conducted by a hearing officer at the facility where the individual is receiving treatment or by a judge in court. The hearing officer will determine whether the individual has the capacity to consent to or refuse medication as a form of treatment. An individual's representative helps them prepare for the hearing and will answer questions or discuss concerns that they may have about the hearing process. If an individual disagrees with the capacity hearing decision, they may appeal the decision to a superior court or to a court of appeal. Their patients' rights advocate or attorney can assist them with filing an appeal.
The first of these hearings typically occur during the initial 72 hour hold. When a patient's condition necessitates an additional hold beyond the initial 72 hour and 14 day periods, a certification review hearing is held to determine that the patient still meets the criteria to be held at the beginning of each proposed hold. In addition to a certification review hearing, a new Riese hearing may be held to determine the patient's incapacity to refuse treatment prior to each new hold. The hearings impacted by this bill are those for an additional 14 day hold, initial up-to 30 day hold, and additional up-to 30 day hold. Under current law, Riese hearings are required to be heard within 24 hours of the filing of the petition whenever possible. Twenty-four hour delays are permitted if parties need additional time to prepare or to accommodate county policies regarding the scheduling of hearings. However, current law states that hearings cannot be held beyond 72 hours of the filing of the petition.
According to the Author
It should always be our goal to get people with serious mental illnesses into voluntary treatment, however it is a sad reality that some severely mentally ill individuals lack the capacity to recognize their illness or to seek help for it. The author continues that in some of these cases, a person is so ill that they become a danger to themselves or others, or fall into the category of being gravely disabled. In these scenarios, it is sometimes necessary to involuntarily confine and treat a patient in order to stabilize them with the goal of restoring their capacity and helping them live a fuller life; something we all want for our fellow human beings. The author states that it is appropriately a high bar under existing law to place someone into an involuntary hold and in these situations we have a tremendous obligation to the person being held to ensure they receive the appropriate care. The author argues that unfortunately, under existing law, involuntary treatment during a hold can be discontinued when it is not clinically indicated to do so, simply because a person is in the process of transitioning from one hold stage to another. The author concludes that this bill allows the continuation of treatment and ensures a patient's due process rights are protected.
Arguments in Support
The California State Association of Psychiatrists (CSAP) are sponsoring this bill, stating that it will modify Reise hearings such that the timeframe covered by judicial determination of incapacity to refuse treatment with antipsychotic medication applies to all periods of involuntary detention, not just the specific phase of involuntary detention under which the Riese was filed, thereby minimizing redundant additional Riese hearings and the dangers of clinically contraindicated interruption of medication treatment. CSAP argues that medications must be carefully titrated and monitored; stopping or interrupting such medication at arbitrary points during involuntary detention, based on local court rules, exposes patients to unjustified clinical risks and prolong the length of stay in inpatient settings. CSAP concludes that nothing in this bill would alter the current ability of individuals to petition for the discontinuation of treatment.
Arguments in Opposition
Various patients and civil rights groups oppose this bill, including the ACLU, Cal Voices, and Disability Rights California (DRC). These organizations argue that this bill rolls back the fundamental patients' rights endorsed by the state Supreme Court in Riese v. St. Mary's Medical Center and Hospital, which requires a judicial determination of incapacity before involuntary medication can occur, in an effort to address an alleged systemic health care gap that has not been substantiated by data or research. Cal Voices argues that the provisions of this bill are not needed as existing law does not allow for gaps in involuntary hold orders, and any gap is caused by participants in the court system and not the existing law. DRC argues that this bill erodes the fundamental rights to bodily integrity and privacy, which is especially important given the extreme side effects from psychiatric medications. According to DRC one study found 15 to 30% of patients over the age of 45 developed Tardive Dyskinesia, a severe and permanent movement disorder, after one year of treatment from psychiatric medication. Newer antipsychotics are associated with metabolic syndrome, which is important as patients with serious mental illness have higher rates of obesity, diabetes, and cardiovascular disease, dying up to 10 years earlier than non-mentally ill patients from medical problems. The ACLU states that over 30 years ago the Legislature negotiated and researched for two years how to interpret the Riese holding into current law in a way that was workable for hospitals while also protecting civil rights to the greatest extent possible. The ACLU concludes that the harm this bill may create by loosening regulations around the practice of forcing medication on nonconsenting adults, without any research, data, or evaluation of impact, far outweighs any potential benefit.
FISCAL COMMENTS
According to the Assembly Appropriations Committee, costs of an unknown amount, potentially more than $150,000 annually, to DHCS to collect data from facilities and add the data to a report DHCS is already required to prepare and publish (General Fund).
According to the Legislative Analyst's Office, the General Fund faces a structural deficit in the tens of billions of dollars over the next several fiscal years.
VOTES
SENATE FLOOR: 39-0-1
YES: Alvarado-Gil, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dahle, Dodd, Durazo, Eggman, Glazer, Gonzalez, Grove, Hurtado, Jones, Laird, Limón, McGuire, Menjivar, Min, Newman, Nguyen, Niello, Ochoa Bogh, Padilla, Portantino, Roth, Rubio, Seyarto, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener, Wilk
ABS, ABST OR NV: Allen
ASM HEALTH: 16-0-0
YES: Bonta, Waldron, Aguiar-Curry, Arambula, Wendy Carrillo, Flora, Haney, Jones-Sawyer, Maienschein, McCarty, Joe Patterson, Rodriguez, Sanchez, Santiago, Lowenthal, Pellerin
ASM JUDICIARY: 10-0-2
YES: Kalra, Dixon, Bauer-Kahan, Connolly, Haney, Maienschein, McKinnor, Pacheco, Reyes, Sanchez
ABS, ABST OR NV: Bryan, Joe Patterson
ASM APPROPRIATIONS: 14-0-1
YES: Wicks, Sanchez, Arambula, Bryan, Calderon, Wendy Carrillo, Dixon, Mike Fong, Grayson, Haney, Hart, Pellerin, Ta, Villapudua
ABS, ABST OR NV: Jim Patterson
UPDATED
VERSION: June 26, 2024
CONSULTANT: Riana King / HEALTH / (916) 319-2097 FN: 0004034
Date of Hearing: August 7, 2024
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Buffy Wicks, Chair
SBPCA Bill Id:SB 1184
Author:(Eggman) – As Amended Ver:June 26, 2024
Policy Committee: | Health | Vote: | 16 - 0 |
Judiciary | 10 - 0 | ||
|
|
Urgency: No State Mandated Local Program: No Reimbursable: No
SUMMARY:
This bill allows, in “exigent circumstances,” an order for a person’s involuntary treatment with antipsychotic medication (“treatment”) that applied during the prior detention period to continue until a new hearing for a determination of the person’s capacity to refuse treatment (“capacity hearing”) occurs; requires the capacity hearing to be held on an expedited basis; and requires a facility where such an extension of involuntary treatment occurs to report specified data to the Department of Health Care Services (DHCS).
Specifically, this bill:
- Requires, under exigent circumstances as specified, upon the filing of a petition for a capacity hearing, a capacity hearing be held on an expedited basis and as soon as reasonably practicable and within 24 hours whenever possible.
- Clarifies that a capacity hearing may be conducted by remote means at the facility where the person subject to the order is receiving treatment, as specified.
- Clarifies that a determination that a person does not have the capacity to refuse treatment during a 72-hour or 14-day detention period remain in effect for the duration of the detention period or for the duration of both periods together.
- Clarifies that the treating physician of a person who is being detained involuntarily for treatment may request a new capacity hearing during the 48 hours prior to the end of the person’s detention period when it appears necessary that the person be detained for a subsequent detention period and their capacity has not been restored.
- Provides that a determination that a person does not have the capacity to refuse treatment during specified detention periods remains in effect until one of the following occurs, whichever occurs first:
- The treating physician judges the person’s capacity has been restored or the person no longer meets the criteria for involuntary detention, as defined.
- The court or hearing officer determines the person’s capacity is restored.
- The time limit for the detention period expires.
- Requires, under exigent circumstances and upon the attestation of such exigent circumstances being documented in the person’s medical record, and if a petition for a new determination of capacity has been filed, an order for treatment remain in effect at the beginning of a detention period, only until a court holds a new hearing and issues a new determination of capacity.
- Requires the facility where such an extension of involuntary treatment occurs to report the following to DHCS after the expedited capacity hearing:
- The date and time when the physician or facility originally submitted a petition to request a hearing to determine a person’s capacity to refuse treatment with antipsychotic medication.
- The date when the applicable detention period was scheduled to expire.
- The date and time when the attestation of exigent circumstances was documented in the person’s medical record.
- The reason for the delay of the originally requested capacity hearing, if known.
- The date and time when the capacity hearing was held.
- Requires, each May 1 beginning in 2026, DHCS to compile the information it receives from facilities pursuant to this subdivision and include the data in a report that is already required in statute.
- Sunsets on January 1, 2030.
FISCAL EFFECT:
Costs of an unknown amount, potentially more than $150,000 annually, to DHCS to collect data from facilities and add the data to a report DHCS is already required to prepare and publish (General Fund).
According to the Legislative Analyst’s Office, the General Fund faces a structural deficit in the tens of billions of dollars over the next several fiscal years.
COMMENTS:
- Purpose. This bill is sponsored by the California State Association of Psychiatrists (CSAP). According to the author:
…[I]t is sometimes necessary to involuntarily confine and treat a patient in order to stabilize them with the goal of restoring their capacity and helping them live a fuller life…Unfortunately, under existing law, involuntary treatment during a hold can be discontinued when it is not clinically indicated to do so, simply because a person is in the process of transitioning from one hold stage to another. This bill allows the continuation of treatment and ensures a patient’s due process rights are protected.
- Background.
Involuntary Detentions. The Lanterman-Petris-Short (LPS) Act provides for involuntary detentions for varying lengths of time for the purpose of evaluation and treatment, provided certain requirements are met, such as that an individual is taken to a county-designated facility. Typically, a peace officer or other person authorized by a county must determine and document that an individual meets the standard for a “5150” hold. A county-designated facility is authorized to then involuntarily detain the individual for up to 72 hours for evaluation and treatment if the individual is determined to be, as a result of a mental health disorder, a danger to self or others, or “gravely disabled.” The professional person in charge of the county-designated facility is required to assess the individual to determine the appropriateness of the involuntary detention prior to admitting the individual. Subject to certain conditions, a person who is found to be a danger to self or others, or gravely disabled, can be subsequently involuntarily detained for up to 14 days for intensive treatment, an additional 14 days (or up to an additional 30 days in counties that have opted to provide this additional intensive treatment episode), and may ultimately be subject to a conservatorship, which typically lasts for up to a year and may be extended as appropriate.
Capacity Hearings. A capacity hearing, also called a Riese hearing, is conducted by a hearing officer at the facility where an individual is receiving treatment, or by a judge in court, to determine whether the individual has the capacity to refuse treatment with antipsychotic medications. An individual’s patients’ rights advocate or attorney helps them prepare for the hearing and answer questions or discuss concerns that they may have about the hearing process. If the individual disagrees with the capacity hearing decision, they may appeal the decision to a superior court, or to a court of appeal. The first capacity hearing typically occurs during the initial 72-hour hold. When a patient’s condition necessitates an additional hold beyond the initial 72-hour and 14-day periods, a certification review hearing is held to determine that the patient still meets the criteria to be held at the beginning of each proposed hold. In addition, a new Riese hearing must be held to determine the patient’s capacity to refuse treatment prior to each new hold. The hearings impacted by this bill are those for an additional 14 day hold, initial up-to 30 day hold, and additional up-to 30 day hold.
Policy Question. The Assembly Health Committee analysis of the bill states that no data demonstrating that gaps in hearings are a systemic problem and questions whether allowing the continuance of involuntary treatment beyond the date when it is scheduled to end and until a hearing is held is an appropriate solution to a problem, if the problem exists.
Analysis Prepared by: Allegra Kim / APPR. / (916) 319-2081
Date of Hearing: June 25, 2024
ASSEMBLY COMMITTEE ON JUDICIARY
Ash Kalra, Chair
SBPCA Bill Id:SB 1184
Author:(Eggman) – As Amended Ver:May 2, 2024
As Proposed to be Amended
SENATE VOTE: 39-0
SUBJECT: MENTAL HEALTH: INVOLUNTARY TREATMENT: ANTIPSYCHOTIC MEDICATION
KEY ISSUES:
- WHEN THERE IS A DELAY IN CONDUCTING A HEARING TO DETERMINE A PERSON’S CAPACTIY TO REFUSE TREATMENT WITH ANTIPSYCHOTIC MEDICATION THAT COINCIDES WITH THE PERIOD WHEN THEY ARE DETAINED PURSUANT TO THE LPS ACT, SHOULD AN ORDER FOR INVOLUNTARY ADMINISTRATION OF ANTIPSYCHOTIC MEDICATION BE EXTENDED, UNDER EXIGENT CIRCUMSTANCES, UNTIL ANOTHER CAPACITY HEARING IS HELD?
- IN ORDER TO PROTECT AGAINST POTENTIAL ABUSE, SHOULD THERE BE A SUNSET ON THIS PROCESS, AND SHOULD DATA ABOUT SUCH EXTENSIONS BE REPORTED TO THE DEPARTMENT OF HEALTH CARE SERVICES?
