Bill Text: CA AB1907 | 2011-2012 | Regular Session | Introduced

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

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Bill Title: Inmates: psychiatric medication.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Passed) 2012-09-30 - Chaptered by Secretary of State - Chapter 814, Statutes of 2012. [AB1907 Detail]

Download: California-2011-AB1907-Introduced.html

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BILL NUMBER: AB 1907	INTRODUCED
	BILL TEXT


INTRODUCED BY   Assembly Member Bonnie Lowenthal

                        FEBRUARY 22, 2012

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



	LEGISLATIVE COUNSEL'S DIGEST


   AB 1907, as introduced, Bonnie Lowenthal. Inmates: psychotropic
medication.
   Existing law requires that no inmate be administered psychotropic
medication on a nonemergency basis without the inmate's informed
consent, unless after a noticed hearing is conducted in which an
administrative law judge determines by clear and convincing evidence
that the inmate has a mental illness or disorder, that as a result of
that illness the inmate is gravely disabled and lacks the capacity
to consent or refuse treatment or is a danger to self or others if
not medicated, that there is no less intrusive alternative to
involuntary medication, and that the medication is in the inmate's
best interest.
   This bill would extend these requirements to inmates in county
jail for felony convictions that are not serious, violent, or sexual
offenses. Because this bill would place additional burdens on local
governments, it would create 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 these
statutory provisions.
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 2602 of the Penal Code is amended to read:
   2602.  (a) Except as provided in subdivision (b), no person
sentenced to imprisonment in a state prison  or to imprisonment
pursuant to subdivision (h) of