SYNOPSIS
The LPS Act provides for involuntary detentions for varying lengths of time for the purpose of evaluation and treatment, provided certain requirements are met, such as that an individual is taken to a county-designated facility. The LPS Act allows for the involuntary administration of antipsychotic drugs to a person who is detained if that person lacks the capacity to consent to administration of the medication. However, as held in Riese v. St. Mary's Hospital & Medical Center (1987) 209 Cal.App.3d 1303, persons cannot be given antipsychotic drugs in nonemergency situations without their informed consent absent a judicial determination of incompetence. A person has a right to a “Riese hearing” for every period during which they are detained.
The bill in print would require an order for treatment with antipsychotic medication to remain in effect at the beginning of a detention period for various involuntary holds provided that a petition for a new determination on the question of capacity has been filed, as specified, and for the order to remain in effect until a capacity determination is conducted. Arguably, this means that the order for treatment extends for days after the last detention period—during which a person was determined to lack capacity to refuse medication—has ended. In effect, this would result in a de facto extension of the order for involuntary treatment that could last for days beyond the point of when it should have ended. The bill in print does not require that there must be a true “gap” (presumably between the time when a new capacity hearing had been requested, but not held), or that there is any special or exigent circumstance to justify allowing an order that should have expired to be extended in order to bridge such a gap.
The author proposes amendments that address both lack of data about this problem and also address, it is hoped at least, the lack of a timely hearing and protection of the detained person’s due process rights under the bill in print. Whereas the bill in print allows an extension of involuntary medication at any time after the end of one detention period as long as a petition for a capacity determination has been submitted and allows the order to continue until the hearing occurs (which could take as long as 72 hours), the author’s amendments would limit the ability to extend an involuntary medication order to situations where “exigent circumstances” exist. Among other things, the amendments require that an initial petition requesting a Riese hearing must have been submitted at least 8 hours prior to the end of the detention period. Then, in a case where there has been a delay in the scheduling of the hearing, if the treating physician submits an “attestation” about the exigent circumstances of the individual person and documents the writing in the person’s medical record, involuntary medication could be continued after the end of the detention period and a Riese hearing would have to be held on an expedited basis (within 24 hours). The amendments also make clear that a capacity hearing can be requested starting 48 hours before the end of a detention period, which should encourage timely requests for Riese hearings more common and the extension of involuntary medication (and the exigent circumstance procedure) unnecessary. The amendments are incorporated in the SUMMARY, below, and explained in the analysis.
The bill is sponsored by the California State Association of Psychiatrists and opposed by civil liberties and legal organizations, including Disability Rights California and ACLU California Action. It is not clear if and how the author’s amendments affect the groups that are opposed to the bill in print.
SUMMARY: Allows, in “exigent circumstances,” an order for involuntary administration of antipsychotic medication that applied during the prior detention period pursuant to the LPS Act to continue until a capacity hearing occurs; requires the capacity hearing to be held on an expedited basis; and requires a facility where such an “exigent” extension of involuntary medication occurs, to report specified data about the extension to the Department of Health Care Services. Specifically, this bill:
- Provides that under “exigent circumstances” (see 9), below), a hearing to determine a person’s capacity to refuse treatment with antipsychotic medication shall be held to determine the person’s capacity to refuse treatment with antipsychotic medication on an expedited basis as soon as reasonably practicable and within 24 hours.
- Clarifies that, subject to any applicable rules of court, a capacity hearing may be conducted by remote means in an appropriate location at the facility where the person is receiving treatment as authorized pursuant to Section 367.76 of the Code of Civil Procedure so long as the hearing would be compatible with, and the least disruptive of, the treatment being provided to the person as required by subdivision (b) of Section 5334.
- Clarifies that, unless otherwise specified in law, and except as applied to Sections 5150 and 5250 of the Welfare and Institutions Code, a treating physician may request a hearing for a new determination of a person’s capacity to refuse treatment with antipsychotic medication at any time in the 48 hours prior to the end of the duration of the current detention period when it reasonably appears to the treating physician that it is necessary for the person to be detained for a subsequent detention period and the person’s capacity has not been restored.
- Clarifies existing law to state that a determination of a person’s capacity to refuse treatment with antipsychotic medication during the detention period described in Section 5150 or 5250 remains in effect for the duration of the detention period described in Section 5150, as well as for the duration of the detention period described in Section 5250, or for the duration of both periods together, until one of the following occurs, whichever occurs first in time:
- In the judgment of the person’s treating physician, the person’s capacity has been restored or the person no longer meets the criteria for involuntary detention, according to standards in existing law.
- The court or hearing officer determines that the person’s capacity is restored.
- The time limit for the detention period described in Section 5150, Section 5250, or for the detention period of both periods together, expires.
- Provides that under “exigent circumstances” and upon the attestation of such exigent circumstances being documented in the person’s medical record, an order for treatment with antipsychotic medication shall remain in effect at the beginning of the next detention period, provided that a petition for a new determination on the question of capacity has been filed and shall remain in effect only until a hearing on that petition for that detention period is held on an expedited basis to determine the person’s capacity to refuse treatment with antipsychotic medication as soon as reasonably practicable and within 24 hours.
- Requires, in any case where an attestation of exigent circumstances is documented in the person’s medical record and an order for treatment with antipsychotic medication remains in effect, the facility where the person is receiving treatment shall report all of the following to the State Department of Health Care Services after the capacity hearing is held on an expedited basis:
- The date when the physician or facility originally requested a hearing to determine a person’s capacity to refuse treatment with antipsychotic medication under this section.
- The date when the applicable detention period was scheduled to expire prior to the attestation being submitted.
- The date when the attestation of exigent circumstances was documented in the person’s medical file.
- The reason for the delay of the originally requested capacity hearing, if known, including but not limited to, the lack of timely scheduling of the hearing, the unavailability of a hearing officer, court closure, remote hearing technology, the person, or facility staff.
- The number of hours that passed after the attestation was documented in the person’s medical record until the capacity hearing was held on an expedited basis.
- Requires, by May 1, 2026 and by May 1st of every year thereafter, the Department of Health Care Services to compile the information it receives from facilities pursuant to this subdivision during the prior calendar year, as well as information about the county or city and county where the facility that submitted the information is located, and report the information pursuant to the requirements of existing law.
- Clarifies that the expedited hearing process does not apply to a person whose capacity has been restored or affect the requirement that a hearing is conducted to determine a person’s capacity to refuse treatment with antipsychotic medication within the applicable time limits, other than to require that such a hearing is held on an expedited basis.
- Provides that in order for there to be exigent circumstances necessitating an expedited hearing pursuant to the bill, all of the following must be true:
- A petition for a new determination on the question of capacity pursuant to Section 5334 has been filed prior to the expiration of the current order and in a period of time that provides a reasonable opportunity for a hearing to be held prior to the expiration of the current order and at least 8 hours prior to the order’s expiration.
- There has been a delay in a hearing to determine a person’s capacity to refuse treatment with antipsychotic medication made pursuant to Section 5334 creating a risk that the existing capacity determination may expire before a new capacity determination is made.
- The person’s treating physician attests in a written opinion, which shall be maintained in the person’s medical record, that one of the following would likely occur if there were a lapse in the person’s treatment with antipsychotic medication:
- An emergency described in subdivision (m) of Section 5008.
- A serious deterioration or decompensation of the person’s mental health condition that could result in significant harm to the person based upon the facts of the person’s individual circumstances, which the treating physician explains in their written attestation of exigent circumstances.
- Limits the use of the extension of treatment with antipsychotic medication on the basis of exigent circumstance process described above from being invoked for a person only one time during the applicable detention period covered by the existing capacity determination.
- Makes 1) and 4) – 10), above, inoperative as of January 1, 2030.
- Requires the Department of Health Care Services, beginning with the report due May 1, 2026, to report the all of the information reported by a facility pursuant to 7), above.
- Makes 12) inoperative on January 1, 2030.
EXISTING LAW:
- Establishes the LPS Act to end the inappropriate, indefinite, and involuntary commitment of persons with mental health disorders, developmental disabilities, and chronic alcoholism, as well as to safeguard a person’s rights, provide prompt evaluation and treatment, and provide services in the least restrictive setting appropriate to the needs of each person. (Welfare and Institutions Code Section 5000 et seq. All further statutory references are to this code, unless otherwise indicated.)
- Permits involuntary detention of a person deemed to be a danger to self or others, or “gravely disabled,” as defined, for the following periods:
- Up to 72 hours for evaluation and treatment in county-designated facilities. (Section 5150 (a).)
- Up to an additional 14 days (after the 5150 hold) for intensive treatment related to the mental health disorder or impairment by chronic alcoholism. (Section 5250.)
- Up to an additional 14 days, or 30 days after the 5250 hold described in 2b) for further intensive treatment related to the mental health disorder or impairment by chronic alcoholism. (Sections 5260, 5270.15.)
- Up to an additional 30 days if, after 15 days of the 30-day period of intensive treatment pursuant to this article, but at least 7 days before expiration of the 30 days, the professional staff of the agency or facility treating the person finds that the person remains gravely disabled as a result of a mental disorder or impairment by chronic alcoholism and the person remains unwilling or unable to accept treatment voluntarily. (Section 5270.70 (a).)
- Defines “gravely disabled,” for purposes of evaluating and treating an individual who has been involuntarily detained or for placing an individual in conservatorship, as a condition in which a person, as a result of a mental health disorder, a severe substance use disorder (SUD), or both, is unable to provide for their basic personal needs for food, clothing, shelter, personal safety, or necessary medical care. (Section 5008 (h)(1).)
- Defines “antipsychotic medication” as any medication customarily prescribed for the treatment of symptoms of psychoses and other severe mental and emotional disorders. (Section 5008 (l).)
- Defines “emergency” to mean a situation in which action to impose treatment over the person’s objection is immediately necessary for the preservation of life or the prevention of serious bodily harm to the patient or others, and it is impracticable to first gain consent. It is not necessary for harm to take place or become unavoidable prior to treatment. (Section 5008 (m).)
- Permits antipsychotic medication to be administered to any person subject to various involuntary detention lengths, as specified, if that person does not refuse that medication following disclosure of the right to refuse medication, as well as information required to be given to persons, as specified. (Section 5332.)
- Requires medication, if any person subject to various specified involuntary detention lengths and for whom antipsychotic medication has been prescribed orally refuses or gives other indication of refusal of treatment with that medication, to be administered only when treatment staff have considered and determined that treatment alternatives to involuntary medication are unlikely to meet the needs of the patient, and upon a determination of that person’s incapacity to refuse the treatment in a capacity hearing (known as a “Riese hearing”) held for that purpose. (Section 5332.)
- Requires persons subject to capacity hearings, as specified, to have a right to representation by an advocate or legal counsel. Requires capacity hearings to be heard within 24 hours of the filing of the petition whenever possible. (Sections 5333, 5334.)
- Requires any determination of a person’s incapacity to refuse treatment with antipsychotic medication to remain in effect only for the duration of the up-to 72 hours of detention for evaluation and treatment and the initial up-to 14 days of involuntary detention for intensive treatment, or both, or until capacity has been restored according to standards developed, as specified, or by court determination, whichever is sooner. (Section 5336.)
- Allows after a minimum of 15 days of the 30-day period of intensive treatment described in 8), an additional 30-day period of intensive treatment, but requires the professional person in charge of the facility providing intensive treatment to the person to file a petition in the superior court for the county in which the facility providing intensive treatment is located, seeking approval for up to an additional 30 days of intensive treatment at least 7 days before the expiration of the original 30 days and must be heard within two court days of the petition. (Section 5270.70.)
FISCAL EFFECT: As currently in print this bill is keyed non-fiscal.
COMMENTS: This bill, sponsored by the California State Association of Psychiatrists, seeks to address what the author and sponsor describe as a disconnect in current law that sometimes leads to a “gap” in the ability of a psychiatrist to administer anti-psychotropic medication to a person who previously has been determined to lack capacity to consent to such treatment in a capacity hearing. The gap reportedly occurs when one detention period ends, and another detention period begins. Although the law provides for overlap between detention periods, it does not provide any overlap between capacity determinations—that are required to be provided for each detention period. According to the author:
In an ideal circumstance, these two hearings overlap in time and there are no gaps in treatment. However, because of the idiosyncrasies of local court calendars and procedures, this is not always the case. When Riese Hearings fall within one of these procedural gaps it leads to the interruption of desperately needed treatment for the patient.
The author and sponsor assert that this gap can be harmful to patients because, “Stopping or interrupting such medication, based on a timing quirk created by local court rules, exposes patients to unjustified clinical risks.” According to the author, the bill is intended to be applied in limited circumstances:
This legislation is meant to be a stopgap measure for those instances where the timelines of these hearings create a contraindicated stoppage of medication, not to be a reason to extend the timelines for all Riese Hearings and allow the medication order to remain in effect indefinitely.
Background about the LPS Act and involuntary detentions. The LPS Act provides for involuntary detentions for varying lengths of time for the purpose of evaluation and treatment, provided certain requirements are met, such as that an individual is taken to a county-designated facility. Typically, one first interacts with the LPS Act through a “5150” hold initiated by a peace officer or other person authorized by a county, who must determine and document that the individual meets the standard for a 5150 hold. A county-designated facility is authorized to then involuntarily detain an individual for up to 72 hours for evaluation and treatment if they are determined to be, as a result of a mental health disorder, a danger to self or others, or gravely disabled. The professional person in charge of the county-designated facility is required to assess an individual to determine the appropriateness of the involuntary detention prior to admitting the individual. Subject to various conditions, a person who is found to be a danger to self or others, or gravely disabled, can be subsequently involuntarily detained for an initial up-to 14 days for intensive treatment, an additional 14 days (or up to an additional 30 days in counties that have opted to provide this additional up-to 30 day intensive treatment episode), and ultimately a conservatorship, which is typically for up to a year and may be extended as appropriate.
Throughout this process, existing law requires specified entities to notify family members or others identified by the detained individual of various hearings, where it is determined whether a person will be further detained or released, unless the detained person requests that this information is not provided. Additionally, a person cannot be found to be “gravely disabled” if they can survive safely without involuntary detention with the help of responsible family, friends, or others who indicate they are both willing and able to help. A person can also be released prior to the end of intensive treatment if they are found to no longer meet the criteria of a detention, or agree to voluntarily participate in treatment.
Riese hearings. A “Riese hearing” is so named after an appellate court decision, Riese v. St. Mary's Hospital & Medical Center (1987) 209 Cal.App.3d 1303, which held that, absent a judicial determination of incompetence, appellants cannot be given antipsychotic drugs in nonemergency situations without their informed consent. (Id., at p. 1320.) The plaintiffs in Riese were institutionalized patients who sought a determination from the courts that their consent was required prior to the administration of antipsychotic drugs. The appellate court observed:
Judicial determination of the specific competency to consent to drug treatment should focus primarily upon three factors: (a) whether the patient is aware of his or her situation (e.g., if the court is satisfied of the existence of psychosis, does the individual acknowledge that condition); (b) whether the patient is able to understand the benefits and the risks of, as well as the alternatives to, the proposed intervention (e.g., "an acutely psychotic patient should understand that psychotropic medication carries the risk of dystonic reactions [i.e., abnormal control and coordination of movement] . . . that the benefit is the probable resolution of the psychotic episode; and that alternatives include psychotherapy and milieu therapy, and possibly ECT, but that at least the two former alternatives carry a lower short-term success rate than does medication." (Gutheil & Appelbaum, Clinical Handbook of Psychiatry and the Law, supra, at p. 219)); and (c) whether the patient is able to understand and to knowingly and intelligently evaluate the information required to be given patients whose informed consent is sought (§ 5326.2) and otherwise participate in the treatment decision by means of rational thought processes. (Id., at pp. 1322-1323.)
In practice, a capacity hearing is conducted by a hearing officer at the facility where the individual is receiving treatment, or by a judge in court. The hearing officer or judge will determine whether the individual has the capacity to consent to, or refuse to consent to, the administration of medication as a form of treatment. An individual’s patients’ rights advocate or attorney helps them prepare for the hearing and answer questions or discuss concerns that they may have about the hearing process. If an individual disagrees with the capacity hearing decision, they may appeal the decision to a superior court, or to a court of appeal. (Section 5334 (e).) Their patients’ rights advocate or attorney can assist them with filing an appeal. (Section 5325 (h).)
The first of these hearings typically occurs during the initial 72-hour hold. When a patient’s condition necessitates an additional hold beyond the initial 72-hour and 14-day periods, a certification review hearing is held to determine that the patient still meets the criteria to be held at the beginning of each proposed hold. In addition to a certification review hearing, a new Riese hearing must be held to determine the patient’s incapacity to refuse treatment prior to each new hold. The hearings impacted by this bill are those for an additional 14 day hold, initial up-to 30 day hold, and additional up-to 30 day hold.
The author and sponsors assert that the law does not provide clear authority to hold a capacity hearing prior to the end of a detention period. Thus, they argue, a treating physician must wait until the end of one detention period until a new capacity hearing can be requested. If there is any delay in the hearing, there is a risk that the person could miss a day or more of prescribed medication, which could have adverse consequences.
The author and sponsors seem to have a valid point. While it seems illogical that a physician would be required to wait until the end of a detention period to request a capacity hearing, the law does not specify that the physician may do so. Existing law about detention periods are either silent on the topic, or specify that a new detention period (and right to a hearing) can be requested at the end of the original detention period:
“At the expiration of the 14-day period…” (Section 5260.)
“Upon the completion of a 14-day period of intensive treatment pursuant to Section 5250, the person may be certified for an additional period…” (5270.15 (a).)
While detention periods authorized at probable cause hearings are different than capacity determinations made at a Riese hearing, as a practical matter, hearings about these issues generally occur at the same time. So if a hearing regarding a new detention period does not occur until after the end of the last detention period and the capacity hearing is held at the same time, there could be a period of time during which a physician has no legal authority to prescribe anti-psychotic medication to a person in their care.
This problem could be avoided if the law clearly allowed a treating physician to request a capacity or Riese hearing prior to the end of the applicable detention period. Clarifying that a treating physician may request a capacity determination 48 hours prior to the expiration of the detention period (as proposed by the Author’s amendments, below) would encourage timely requests for capacity hearings so that a person is not involuntarily medicated without a Riese hearing after their last detention period ends.
The bill. Under current law, Riese hearings are required to be heard within 24 hours of the filing of the petition “whenever possible.” (Section 5334 (a).) Twenty-four hour delays are permitted if parties need additional time to prepare or to accommodate county policies regarding the scheduling of hearings. Current law states that hearings cannot be held beyond 72 hours after the filing of the petition. It is possible that a detention period may end—as well as the incapacity determination—before the new capacity hearing is held. This bill seeks to address that possibility.
The bill in print would require an order for treatment with antipsychotic medication to remain in effect at the beginning of a detention period for various involuntary holds provided that a petition for a new determination on the question of capacity has been filed, as specified, and for the order to remain in effect until a capacity determination is conducted. Arguably, this means that the order for treatment extends for days after the last detention period—during which a person was determined to lack capacity to refuse medication—has ended. In effect, this would result in a de facto extension of the order for involuntary treatment that could last for days beyond the point of when it should have ended. The bill in print does not require that there must be proof of a true “gap” (presumably between the time when a new capacity hearing had been requested, but not held), or that there is any special or exigent circumstance, in order to justify allowing an order that should have expired to be extended in order to bridge such a gap. According to the author:
While it should always be our goal to get people with serious mental illnesses into voluntary treatment, it is a sad reality that some severely mentally ill individuals lack the capacity to recognize their illness or to seek help for it. . . . It is, appropriately, a high bar under existing law to place someone into an involuntary hold and in these situations we have a tremendous obligation to the person being held to ensure they receive the appropriate care. Unfortunately, under existing law, involuntary treatment during a hold can be discontinued when it is not clinically indicated to do so, simply because a person is in the process of transitioning from one hold stage to another. This bill preserves due process protections while ensuring that the person can continue to be treated until a determination has been made, or their capacity is restored.
Various patients and civil rights groups oppose this bill, including the ACLU, Cal Voices, and Disability Rights California (DRC). These organizations argue that this bill rolls back the fundamental patients’ rights endorsed by the California Supreme Court in Riese. Opposition groups, most of whom are lawyers and/or patients’ rights advocates that represent patients in Riese hearings, argue that the administrative burden of Riese hearings is low as counties are permitted to hold them informally in the hospital with a patient advocate and a hearing officer from the court presiding. DRC also shared the following anecdote: if a facility plans to place a patient on a new hold and continue involuntary medication, they will time the filing of the new hold with the capacity petition on a day when the capacity petition can be heard by the court. This practice eliminates any gap in involuntary medication treatment that might otherwise occur and is widely utilized throughout the state. To the extent local jurisdictions or individual facilities are struggling with treatment gaps, this is an issue of these entities not utilizing best practices and failing to comply with existing state law requirements.
As the Assembly Health Committee pointed out in its analysis of the bill:
No data has been provided to the Committee to demonstrate that these gaps in hearings are a systemic problem.” Given the flexibility of Riese hearings, which can be scheduled and held quickly, at a mental health treatment facility, and by remoted, means, if there are gaps between capacity hearing, why are they happening? Is it the result of administrative failure on the part of the courts? Are providers failing to file petitions in a timely basis? Is this bill—allowing the continuance of involuntary treatment beyond the date when it is scheduled to end and until a hearing is held an appropriate solution to this problem—if the problem does, in fact, exist?
Author’s amendments. The author proposes amendments that address both lack of data about this problem and also address, it is hoped at least, the lack of a timely hearing and protection of the detained person’s due process rights under the bill in print.
Whereas the bill in print allows an extension of involuntary medication at any time after the end of one detention period as long as a petition for a capacity determination has been submitted and allows the order to continue until the hearing occurs (which could take as long as 72 hours), the author’s amendments would limit the ability to extend an involuntary medication order to situations where “exigent circumstances” exist. Among other things, the amendments require that an initial petition requesting a Riese hearing must have been submitted at least 8 hours prior to the end of the detention period. Then, in a case where there has been a delay in the scheduling of the hearing, if the treating physician submits an “attestation” about the exigent circumstances of the individual person and documents the writing in the person’s medical record, involuntary medication could be continued after the end of the detention period and a Riese hearing would have to be held on an expedited basis (within 24 hours).
The amendments specify that in order for there to be exigent circumstances necessitating an expedited hearing pursuant to the bill, all of the following must be true:
- A petition for a new determination on the question of capacity pursuant to Section 5334 has been filed prior to the expiration of the current order and in a period of time that provides a reasonable opportunity for a hearing to be held prior to the expiration of the current order and at least 8 hours prior to the order’s expiration.
- There has been a delay in a hearing to determine a person’s capacity to refuse treatment with antipsychotic medication made pursuant to Section 5334 creating a risk that the existing capacity determination may expire before a new capacity determination is made.
- The person’s treating physician attests in a written opinion, which shall be maintained in the person’s medical record, that one of the following would likely occur if there were a lapse in the person’s treatment with antipsychotic medication:
- An emergency described in subdivision (m) of Section 5008 (which defines “emergency” to mean “a situation in which action to impose treatment over the person’s objection is immediately necessary for the preservation of life or the prevention of serious bodily harm to the patient or others, and it is impracticable to first gain consent. It is not necessary for harm to take place or become unavoidable prior to treatment”).
- A serious deterioration or decompensation of the person’s mental health condition that could result in significant harm to the person based upon the facts of the person’s individual circumstances, which the treating physician explains in their written attestation of exigent circumstances.
In order to prevent recurring “exigent circumstances” and recurring 24-hour delays, the amendments clarify that the extension of treatment with antipsychotic medication on the basis of exigent circumstance process described above cannot be invoked for a person more than one time during the applicable detention period covered by the existing capacity determination.
In order to collect data about how often this process is used, the amendments require the facility where the person is receiving treatment to report, in any case where an attestation of exigent circumstances is documented in the person’s medical record and an order for treatment with antipsychotic medication remains in effect, all of the following to the State Department of Health Care Services after the capacity hearing is held on an expedited basis:
- The date when the physician or facility originally requested a hearing to determine a person’s capacity to refuse treatment with antipsychotic medication under this section.
- The date when the applicable detention period was scheduled to expire prior to the attestation being submitted.
- The date when the attestation of exigent circumstances was documented in the person’s medical file.
- The reason for the delay of the originally requested capacity hearing, if known, including but not limited to, the lack of timely scheduling of the hearing, the unavailability of a hearing officer, court closure, remote hearing technology, the person, or facility staff.
- The number of hours that passed after the attestation was submitted until the capacity hearing was held on an expedited basis.
The Department of Health Care Services would then be required to compile by May 1, 2026 and by May 1st of every year thereafter, the information it receives from facilities during the prior calendar year, as well as information about the county or city and county where the facility that submitted the information is located, and report the information pursuant to the requirements of existing law.
The amendments make other helpful clarifications to existing law. The amendments clarify all of the following:
- That, subject to any applicable rules of court, a capacity hearing may be conducted by remote means in an appropriate location at the facility where the person is receiving treatment so long as the hearing would be compatible with, and the least disruptive of, the treatment being provided to the person as required by existing law.
- That a determination of a person’s capacity to refuse treatment with antipsychotic medication during the detention period described in Section 5150 or 5250 remains in effect for the duration of the detention period described in Section 5150, as well as for the duration of the detention period described in Section 5250, or for the duration of both periods together, until one of the following occurs, whichever occurs first in time:
- In the judgment of the person’s treating physician, the person’s capacity has been restored or the person no longer meets the criteria for involuntary detention, according to standards in existing law.
- The court or hearing officer determines that the person’s capacity is restored.
- The time limit for the detention period described in Section 5150, Section 5250, or for the detention period of both periods together, expires.
Perhaps most importantly, the amendments provide that, except where more specific laws apply, a treating physician may request a hearing for a new determination of a person’s capacity to refuse treatment with antipsychotic medication at any time in the 48 hours prior to the end of the duration of the current detention period. The only conditions are that it must reasonably appear to the treating physician that it is necessary for the person to be detained for a subsequent detention period, and the person’s capacity (to refuse treatment) has not been restored.
Clarifying that a treating physician may request a new capacity determination 48 hours prior to the expiration of the current detention period would encourage timely requests by physicians for capacity hearings. As a result of a more timely request, the person would not be required to be involuntarily medicated without a hearing after the end of their detention period. This one helpful clarification could make the extension of involuntary medication (as outlined in the bill in print), as well as the one-time extension under “exigent circumstances” and an expedited hearing (as provided in the author’s amendments) completely unnecessary. In any case, the Legislature will have data about this issue and whether or not extension of involuntary medication is necessary after a detention period ends and until a Riese hearing can be held as a result of the reporting requirements proposed by the author’s amendments.
Finally, the amendments include a sunset provision on the expedited hearing for exigent circumstances provision of the bill. Unless altered by a future Legislature, that process – and the reports about its use—will end as of January 1, 2030.
ARGUMENTS IN SUPPORT: The California State Association of Psychiatrists (CSAP), sponsor of the bill, write that the bill “will modify WIC 5336 (Reise Hearings) such that the timeframe covered by judicial determination of incapacity to refuse treatment with antipsychotic medication applies to all periods of involuntary detention, not just the specific phase of involuntary detention under which the Riese was filed, thereby minimizing redundant additional Riese hearings and the dangers of clinically contraindicated interruption of medication treatment.” CSAP goes on to explain why the bill is needed from the perspective of psychiatrists:
Medications must be carefully titrated and monitored; stopping or interrupting such medication at arbitrary points during Lanterman-Petris-Short (LPS) detention, based on local court rules, exposes patients to unjustified clinical risks. This can also prolong the length of stay in inpatient settings. Nothing in SB 1184 would alter the current ability of individuals to petition for the discontinuation of treatment.
ARGUMENTS IN OPPOSITION: ACLU California Action writes that it opposes the bill for many reasons, including the following:
Forcibly medicating an individual, especially with antipsychotic medications that can have significant long-term health impacts, is a grave erosion of bodily autonomy and one of the most serious deprivations of civil rights that is legal in our society. As such, our state’s laws regulating this practice should be crafted with great care. They should be built upon a foundation of data from across the state, engagement with hospitals, counties, and patient advocates, and weighing of medical ethics.
. . .
Courts have held the right to refuse psychiatric medication implicates not only “the patient’s bodily integrity but the patient’s mind, the ‘quintessential zone of human privacy.’” (Riese v. St. Mary’s Hospital, 209 Cal.App.3d 1303, 1317). Allowing a third party to involuntarily administer powerful, mind-altering substances is an extraordinary grant of power, and should not be taken lightly. The harm that SB 1184 may create by loosening regulations around the practice of forcing medication on nonconsenting adults, without any research, data, or evaluation of impact, far outweighs any potential benefit from this bill.
REGISTERED SUPPORT / OPPOSITION:
Support
California State Association of Psychiatrists (sponsor)
Alameda County Families Advocating for The Seriously Mentally Ill
California Academy of Child and Adolescent Psychiatry
Psychiatric Physicians Alliance of California
Opposition
ACLU California Action
Cal Voices
California Association of Mental Health Patients' Rights Advocates
California Peer Watch
Disability Rights California
Mental Health America of California
The Law Foundation of Silicon Valley
Analysis Prepared by: Alison Merrilees / JUD. / (916) 319-2334
Date of Hearing: June 11, 2024
ASSEMBLY COMMITTEE ON HEALTH
Mia Bonta, Chair
SBPCA Bill Id:SB 1184
Author:(Eggman) – As Amended Ver:May 2, 2024
SENATE VOTE: 39-0
SUBJECT: Mental health: involuntary treatment: antipsychotic medication.
SUMMARY: Requires an order for treatment with antipsychotic medication to remain in effect at the beginning of a detention period for various involuntary holds provided that a petition for a new determination on the question of capacity has been filed, as specified. Requires this determination to remain in effect until the court hears a petition for that detention period and issues a decision. Specifically, this bill:
- Authorizes the administration of antipsychotic medication to a person who is involuntarily detained for an additional up-to 30 day period (subsequent to an initial up-to 30 day detention).
- Clarifies that a person who is involuntarily detained for a subsequent up-to 30 day hold has the right to refuse treatment with antipsychotic medication subject to the existing procedures in the Lanterman-Petris-Short Act (LPS Act).
- Requires an order for treatment with antipsychotic medication to remain in effect at the beginning of a detention period for the up-to 14 day detention period for suicidal persons; for an initial up-to 30 day detention period (following an up-to 14 day detention); and, for an additional up-to 30 day detention period (subsequent to an initial up-to 30 day detention), provided that a petition for a new determination on the question of the person’s capacity has been filed.
- Requires this determination to remain in effect until the court hears a petition for that detention period and issues a decision.
EXISTING LAW:
- Establishes the LPS Act to end the inappropriate, indefinite, and involuntary commitment of persons with mental health disorders, developmental disabilities, and chronic alcoholism, as well as to safeguard a person’s rights, provide prompt evaluation and treatment, and provide services in the least restrictive setting appropriate to the needs of each person. Permits involuntary detention of a person deemed to be a danger to self or others, or “gravely disabled,” as defined, for periods of up to 72 hours for evaluation and treatment, or for up-to 14 days and up-to 30 days for additional intensive treatment in county-designated facilities. [Welfare and Institutions Code (WIC) §5000, et seq.]
- Defines “gravely disabled,” for purposes of evaluating and treating an individual who has been involuntarily detained or for placing an individual in conservatorship, as a condition in which a person, as a result of a mental health disorder, a severe substance use disorder (SUD), or both, is unable to provide for their basic personal needs for food, clothing, shelter, personal safety, or necessary medical care. [WIC §5008]
- Defines “antipsychotic medication” as any medication customarily prescribed for the treatment of symptoms of psychoses and other severe mental and emotional disorders. [WIC §5008(l)]
- Permits antipsychotic medication to be administered to any person subject to various involuntary detention lengths, as specified, if that person does not refuse that medication following disclosure of the right to refuse medication, as well as information required to be given to persons, as specified. [WIC §5332]
- Requires medication, if any person subject to various specified involuntary detention lengths and for whom antipsychotic medication has been prescribed orally refuses or gives other indication of refusal of treatment with that medication, to be administered only when treatment staff have considered and determined that treatment alternatives to involuntary medication are unlikely to meet the needs of the patient, and upon a determination of that person’s incapacity to refuse the treatment in a capacity hearing (known as a “Riese hearing”) held for that purpose. [WIC §5332]
- Requires persons subject to capacity hearings, as specified, to have a right to representation by an advocate or legal counsel. Requires capacity hearings to be heard within 24 hours of the filing of the petition whenever possible. [WIC §5333 and §5334]
- Requires any determination of a person’s incapacity to refuse treatment with antipsychotic medication to remain in effect only for the duration of the up-to 72 hours of detention for evaluation and treatment and the initial up-to 14 days of involuntary detention for intensive treatment, or both, or until capacity has been restored according to standards developed, as specified, or by court determination, whichever is sooner. [WIC §5336]
COMMENTS:
- PURPOSE OF THIS BILL. According to the author it should always be our goal to get people with serious mental illnesses into voluntary treatment, however it is a sad reality that some severely mentally ill individuals lack the capacity to recognize their illness or to seek help for it. The author continues that in some of these cases, a person is so ill that they become a danger to themselves or others, or fall into the category of being gravely disabled. In these scenarios, it is sometimes necessary to involuntarily confine and treat a patient in order to stabilize them with the goal of restoring their capacity and helping them live a fuller life; something we all want for our fellow human beings. The author states that it is appropriately a high bar under existing law to place someone into an involuntary hold and in these situations we have a tremendous obligation to the person being held to ensure they receive the appropriate care. The author argues that unfortunately, under existing law, involuntary treatment during a hold can be discontinued when it is not clinically indicated to do so, simply because a person is in the process of transitioning from one hold stage to another. The author concludes that this bill allows the continuation of treatment and ensures a patient’s due process rights are protected.
- BACKGROUND.
- LPS Act involuntary detentions. The LPS Act provides for involuntary detentions for varying lengths of time for the purpose of evaluation and treatment, provided certain requirements are met, such as that an individual is taken to a county-designated facility. Typically, one first interacts with the LPS Act through a “5150” hold initiated by a peace officer or other person authorized by a county, who must determine and document that the individual meets the standard for a 5150 hold. A county-designated facility is authorized to then involuntarily detain an individual for up to 72 hours for evaluation and treatment if they are determined to be, as a result of a mental health disorder, a danger to self or others, or gravely disabled. The professional person in charge of the county-designated facility is required to assess an individual to determine the appropriateness of the involuntary detention prior to admitting the individual. Subject to various conditions, a person who is found to be a danger to self or others, or gravely disabled, can be subsequently involuntarily detained for an initial up-to 14 days for intensive treatment, an additional 14 days (or up to an additional 30 days in counties that have opted to provide this additional up-to 30 day intensive treatment episode), and ultimately a conservatorship, which is typically for up to a year and may be extended as appropriate.
Throughout this process, existing law requires specified entities to notify family members or others identified by the detained individual of various hearings, where it is determined whether a person will be further detained or released, unless the detained person requests that this information is not provided. Additionally, a person cannot be found to be gravely disabled if they can survive safely without involuntary detention with the help of responsible family, friends, or others who indicate they are both willing and able to help. A person can also be released prior to the end of intensive treatment if they are found to no longer meet the criteria or are prepared to accept treatment voluntarily.
- Riese hearings. The Department of Health Care Services (DHCS’s) website includes the handbook “Rights for Individuals in Mental Health Facilities,” which states that a capacity hearing, also called a Riese hearing, may be held to determine whether an individual can refuse treatment with medications. The capacity hearing is conducted by a hearing officer at the facility where the individual is receiving treatment or by a judge in court. The hearing officer will determine whether the individual has the capacity to consent to or refuse medication as a form of treatment. An individual’s representative helps them prepare for the hearing and will answer questions or discuss concerns that they may have about the hearing process. If an individual disagrees with the capacity hearing decision, they may appeal the decision to a superior court or to a court of appeal. Their patients’ rights advocate or attorney can assist them with filing an appeal.
The first of these hearings typically occur during the initial 72 hour hold. When a patient’s condition necessitates an additional hold beyond the initial 72 hour and 14 day periods, a certification review hearing is held to determine that the patient still meets the criteria to be held at the beginning of each proposed hold. In addition to a certification review hearing, a new Riese hearing may be held to determine the patient’s incapacity to refuse treatment prior to each new hold. The hearings impacted by this bill are those for an additional 14 day hold, initial up-to 30 day hold, and additional up-to 30 day hold.
Under current law, Riese hearings are required to be heard within 24 hours of the filing of the petition whenever possible. Twenty-four hour delays are permitted if parties need additional time to prepare or to accommodate county policies regarding the scheduling of hearings. However, current law states that hearings cannot be held beyond 72 hours of the filing of the petition.
- SUPPORT. The California State Association of Psychiatrists (CSAP) are sponsoring this bill, stating that it will modify Reise hearings such that the timeframe covered by judicial determination of incapacity to refuse treatment with antipsychotic medication applies to all periods of involuntary detention, not just the specific phase of involuntary detention under which the Riese was filed, thereby minimizing redundant additional Riese hearings and the dangers of clinically contraindicated interruption of medication treatment. CSAP argues that medications must be carefully titrated and monitored; stopping or interrupting such medication at arbitrary points during involuntary detention, based on local court rules, exposes patients to unjustified clinical risks and prolong the length of stay in inpatient settings. CSAP concludes that nothing in this bill would alter the current ability of individuals to petition for the discontinuation of treatment.
- OPPOSITION. Various patients and civil rights groups oppose this bill, including the ACLU, Cal Voices, and Disability Rights California (DRC). These organizations argue that this bill rolls back the fundamental patients’ rights endorsed by the state Supreme Court in Riese v. St. Mary’s Medical Center and Hospital, which requires a judicial determination of incapacity before involuntary medication can occur, in an effort to address an alleged systemic health care gap that has not been substantiated by data or research. Cal Voices argues that the provisions of this bill are not needed as existing law does not allow for gaps in involuntary hold orders, and any gap is caused by participants in the court system and not the existing law. DRC argues that this bill erodes the fundamental rights to bodily integrity and privacy, which is especially important given the extreme side effects from psychiatric medications. According to DRC one study found 15 to 30% of patients over the age of 45 developed Tardive Dyskinesia, a severe and permanent movement disorder, after one year of treatment from psychiatric medication. Newer antipsychotics are associated with metabolic syndrome, which is important as patients with serious mental illness have higher rates of obesity, diabetes, and cardiovascular disease, dying up to 10 years earlier than non-mentally ill patients from medical problems. The ACLU states that over 30 years ago the Legislature negotiated and researched for two years how to interpret the Riese holding into current law in a way that was workable for hospitals while also protecting civil rights to the greatest extent possible. The ACLU concludes that the harm this bill may create by loosening regulations around the practice of forcing medication on nonconsenting adults, without any research, data, or evaluation of impact, far outweighs any potential benefit.
- RELATED LEGISLATION.
- SB 1238 (Eggman) expands the definition of a “designated facility” and “facility designated by the county” under the LPS Act and authorizes DHCS to license and ensure reimbursement is provided for facilities that admit patients who are diagnosed only with a severe SUD. SB 1238 is currently pending in the Assembly Health Committee.
- SB 1317 (Wahab) extends the sunset date until January 1, 2030 on the provision of law authorizing involuntary medication of county jail inmates who are awaiting arraignment, trial or sentencing. SB 1317 is currently pending in the Assembly Public Safety Committee.
- PREVIOUS LEGISLATION.
- SB 43 (Eggman), Chapter 637, Statutes of 2023, among other things, expanded the definition of “gravely disabled,” for purposes of involuntarily detaining an individual under the LPS Act, to include an individual with a severe SUD, or a co-occurring mental health disorder and a severe SUD, or chronic alcoholism, who is unable to provide for food, clothing, shelter, personal safety or necessary medical care.
- SB 1227 (Eggman) Chapter 619, Statutes of 2022, modified the LPS Act to allow a second 30-day intensive treatment hold for a person who has been certified as “gravely disabled” on top of the existing 72 hour, 14 day, and 30 day treatment holds; the second 30-day treatment hold must be approved by a court pursuant to a petition filed by the professional in charge of the intensive treatment, as specified.
- DOUBLE REFERRAL. This bill is double referred, upon passage of this Committee it will be referred to the Assembly Judiciary Committee.
- POLICY CONCERNS. According to information submitted by the author’s office, idiosyncrasies of local court calendars and procedures can cause gaps between review certification hearings and Riese hearings. The author’s office and sponsors argue that when Riese hearings fall within one of these procedural gaps it leads to the interruption of treatment for patients who are often being treated with antipsychotic medications that must be carefully administered. The proponents further argue that stopping or interrupting such medication, based on a timing quirk created by local court rules, exposes patients to unjustified clinical risks.
No data has been provided to the Committee to demonstrate that these gaps in hearings are a systemic problem. Additionally, existing law requires capacity petitions be heard within 24 hours of the filing of the petition “whenever possible” and “in a manner compatible with, and the least disruptive of, the treatment being provided to the person.” This begs the question that if there are gaps between hearings, is this not a result of administrative failure on the part of the courts or providers who are filing petitions for the hearings? Is the most appropriate solution to this problem to extend the involuntary administration of antipsychotic medication until a hearing is held?
Opposition groups, most of who are lawyers and/or patients’ rights advocates that represent patients in Riese hearings, argue that the administrative burden of Riese hearings is low as counties are permitted to hold them informally in the hospital with a patient advocate and a hearing officer from the court presiding. DRC also shared the following anecdote: if a facility plans to place a patient on a new hold and continue involuntary medication, they will time the filing of the new hold with the capacity petition on a day when the capacity petition can be heard by the court. This practice eliminates any gap in involuntary medication treatment that might otherwise occur and is widely utilized throughout the state. To the extent local jurisdictions or individual facilities are struggling with treatment gaps, this is an issue of these entities not utilizing best practices and failing to comply with existing state law requirements.
Are there alternate policy solutions to ensure that petitions and hearings are filed and heard in timelines that comply with existing law? Judicial procedures are outside the scope of this Committee, but fall within that of the Assembly Judiciary Committee where this bill will be heard if it passes. Moving forward the author may wish to work with stakeholders and the Assembly Judiciary Committee to explore pathways that ensure timely hearings without relying on extending orders for involuntary treatment with antipsychotic medications. At a minimum, protections should be considered to limit extension periods and ensure a patient’s right to a timely Riese hearing is maintained.
REGISTERED SUPPORT / OPPOSITION:
Support
California State Association of Psychiatrists (sponsor)
Opposition
ACLU California Action
Cal Voices
California Association of Social Rehabilitation Agencies
Disability Rights California
Mental Health America of California
The Law Foundation of Silicon Valley
Analysis Prepared by: Riana King / HEALTH / (916) 319-2097
SENATE RULES COMMITTEE Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | SB 1184 |
THIRD READING
Bill No: SB 1184
Author: Eggman (D)
Amended: 4/22/24
Vote: 21
SENATE HEALTH COMMITTEE: 11-0, 3/20/24
AYES: Roth, Nguyen, Glazer, Gonzalez, Grove, Hurtado, Limón, Menjivar, Rubio, Smallwood-Cuevas, Wiener
SENATE JUDICIARY COMMITTEE: 11-0, 4/30/24
AYES: Umberg, Wilk, Allen, Blakespear, Caballero, Dodd, Durazo, Laird, Min, Niello, Wiener
SUBJECT: Mental health: involuntary treatment: antipsychotic medication
SOURCE: California State Association of Psychiatrists
DIGEST:
This bill requires an order for treatment with antipsychotic medication, as specified, to remain in effect at the beginning of a detention period for various involuntary holds provided that a petition for a new determination on the question of capacity has been filed, as specified. Requires this determination to remain in effect until the court hears a petition for that detention period and issues a decision, as specified.
ANALYSIS:
Existing law:
- Establishes the Lanterman-Petris-Short (LPS) Act to end the inappropriate, indefinite, and involuntary commitment of persons with mental health disorders, developmental disabilities, and chronic alcoholism, as well as to safeguard a person’s rights, provide prompt evaluation and treatment, and provide services in the least restrictive setting appropriate to the needs of each person. Permits involuntary detention of a person deemed to be a danger to self or others, or “gravely disabled,” as defined, for periods of up-to 72 hours for evaluation and treatment, or for up-to 14 days and up-to 30 days for additional intensive treatment in county-designated facilities. [WIC §5000, et seq.]
- Permits antipsychotic medication to be administered to any person subject to various involuntary detention lengths, as specified, if that person does not refuse that medication following disclosure of the right to refuse medication, as well as information required to be given to persons, as specified. [WIC §5332]
- Requires medication, if any person subject to various specified involuntary detention lengths and for whom antipsychotic medication has been prescribed orally refuses or gives other indication of refusal of treatment with that medication, to be administered only when treatment staff have considered and determined that treatment alternatives to involuntary medication are unlikely to meet the needs of the patient, and upon a determination of that person’s incapacity to refuse the treatment in a capacity hearing (known as a “Riese hearing”) held for that purpose. [WIC §5332]
- Requires persons subject to capacity hearings, as specified, to have a right to representation by an advocate or legal counsel. Requires capacity hearings to be heard within 24 hours of the filing of the petition whenever possible. [WIC §5333 and §5334]
- Requires any determination of a person’s incapacity to refuse treatment with antipsychotic medication to remain in effect only for the duration of the up-to 72 hours of detention for evaluation and treatment and the initial up-to 14 days of involuntary detention for intensive treatment, or both, or until capacity has been restored according to standards developed, as specified, or by court determination, whichever is sooner. [WIC §5336]
This bill:
- Requires an order for treatment with antipsychotic medication made pursuant to 2) of existing law above to remain in effect at the beginning of a detention period for the up-to 14-day detention period for suicidal persons; for an initial up-to 30-day detention period (following an up-to 14-day detention); and, for an additional up-to 30-day detention period (subsequent to an initial up-to 30 day detention), provided that a petition for a new determination on the question of the person’s capacity has been filed, as specified.
- Requires this determination to remain in effect until the court hears a petition for that detention period and issues a decision, as specified.
- Specifies that the provisions of this bill do not apply to a person whose capacity has been restored according to specified developed standards.
Comments
- Author’s statement. According to the author, while it should always be our goal to get people with serious mental illnesses into voluntary treatment, it is a sad reality that some severely mentally ill individuals lack the capacity to recognize their illness or to seek help for it. In some of these cases, a person is so ill that they become a danger to self or others, or become gravely disabled. In these scenarios, it is sometimes necessary to involuntarily detain and treat a patient in order to stabilize them with the goal of restoring their capacity and helping them live a fuller life; something we all want for our fellow human beings. It is, appropriately, a high bar under existing law to place someone on an involuntary hold, and in these situations, we have a tremendous obligation to the person being held to ensure they receive the appropriate care. Unfortunately, under existing law, involuntary treatment during a hold can be discontinued even if it is not clinically indicated to do so simply because a person is in the process of transitioning from one type hold to another. This bill preserves due process protections while ensuring that the person can continue to be treated until a determination has been made that their capacity has been restored.
- LPS Act involuntary detentions. The LPS Act provides for involuntary detentions for varying lengths of time for the purpose of evaluation and treatment, provided certain requirements are met, such as that an individual is taken to a county-designated facility. Typically, one first interacts with the LPS Act through a 5150 hold initiated by a peace officer or other person authorized by a county, who must determine and document that the individual meets the standard for a 5150 hold. A county-designated facility is authorized to then involuntarily detain an individual for up to 72 hours for evaluation and treatment if they are determined to be, as a result of a mental health disorder, a danger to self or others, or gravely disabled. The professional person in charge of the county-designated facility is required to assess an individual to determine the appropriateness of the involuntary detention prior to admitting the individual. Subject to various conditions, a person who is found to be a danger to self or others, or gravely disabled, can be subsequently involuntarily detained for an initial up-to 14 days for intensive treatment; an additional 14 days (or up to an additional 30 days in counties that have opted to provide this additional up-to 30-day intensive treatment episode); and ultimately a conservatorship, which is typically for up to a year and may be extended as appropriate. (According to DHCS’s website, the following counties offer additional up-to 30 days of intensive treatment: Butte, El Dorado, Fresno, Humboldt, Kern, Los Angeles, Mendocino, Merced, Monterey, Orange, Placer, Plumas, Riverside, Sacramento, San Benito, San Diego, San Joaquin, San Mateo, Santa Barbara, Shasta, Tulare, Yolo and Sutter/Yuba.) Throughout this process, existing law requires specified entities to notify family members or others identified by the detained individual of various hearings, where it is determined whether a person will be further detained or released, unless the detained person requests that this information is not provided. Additionally, a person cannot be found to be gravely disabled if they can survive safely without involuntary detention with the help of responsible family, friends, or others who indicate they are both willing and able to help. A person can also be released prior to the end of intensive treatment if they are found to no longer meet the criteria or are prepared to accept treatment voluntarily.
- Riese hearings. DHCS’s website includes the handbook “Rights for Individuals in Mental Health Facilities,” which states that a capacity hearing may be held to determine whether an individual can refuse treatment with medications. The capacity hearing is conducted by a hearing officer at the facility where the individual is receiving treatment or by a judge in court. The hearing officer will determine whether the individual has the capacity to consent to or refuse medication as a form of treatment. An individual’s representative helps them prepare for the hearing and will answer questions or discuss concerns that they may have about the hearing process. If an individual disagrees with the capacity hearing decision, they may appeal the decision to a superior court or to a court of appeal. Their patients’ rights advocate or attorney can assist them with filing an appeal.
According to information submitted by the author’s office, local superior court departments in many counties enforce local rules that limit the Riese power to the phase of the involuntary detention, requiring discontinuation of involuntary treatment and resubmittal of Riese petitions (and hearings) at the conclusion of a 14-day hold for patients who have their detention extended and continue to be detained under a 30-day hold, and again under a second 30-day hold. Continued detention is often a necessity to preclude discharge of an unstable gravely disabled individual from inpatient hospitalization during lengthy public guardian investigations prior to hearings for petition for temporary conservatorship. These local rules lead to a mandatory, but clinically contraindicated, discontinuation of medication treatment during detention while another Riese hearing is scheduled and a court decision is awaited. The local rule is reportedly based upon existing law that allows a court order for medication to remain in effect until the expiration of detention or the initial up-to14-day hold, but does not mention the up-to 30-day hold when a patient is in need of an extension of intensive treatment or the second up-to 30-day hold (in counties that use this option).
FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No
SUPPORT: (Verified 5/1/24)
California State Association of Psychiatrists (source)
Psychiatric Physicians Alliance of California
OPPOSITION: (Verified 5/1/24)
American Civil Liberties Union California Action
Cal Voices
Disability Rights California
The California Association of Mental Health Patients’ Rights Advocates
The Law Foundation of Silicon Valley
ARGUMENTS IN SUPPORT: The Psychiatric Physicians Alliance of California (PPAC) states that this bill amends current law, which codified the findings in Riese v. St Mary’s [259 Cal. Rptr. 669, 774 P.2d 698 (1989)], that held that patients may not be medicated over their objection with antipsychotics absent a court finding that they lack the capacity to refuse antipsychotic medications. PPAC states the court did not definitively address the question of duration of the court finding of incapacity, though by implication a person who has regained capacity after sufficient therapy with antipsychotic medication over objection should not be subject to involuntary medication. Conversely, the persistence of patient incapacity could also argue for the persistence of the authority to medicate over objection, even through multiple holds. PPAC and the California State Association of Psychiatrists argue that medications must be carefully titrated and monitored; stopping or interrupting such medication at arbitrary points during LPS detention, based on local court rules, exposes patients to unjustified clinical risks. This can also prolong the length of stay in inpatient settings. Nothing in this bill would alter the current ability of individuals to petition for the discontinuation of involuntary treatment.
ARGUMENTS IN OPPOSITION: Disability Rights California (DRC) states that this bill is a grave erosion of the rights to bodily autonomy and due process for individuals involuntarily detained. Multiple medication capacity hearings during the same detention are not redundant and are an important fixture of due process. DRC argues if a patient is still refusing psychiatric medication after receiving weeks of treatment, they likely have good reasons to refuse. For example, side effects from psychiatric medications can be extreme. One study found 15-30% of patients over the age of 45 developed Tardive Dyskinesia, a severe and permanent movement disorder after one year of treatment from psychiatric medication. DRC also disagrees that holding multiple Riese hearings is an administrative burden, and does not believe this rises to the level of necessitating elimination of important civil rights. These hearings are held in the facility, where psychiatrists are already working. There is no interruption in psychiatric treatment when Riese petitions are filed and heard timely. These petitions are usually prioritized by the LPS hearing officer to ensure they’re held as soon as possible.
Cal Voices and other opponents argue that this bill violates the LPS and Riese by purporting to allow psychiatrists to presume an involuntary patient lacks capacity in the event she is placed on a subsequent involuntary hold under 5260, 5270.15, and 5270.70, and because she is placed on such a hold. This violates Riese’s core holding: a psychiatrist may not presume a patient lacks capacity because she has been placed on an involuntary hold. Importantly, if a patient became a voluntary patient at the end of her 14-day hold and Riese order, the Riese order under this bill would terminate because voluntary patients cannot be subject to Riese petitions. So, it is clear that this bill is permitting a presumption that a patient remains lacking in decision-making capacity on the basis of being placed on a next involuntary hold. Again, that violates Riese regardless of whether there was a determination on a prior hold. This bill violates Riese in a number of other ways: it shifts the state’s burden to file a petition and first prove incapacity onto an involuntary patient via the bill’s “redetermination” process; it allows a doctor, and not a court, to make a determination the patient lacks decision-making capacity on 5260, 5270.15, and 5270.70 holds; and, it removes due process instead of making trial courts responsive to address logistical difficulties.
Prepared by: Reyes Diaz / HEALTH / (916) 651-4111
5/2/24 15:20:20
**** END ****
Senator Thomas Umberg, Chair
2023-2024 Regular Session
Bill No: SB 1184 (Author:Eggman)
Version: April 22, 2024
Hearing Date: April 30, 2024
Fiscal: No
Urgency: No
Consultant: AWM
SUBJECT
Mental health: involuntary treatment: antipsychotic medication
DIGEST
This bill establishes a procedure for a person involuntarily detained under the Lanterman-Petris-Short (LPS) Act to seek a redetermination of their capacity to refuse medication at the commencement of a subsequent hold period.
EXECUTIVE SUMMARY
The LPS Act authorizes a series of involuntary detentions, which may culminate in the establishment of a year-long conservatorship, for a person who is found to be “gravely disabled” as a result of a mental health disorder, a severe substance use disorder, or a co-occurring mental health disorder and severe substance use disorder. While the “gravely disabled” standard is a high bar for involuntarily detaining a person for treatment, a person who meets the “gravely disabled” standard does not automatically lose their right to refuse consent to medical treatment, including antipsychotic medication. Before a person detained under the LPS Act may be involuntarily medicated with antipsychotic medication, a court must conduct an evidentiary hearing and find, by clear and convincing evidence, that the person lacks capacity to give or withhold consent. These hearings are known as “Riese hearings,” after the Court of Appeal case establishing the procedure.
As noted by the author and sponsor, the statutes addressing capacity determinations and Riese hearings have not been kept current with the Legislature’s addition of subsequent involuntary treatment periods. As a result, the statutes do not clearly establish when and how a finding of incapacity in one hold period carries over to a subsequent hold. According to the author and sponsors, the need for a new Riese hearing at the start of each new hold period leads to gaps in treatment with antipsychotic medication, which can be harmful to the patient’s recovery. Other stakeholders argue that these gaps in treatment are easily avoided with adequate planning and case management. The opponents argue that allowing a single capacity determination to run for the duration of all of a patient’s holds is contrary to the Constitutional mandate of bodily autonomy.
This bill is intended to avoid counterindicated pauses in treatment while still protecting an individual’s due process rights. As currently drafted, the bill allows a finding of incapacity to run for the duration of a person’s involuntary detention, even through subsequent holds. The bill also allows an involuntarily detained person to seek a redetermination of the initial capacity determination, effectively shifting the burden from the facility to the individual to file a petition. After discussions with stakeholders and Committee staff, the author has agreed to amend the bill to reinstate current law requiring a new hearing at the start of each new hold period and placing the burden on the facility to file a petition at the start of each new hearing; the amendments will also allow a finding of incapacity from a prior detention period to run into a subsequent hold period if and only if a facility has filed a new petition for a capacity determination, and only until the time it takes the finder of fact to issue a new capacity determination. The subsequent petition is subject to existing requirements relating to when a petition must be set for hearing and heard, so the extension should generally last no more than 24 hours; in no cases can the petition be heard beyond 72 hours from when the petition was filed.
This bill is sponsored by the California State Association of Psychiatrists and is supported by the Psychiatric Physicians Alliance of California. This bill is opposed by ACLU California Action, Cal Voices, CAMHPRA, Disability Rights California, and The Law Foundation of Silicon Valley. The Senate Health Committee passed this bill with a vote of 11-0.
PROPOSED CHANGES TO THE LAW
Existing law:
- Establishes the LPS Act, which provides for the involuntary detention for treatment and evaluation of people who are gravely disabled or a danger to self or others. (Welf. & Inst. Code, div. 5, pt. 1, §§ 5000 et seq.)
- Defines “grave disability” as any of the following:
- A condition in which a person, as a result of a mental health disorder, a severe substance use disorder, or a co-occurring mental health disorder and a severe substance use disorder, is unable to provide for their basic personal needs for food, clothing, shelter, personal safety, or necessary medical care;[1]
- A person who has been found incompetent to stand trial pursuant to the Penal Code, as specified; and
- For purposes of certain types of detention and the establishment of a conservatorship, a condition in which a person, as a result of impairment by chronic alcoholism, is unable to provide for their basic personal needs for food, clothing, shelter, personal safety, or necessary medical care. (Welf. & Inst. Code, § 5008(h)(1).)
- Establishes a series of escalating detentions for involuntary treatment of a person who meets the criteria above, which may culminate in a renewable 1-year conservatorship for a person determined to be gravely disabled. Specifically:
- If a person is gravely disabled as a result of mental illness, or a danger to self or others, then a peace officer, staff of a designated treatment facility or crisis team, or other professional person designated by the county, may, upon probable cause, take that person into custody for a period of up to 72 hours for assessment, evaluation, crisis intervention, or placement in a designated treatment facility (known as a “5150 hold”). (Welf. & Inst. Code, § 5150.)
- A person who has been detained for 72 hours may be further detained for up to 14 days of intensive treatment if the person continues to pose a danger to self or others, or to be gravely disabled, and the person has been unwilling or unable to accept voluntary treatment. (Welf. & Inst. Code, § 5250.)
- After the 14 days, a person may be detained for an additional 14 days if the person threatened to take their own life and continues to present an imminent threat of taking their own life, as specified; or for 30 days of intensive treatment if the person remains gravely disabled and is unwilling or unable to voluntarily accept treatment. (Welf. & Inst. Code, §§ 5260, 5270.15.)
- Requires the 14- and 30-day intensive treatment detentions to be certified after a hearing to determine whether probable cause exists for the continued detention, conducted by a court-appointed commissioner or referee, or a certification review hearing officer who must be either a state-qualified administrative law hearing officer or a medical professional as specified. (Welf. & Inst. Code, §§ 5254, 5254.1, 5256, 5256.1, 5256.2, 5256.4, 5256.5, 5270.15.)
- Provides that, if after 15 days of the 30-day hold for intensive treatment, it appears that the person remains gravely disabled and unwilling or unable to accept treatment voluntarily, the professional person in charge of the facility may file a petition in the superior court for the county in which the facility providing intensive treatment is located, seeking approval for up to an additional 30 days of intensive treatment.
- Upon the filing of a petition, the court shall appoint counsel for the detained person if they do not already have counsel.
- The court shall deny the petition or order an evidentiary hearing be held within two days.
- The court may order up to 30 days of intensive treatment upon making certain findings, including that the facility providing intensive treatment is equipped and staffed to provide the required treatment and the person is likely to benefit from continued treatment. (Welf. & Inst. Code, § 5270.70.)
- Provides that a person in charge of a facility providing a 5150 hold or 14- or 30-day involuntary detention for intensive treatment may recommend an LPS conservatorship for the person treated, when the person being treated is unwilling or unable to accept voluntary treatment; if the county conservatorship investigator agrees, the county must petition the superior court to establish an LPS conservatorship. If the finder of fact finds, beyond a reasonable doubt, that the person is gravely disabled, a conservatorship of up to one year, with the possibility of a renewal as provided, shall be established. (Welf. & Inst. Code, §§ 5350 et seq.)
- Provides that a legally competent adult has the right to refuse medical treatment. (Cruzan v. Director, Missouri Dept. of Health (1990) 497 U.S. 261; Bartling v. Superior Court (1984) 163 Cal.App.3d 186, 193-194.)
- Provides that no person may be presumed to be incompetent on the basis of receiving involuntary treatment under the LPS Act. (Welf. & Inst. Code, § 5331.)
- Provides that a person confined under the LPS Act shall not be deemed incapable of refusing treatment solely by virtue of being diagnosed as having a mental health disorder. (Welf. & Inst. Code, § 5326.5.)
- Defines “antipsychotic medication” as any medication customarily prescribed for the treatment of symptoms of psychoses and other severe mental and emotional disorders. (Welf. & Inst. Code, § 5008(l).)
- Provides that a person involuntarily detained under the LPS Act may not be administered antipsychotic medication involuntarily in non-emergency situations unless a court has determined that the person is incompetent to give consent. (Riese v. St. Mary’s Hospital & Medical Center (1987) 209 Cal.App.3d 1303, 1320.)
- Provides that antipsychotic medication may not be administered to any person detained under a 5150 hold, 14-day hold, or 30-day hold unless one of the following occurs:
- The person does not refuse the medication, following disclosure of the right to refuse and the provision of specified information.
- The person refuses the medication; treatment staff have considered and determined that treatment alternatives to involuntary medication are unlikely to meet the needs of the patient; and the person is determined to lack capacity to refuse treatment, pursuant to 9).
- In the case of an emergency, as defined, the person may be treated over their objection prior to a hearing, provided that the antipsychotic medication treats only the emergency condition. (Welf. & Inst. Code, § 5332.)
- Provides the following requirements for a hearing to determine whether an involuntarily detained person has the capacity to refuse antipsychotic medication:
- The person subject to the hearing has the right to representation by an advocate or legal counsel.
- The petition for the capacity hearing must be filed with the superior court and delivered to the person who is the subject of the hearing, along with notice that the person has the right to the assistance of the patients’ rights advocate or an attorney to prepare for the hearing.
- As soon after the filing of the petition for a capacity hearing is practicable, an attorney or patients’ rights advocate shall meet with the person to discuss the capacity hearing process and assist in preparation for the hearing.
- A capacity hearing shall be heard within 24 hours of the filing of the petition whenever possible, with the possibility of a 24-hour extension if either party needs time to prepare, and another 24-hour extension in the case of a hardship. In no event shall a hearing be held more than 72 hours after the petition is filed.
- Capacity hearings shall be held in an appropriate location at the facility where the person is receiving treatment and conducted by a superior court judge, court-appointed commissioner or referee, or court-appointed hearing officer who must be provided with training in the issues specific to capacity hearings.
- The person who is the subject of the hearing must be given an oral notification of the determination of the hearing at the conclusion of the hearing, and they may appeal the determination to the superior court or to the court of appeal, or seek a writ of habeas corpus, as provided; however, treatment may be initiated pending the appeal. (Welf. & Inst. Code, §§ 5333 & 5334.)
- Provides that, in a court proceeding on whether the person lacks capacity under 13), the person’s incapacity must be established by clear and convincing evidence. (Riese, supra, 209 Cal.App.3d at p. 1322.)
- Provides that a determination of a person’s incapacity to refuse treatment with antipsychotic medication made pursuant to 9) shall remain in effect only for the duration of a 5150 hold or the initial 14-day hold, or both, until capacity has been restored or by court determination, whichever is sooner. (Welf. & Inst. Code, § 5336.)
This bill:
- Clarifies that any person who is subject to a detention pursuant to an initial or subsequent 30-day hold has the right to refuse treatment with antipsychotic medication subject to the existing procedures in the LPS Act, including treatment over the person’s objection in case of an emergency, and pursuant to the changes made in this bill.
- Permits a person who was found to lack capacity at a capacity hearing to file a petition to request a redetermination on the question of capacity at the commencement of any subsequent detention period (i.e., a 14-day hold for a person who presents an imminent threat of taking their own life or the initial or subsequent 30-day hold).
- Requires the facility where a person is receiving treatment to inform the person and their advocate of their right to request a redetermination on the question of incapacity under 2).
- Provides that a capacity redetermination hearing shall be conducted in the same manner as capacity hearings, as provided.
- Provides that a party to a redetermination hearing may raise new information or evidence not raised in the original capacity hearing or a prior redetermination hearing.
- Provides that the question of capacity shall be reviewed de novo and under the same burden of proof applied in the initial capacity hearing.
- Permits a person who is the subject of a capacity redetermination hearing to appeal the determination to the superior court or court of appeal.
- Provides that treatment may continue pending a redetermination of incapacity.
- Modifies the statute setting forth the duration of a determination of a person’s incapacity, to state that a determination shall remain in effect only for the duration of the detention period described in Welfare and Institutions Code section 5150, 5250, 5260, 5270.15, or 5270.70 until capacity has been restored according to standards developed under the LPS Act, or by a court determination, whichever is sooner.
COMMENTS
- Author’s comment
According to the author:
While it should always be our goal to get people with serious mental illnesses into voluntary treatment, it is a sad reality that some severely mentally ill individuals lack the capacity to recognize their illness or to seek help for it. In some of these cases, a person is so ill that they become a danger to themselves or others, or fall into the category of being gravely disabled. In these scenarios, it is sometimes necessary to involuntarily confine and treat a patient in order to stabilize them with the goal of restoring their capacity and helping them live a fuller life; something we all want for our fellow human beings. It is, appropriately, a high bar under existing law to place someone into an involuntary hold and in these situations we have a tremendous obligation to the person being held to ensure they receive the appropriate care. Unfortunately, under existing law, involuntary treatment during a hold can be discontinued when it is not clinically indicated to do so, simply because a person is in the process of transitioning from one hold stage to another. This bill preserves due process protections while ensuring that the person can continue to be treated until a determination has been made that their capacity has been restored.
2. Background on the LPS Act
The LPS Act authorizes a series of involuntary detentions, which may culminate in the establishment of a year-long conservatorship, for a person who is found to be “gravely disabled.” [2] Until this year, the definition of “gravely disabled” was limited to persons who were unable to provide for their basic personal needs for food, clothing, and shelter as a result of a mental health or, in the case of holds other than a 5150 hold, as a result of impairment by chronic alcoholism.[3]
In 2023, however, the Legislature passed, and the Governor signed, SB 43 (Eggman, Ch. 637, Stats. 2023), which expanded the definition of “gravely disabled” in two main ways. First, SB 43 added severe substance abuse disorders, or co-occurring mental health and severe substance use disorders, to the list of conditions a person could be suffering and be gravely disabled. Second, SB 43 expanded the list of limitations the mental health, substance abuse, or co-occurring mental health and substance abuse disorder, or chronic alcoholism, could cause to render a person gravely disabled, to include the person’s basic personal needs for personal safety or medical care. SB 43 took effect on January 1, 2024, but gave counties the option to delay implementation of the new definition until January 1, 2026.[4]
While the LPS Act sets a high bar for involuntarily detaining a person for treatment, a person who meets the “gravely disabled” standard does not automatically lose their right to refuse consent to medical treatment, including antipsychotic medication.[5] Generally speaking, adults have a constitutionally protected right to bodily autonomy, including the right to refuse medical treatment.[6] This right to refuse consent is especially acute with respect to antipsychotic medication because “[t]reatment with antipsychotic drugs not only affects the patient’s bodily integrity but the patient’s mind, ‘the quintessential zone of privacy.’ ”[7] Determining whether a person retains capacity to consent or refuse medication “is uniquely a judicial, not a medical function.”[8] Accordingly, before a person detained under the LPS Act may be involuntarily medicated with antipsychotic medication, a court must conduct an evidentiary hearing and find, by clear and convincing evidence, that the person lacks capacity to give or withhold consent.[9] These hearings are known as “Riese hearings,” after the Court of Appeal case establishing the procedure.
3. Riese hearings
As explained by the Senate Health Committee’s analysis of this bill, a Riese hearing:
…is conducted by a hearing officer at the facility where the individual is receiving treatment or by a judge in court. The hearing officer will determine whether the individual has the capacity to consent to or refuse medication as a form of treatment. An individual’s representative helps them prepare for the hearing and will answer questions or discuss concerns that they may have about the hearing process. If an individual disagrees with the capacity hearing decision, they may appeal the decision to a superior court or to a court of appeal. Their patients’ rights advocate or attorney can assist them with filing an appeal.
The determination of whether the person lacks capacity should focus primarily on three factors:
- “[W]hether the patient is aware of [their] situation (e.g., if the court is satisfied of the existence of psychosis, does the individual acknowledge the condition).”[10]
- “[W]hether the patient is able to understand the benefits and the risks of, as well as the alternatives to, the proposed intervention,” including the possible side effects of medication and the possibility that alternatives will be less effective.[11]
- “[W]hether the patient is able to understand and knowingly and intelligently evaluate the information required to be given patients whose informed consent is sought [citation] and otherwise participate in the treatment decision by means of rational thought process.”[12] Absent “a clear link between the individual’s delusional or hallucinatory perceptions and [their] ultimate decision, it should be assumed that [they are] using rational modes of thought.”[13]
If the court finds that the patient has capacity to give informed consent to antipsychotic medication and refuses to do so, the patient may not be medicated against their will.[14] If, however, the court determines that the patient is incapable of giving informed consent, the treating facility may administer antipsychotic medication to the patient.[15]
Under current law, a court’s determination that an individual lacks capacity at a Riese hearing remains in effect only for the duration of a 5150 or initial 14-day hold, or until capacity is restored.[16] The law does not specifically address involuntary treatment with antipsychotic medication during one or both of the 30-day holds, or the 14-day intensive treatment for suicidal persons. The sponsor notes that some courts’ local rules require a renewed Riese hearing for each new phase of involuntary treatment, i.e., a Riese hearing at the 14-day, 30-day, and second 30-day stages. This is an odd way to put it. The statute codifying the provision allowing a single finding of incapacity for the 5150 and 14-day hold was enacted after the implementation of the initial 30-day hold, indicating that the Legislature deliberately elected not to extent a single finding of incapacity past the initial 14-day hold.[17] As such, the requirement of a new capacity petition at the start of each subsequent detention period is a legal requirement, not a matter left to the discretion of individual courts.
The author and supporters of the bill also report that, due to some courts’ schedules, patients are going off of medication during the days between the start of the new hold period and when the court can schedule a Riese hearing. These gaps in treatment are, according to the author and supporters, clinically counterindicated and can expose patients to clinical risks and increase the length of stay in inpatient settings. Other stakeholders report that, in many jurisdictions, there is no treatment gap because the courts and stakeholders have worked together to provide hearings as needed, including same-day hearings. Opponents of the bill argue that this bill is unnecessary because, with better planning and clearer mandates to the courts, all petitions could be heard without delay, as contemplated by existing statutes.
4. This bill is intended to avoid circumstances in which a person who is being treated with antipsychotic medication pursuant to a court order has to go off and on medication while a new determination of capacity is pending.
In order to address the asserted treatment gap, this bill, as currently in print, eliminates the requirement that a facility seek a new determination of incapacity at the start of each new hold and instead establishes a procedure by which a person who was determined to lack capacity may seek a redetermination at the commencement of a subsequent hold. Consistent with the change set forth above, the facility may continue treating a patient with antipsychotic medication pursuant to a prior finding of incapacity while the redetermination petition is pending; if the court finds that the patient has regained capacity, all involuntary treatment must cease.
The redetermination procedure established by this bill is nearly identical to the initial capacity determination, except the redetermination must be sought by the patient. The bill requires the treatment facility, at the start of any subsequent hold, to inform the patient of their right to seek a redetermination of capacity. If the patient decides to seek a redetermination, they may file a petition for redetermination in the same manner as a facility files a petition for a capacity determination. The proceeding will be conducted the same—the facility still retains the burden of proof and must establish lack of capacity by clear and convincing evidence—and the question of capacity must be considered de novo, meaning no deference is given to the prior capacity determination. Either party may introduce new information or evidence that was not introduced in the original capacity hearing or a prior capacity redetermination. A patient who is the subject of a capacity redetermination may appeal the finding to the superior court or the court of appeal; this is consistent with the right of appeal in original capacity hearings. Additionally, the LPS Act provides a patient with the right to file a petition for habeas corpus if they believe they are being improperly detained.[18]
After discussions with the author and stakeholders, it became clear that placing the burden on the involuntarily detained person to file a petition for a redetermination of capacity is not practical and likely does not adequately protect their constitutional rights.[19] Stakeholders also argue that placing the burden on the involuntarily medicated person—who may be unable to function due to being heavily medicated—to seek a redetermination could violate the Americans with Disabilities Act (ADA) and pile even more work on already-overburdened public defenders and advocates.
In light of these concerns, the author has agreed to delete the provisions allowing a single capacity determination to last for the duration of all a person’s detention periods and establishing the redetermination procedure. Instead, the bill will permit a finding of incapacity and order for antipsychotic medication from a prior hold to remain into effect into a subsequent hold on a short-term basis in cases where a new capacity determination is pending. The amendments make clear that the order will remain in effect in a subsequent detention period only if the facility has filed a new petition for a finding of capacity at the start of the new detention period; if the facility has not taken steps to seek a new capacity finding, the order from the prior detention period ceases to have any legal effect. This provision makes clear that a facility cannot rely on a single order for multiple periods—the extension is available only as a stopgap measure for facilities that are actively seeking a new order. The amendments also make clear that this extension is time-limited: the order from the prior detention period remains in effect only until the new order is issued, pursuant to existing statutory time limits. These existing limits are strict: a petition generally should be heard within 24 hours of filing, and in no event can the hearing be held beyond 72 hours of the filing of the petition.[20] Accordingly, the extension authorized under the bill, as amended, should generally run for no more than 24 hours, and up to 72 hours at the outside.
These amendments return the burden of petitioning for a capacity order to the facility, and come close to the status quo ante of limiting a capacity order to only the hold period in which it was granted. Some stakeholders argue that the justification for this bill—that capacity hearings cannot be scheduled in a way that avoids treatment gaps—does not justify curtailing patients’ due process rights, even for a limited period; they argue that due process requires the state to bear the administrative burden of providing timely hearings, and that it is inconsistent with due process to shift that burden onto the patient and make them wait. Going forward, the author may wish to consult with stakeholders to determine if hearings can be held more frequently in lieu of extending orders.
5. Amendments
As noted above, the author has agreed to amend this bill to address due process concerns. The amendments are set forth below, with deletions in strikethrough and additions in bold/underline, subject to any nonsubstantive changes the Office of Legislative Counsel may make.
Amendment 1
At pages 4, delete lines 39-40 and at page 5, delete lines 1-21 (the entire subdivision (g) of Section 5334).
Amendment 2
At page 5, modify Section 5336 as follows:
5336 (a). Any determination of a person’s incapacity to refuse treatment with antipsychotic medication made pursuant to Section 5334 shall remain in effect only for the duration of the detention period described in Section 5150 or 5250, or both, or 5250, 5260, 5270.15, or 5270.70 until capacity has been restored according to standards developed pursuant to subdivision (c) of Section 5332, or by court determination, whichever is sooner.
(b) (1) An order for treatment with antipsychotic medication made pursuant to Section 5332 shall remain in effect at the beginning of a detention period described in Section 5260, 5270.15, or 5270.70, provided that a petition for a new determination on the question of capacity has been filed pursuant to Section 5334.
(2) An order for treatment with antipsychotic medication from a prior detention period pursuant to paragraph (1) shall remain in effect until the court hears a petition for the current detention period and issues a decision as set forth in Section 5334.
(3) Subdivision (b) does not apply to a person whose capacity has been restored according to standard developed pursuant to subdivision (c) of Section 5332.
6. Arguments in support
According to the California State Association of Psychiatrists:
Superior Courts in many Counties enforce “local rules” that limit the Riese [ruling] to the phase of the involuntary detention, requiring discontinuation of involuntary treatment, and redundant submittal of Riese petition (and hearings) at the conclusion of a 14-day hold for patients that continue to be detained under WIC 5270.15 (30-day hold), and under 5270.55 (second 30-day hold). These local rules may also apply to other involuntary detentions (second 14-day, 180-day, temporary conservatorships).
Medications must be carefully titrated and monitored; stopping or interrupting such medication at arbitrary points during Lanterman-Petris-Short (LPS) detention, based on local court rules, exposes patients to unjustified clinical risks. This can also prolong the length of stay in inpatient settings. Nothing in SB 1184 would alter the current ability of individuals to petition for the discontinuation of treatment.
7. Arguments in opposition
According to Disability Rights California:
SB 1184 shifts the burden for filing a petition for capacity redetermination to the patient. Under current law, psychiatrists are required to file a petition to continue administration of involuntary medication. Shifting this administrative burden is inappropriate and compromises due process because the patient is under significant duress subject to involuntary detention and medication.
Current law requires certification review hearings be affirmatively conducted for any individual placed on a Section 5250 or 5270.15 hold, regardless of whether they request one. This provides an important due process check for individuals subject to significant deprivations of civil liberty. SB 1184 would de-couple civil commitment and involuntary medication due process requirements, raising concerns…
The author states the bill is needed because current legal requirements may result in treatment gaps. Existing law requires capacity petitions “be heard within 24 hours of the filing of the petition whenever possible” and “be held in a manner compatible with, and the least disruptive of, the treatment being provided to the person.” We believe state law already addresses the issue the author is trying to solve, and any trouble is with local implementation. For example, if a facility plans to place a patient on a new hold and continue involuntary medication, they will time the filing of the new hold with the capacity petition on a day when the capacity petition can be heard by the court. This practice eliminates any gap in involuntary medication treatment that might otherwise occur and is widely utilized throughout the state. To the extent local jurisdictions or individual facilities are struggling with “treatment gaps,” this is an issue of these entities not following best practices and failing to comply with existing state law requirements.
SUPPORT
California State Alliance of Psychiatrists (sponsor)
Psychiatric Physicians Alliance of California
OPPOSITION
ACLU California Action
Cal Voices
CAMHPRA
Disability Rights California
The Law Foundation of Silicon Valley
RELATED LEGISLATION
Pending Legislation:
SB 1317 (Wahab, 2024) eliminates the sunset on provisions that protect inmates in a county jail from being administered any psychiatric medication without prior informed consent, as specified and that impose additional criteria that must be satisfied before a county department of mental health or other designated department may administer involuntary medication. SB 1317 is pending before the Senate Appropriations Committee.
SB 1238 (Eggman, 2024) expands the definition of a “designated facility” and “facility designated by the county” under the LPS Act and authorizes the State Department of Health Care Services to license and ensure reimbursement is provided for facilities that admit patients who are diagnosed only with a severe substance use disorder. SB 1238 is pending before the Senate Appropriations Committee.
Prior Legislation:
SB 43 (Eggman, Ch. 637, Stats. 2023) among other things, expanded the definition of “gravely disabled,” for purposes of involuntarily detaining an individual under the LPS Act, to include an individual with a severe substance use disorder (SUD), or a co-occurring mental health disorder and a severe SUD, or chronic alcoholism, who is unable to provide for food, clothing, shelter, personal safety or necessary medical care.
SB 1227 (Eggman, Ch. 619, Stats. 2022) modified the LPS Act to allow a second 30-day intensive treatment hold for a person who has been certified as “gravely disabled” on top of the existing 3-day, 14-day, and 30-day treatment holds; the second 30-day treatment hold must be approved by a court pursuant to a petition filed by the professional in charge of the intensive treatment, as specified.
PRIOR VOTES:
Senate Health Committee (Ayes 11, Noes 0)
**************
A county, by adoption of a resolution of its governing body, may elect to defer adoption of this particular definition until January 1, 2026, and instead use the prior definition that defines “grave disability” as a condition in which a person, as a result of a mental disorder, or impairment by chronic alcoholism, is unable to provide for the person’s basic personal needs for food, clothing, or shelter. (Welf. & Inst. Code, § 5008(h)(4).) ↑
Welf. & Inst. Code, § 5008(h). The LPS Act also authorizes detention and involuntary treatment for persons who, as a result of a mental health disorder, are a danger to themselves or others (Welf. & Inst. Code, §§ 5150, 5250); this category is not pertinent to this analysis. ↑
Former Welf. & Inst. Code, § 5008(h). ↑
See Welf. & Inst. Code, § 5008(h)(4). ↑
Riese, supra, 209 Cal.App.3d at p. 1318. ↑
Id. at p. 1317; Cruzan v. Director, Missouri Dept. of Health (1990) 497 U.S. 261; Bartling v. Superior Court (1984) 163 Cal.App.3d 186, 193-194; see Cal. Const., art. I, § 1. ↑
Riese, supra, 209 Cal.App.3d at p. 1318. ↑
Id. at p. 1321. (internal quotation marks omitted). ↑
Id. at p. 1322. ↑
Ibid. ↑
Id. at pp. 1322-1323. ↑
Id. at p. 1323. ↑
Ibid. (internal quotation marks omitted). ↑
Ibid. ↑
Ibid. ↑
Welf. & Inst. Code, § 5336. ↑
See SB 2678 (Allen, Ch. 1517, Stats. 1988) (adopting initial 30-day hold period); SB 665 (Petris, Ch. 681, Stats. 1991) (codifying the right to refuse antipsychotic medication absent a finding of incapacity and providing that an incapacity order extends only through the 5150 and initial 14-day hold). ↑
Id., § 5275. ↑
Riese, supra, 209 Cal.App.3d at p. 1318. ↑
Welf. & Inst. Code, § 5334(a). ↑
SENATE COMMITTEE ON HEALTH
Senator Richard Roth, Chair
BILL NO: SB 1184
AUTHOR: | Eggman | ||
VERSION: | February 14, 2024 | ||
HEARING DATE: | March 20, 2024 | ||
CONSULTANT: | Reyes Diaz | ||
SUBJECT: Mental health: involuntary treatment: antipsychotic medication
SUMMARY:
Extends a determination of a person’s incapacity to refuse treatment with antipsychotic medication for the duration of two additional types of involuntary holds, in addition to the holds authorized under existing law.
Existing law:
- Establishes the Lanterman-Petris-Short (LPS) Act to end the inappropriate, indefinite, and involuntary commitment of persons with MH disorders, developmental disabilities, and chronic alcoholism, as well as to safeguard a person’s rights, provide prompt evaluation and treatment, and provide services in the least restrictive setting appropriate to the needs of each person. Permits involuntary detention of a person deemed to be a danger to self or others, or “gravely disabled,” as defined, for periods of up-to 72 hours for evaluation and treatment, or for up-to 14 days and up-to 30 days for additional intensive treatment in county-designated facilities. [WIC §5000, et seq.]
- Permits antipsychotic medication to be administered to any person subject to various involuntary detention lengths, as specified, if that person does not refuse that medication following disclosure of the right to refuse medication, as well as information required to be given to persons, as specified. [WIC §5332]
- Requires medication, if any person subject to various specified involuntary detention lengths and for whom antipsychotic medication has been prescribed orally refuses or gives other indication of refusal of treatment with that medication, to be administered only when treatment staff have considered and determined that treatment alternatives to involuntary medication are unlikely to meet the needs of the patient, and upon a determination of that person’s incapacity to refuse the treatment in a capacity hearing (known as a “Riese hearing”) held for that purpose. [WIC §5332]
- Requires persons subject to capacity hearings, as specified, to have a right to representation by an advocate or legal counsel. Requires capacity hearings to be heard within 24 hours of the filing of the petition whenever possible. [WIC §5333 and §5334]
- Requires any determination of a person’s incapacity to refuse treatment with antipsychotic medication to remain in effect only for the duration of the up-to 72 hours of detention for evaluation and treatment and the initial up-to 14 days of involuntary detention for intensive treatment, or both, or until capacity has been restored according to standards developed, as specified, or by court determination, whichever is sooner. [WIC §5336]
This bill: Extends a determination of a person’s incapacity to refuse treatment with antipsychotic medication for the duration of an additional up-to 14-day hold for intensive treatment for suicidal persons and for an up-to 30-day hold for persons who continue to need intensive treatment after an initial up-to 14 days, in addition to the involuntary holds in 5) above of existing law.
FISCAL EFFECT:
This bill has not been analyzed by a fiscal committee.
COMMENTS:
- Author’s statement. According to the author, while it should always be our goal to get people with serious mental illnesses into voluntary treatment, it is a sad reality that some severely mentally ill individuals lack the capacity to recognize their illness or to seek help for it. In some of these cases, a person is so ill that they become a danger to self or others, or become gravely disabled. In these scenarios, it is sometimes necessary to involuntarily detain and treat a patient in order to stabilize them with the goal of restoring their capacity and helping them live a fuller life; something we all want for our fellow human beings. It is, appropriately, a high bar under existing law to place someone on an involuntary hold, and in these situations, we have a tremendous obligation to the person being held to ensure they receive the appropriate care. Unfortunately, under existing law, involuntary treatment during a hold can be discontinued even if it is not clinically indicated to do so simply because a person is in the process of transitioning from one type hold to another. This bill preserves due process protections while ensuring that the person can continue to be treated until a determination has been made that their capacity has been restored.
- LPS Act involuntary detentions. The LPS Act provides for involuntary detentions for varying lengths of time for the purpose of evaluation and treatment, provided certain requirements are met, such as that an individual is taken to a county-designated facility. Typically, one first interacts with the LPS Act through a 5150 hold initiated by a peace officer or other person authorized by a county, who must determine and document that the individual meets the standard for a 5150 hold. A county-designated facility is authorized to then involuntarily detain an individual for up to 72 hours for evaluation and treatment if they are determined to be, as a result of a mental health disorder, a danger to self or others, or gravely disabled. The professional person in charge of the county-designated facility is required to assess an individual to determine the appropriateness of the involuntary detention prior to admitting the individual. Subject to various conditions, a person who is found to be a danger to self or others, or gravely disabled, can be subsequently involuntarily detained for an initial up-to 14 days for intensive treatment; an additional 14 days (or up to an additional 30 days in counties that have opted to provide this additional up-to 30-day intensive treatment episode); and ultimately a conservatorship, which is typically for up to a year and may be extended as appropriate. (According to DHCS’s website, the following counties offer additional up-to 30 days of intensive treatment: Butte, El Dorado, Fresno, Humboldt, Kern, Los Angeles, Mendocino, Merced, Monterey, Orange, Placer, Plumas, Riverside, Sacramento, San Benito, San Diego, San Joaquin, San Mateo, Santa Barbara, Shasta, Tulare, Yolo and Sutter/Yuba.) Throughout this process, existing law requires specified entities to notify family members or others identified by the detained individual of various hearings, where it is determined whether a person will be further detained or released, unless the detained person requests that this information is not provided. Additionally, a person cannot be found to be gravely disabled if they can survive safely without involuntary detention with the help of responsible family, friends, or others who indicate they are both willing and able to help. A person can also be released prior to the end of intensive treatment if they are found to no longer meet the criteria or are prepared to accept treatment voluntarily.
- Riese hearings. DHCS’s website includes the handbook “Rights for Individuals in Mental Health Facilities,” which states that a capacity hearing may be held to determine whether an individual can refuse treatment with medications. The capacity hearing is conducted by a hearing officer at the facility where the individual is receiving treatment or by a judge in court. The hearing officer will determine whether the individual has the capacity to consent to or refuse medication as a form of treatment. An individual’s representative helps them prepare for the hearing and will answer questions or discuss concerns that they may have about the hearing process. If an individual disagrees with the capacity hearing decision, they may appeal the decision to a superior court or to a court of appeal. Their patients’ rights advocate or attorney can assist them with filing an appeal.
According to information submitted by the author’s office, local superior court departments in many counties enforce local rules that limit the Riese power to the phase of the involuntary detention, requiring discontinuation of involuntary treatment and resubmittal of Riese petitions (and hearings) at the conclusion of a 14-day hold for patients who have their detention extended and continue to be detained under a 30-day hold, and again under a second 30-day hold. Continued detention is often a necessity to preclude discharge of an unstable gravely disabled individual from inpatient hospitalization during lengthy public guardian investigations prior to hearings for petition for temporary conservatorship. These local rules lead to a mandatory, but clinically contraindicated, discontinuation of medication treatment during detention while another Riese hearing is scheduled and a court decision is awaited. The local rule is reportedly based upon existing law that allows a court order for medication to remain in effect until the expiration of detention or the initial up-to14-day hold, but does not mention the up-to 30-day hold when a patient is in need of an extension of intensive treatment or the second up-to 30-day hold (in counties that use this option).
- Double referral. This bill is double referred. Should it pass out of this Committee, it will be referred to the Senate Committee on Judiciary.
- Prior legislation. SB 1227 (Eggman, Chapter 619, Statutes of 2022) permits a second up-to 30 days of intensive treatment period under the LPS Act, in counties that choose this option, for a person who is still in need of intensive services, and the certification for an additional up-to 30 days has begun, as specified.
- Support. The Psychiatric Physicians Alliance of California (PPAC) states that this bill amends current law, which codified the findings in Riese v. St Mary’s [259 Cal. Rptr. 669, 774 P.2d 698 (1989)], that held that patients may not be medicated over their objection with antipsychotics absent a court finding that they lack the capacity to refuse antipsychotic medications. PPAC states the court did not definitively address the question of duration of the court finding of incapacity, though by implication a person who has regained capacity after sufficient therapy with antipsychotic medication over objection should not be subject to involuntary medication. Conversely, the persistence of patient incapacity could also argue for the persistence of the authority to medicate over objection, even through multiple holds. PPAC and the California State Association of Psychiatrists argue that medications must be carefully titrated and monitored; stopping or interrupting such medication at arbitrary points during LPS detention, based on local court rules, exposes patients to unjustified clinical risks. This can also prolong the length of stay in inpatient settings. Nothing in this bill would alter the current ability of individuals to petition for the discontinuation of involuntary treatment.
- Opposition. Disability Rights California (DRC) states that this bill is a grave erosion of the rights to bodily autonomy and due process for individuals involuntarily detained. Multiple medication capacity hearings during the same detention are not redundant and are an important fixture of due process. DRC argues if a patient is still refusing psychiatric medication after receiving weeks of treatment, they likely have good reasons to refuse. For example, side effects from psychiatric medications can be extreme. One study found 15-30% of patients over the age of 45 developed Tardive Dyskinesia, a severe and permanent movement disorder after one year of treatment from psychiatric medication. DRC also disagrees that holding multiple Riese hearings is an administrative burden, and does not believe this rises to the level of necessitating elimination of important civil rights. These hearings are held in the facility, where psychiatrists are already working. There is no interruption in psychiatric treatment when Riese petitions are filed and heard timely. These petitions are usually prioritized by the LPS hearing officer to ensure they’re held as soon as possible.
- Amendments. The author has requested the Committee approve an amendment to add an additional involuntary detention (the additional up-to 30-day hold in counties that choose this option) to this bill.
SUPPORT AND OPPOSITION:
Support: California State Association of Psychiatrists (sponsor)
Psychiatric Physicians Alliance of California
Oppose: Disability Rights California
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Discussed in Hearing
1MIN
Senate Floor
1MIN
Assembly Floor
20SEC
Assembly Standing Committee on Appropriations
19MIN
Assembly Standing Committee on Judiciary
19MIN
Assembly Standing Committee on Health
2MIN
Senate Floor
18MIN
Senate Standing Committee on Judiciary
29MIN
Senate Standing Committee on Health
Bill Author
Bill Co-Author(s):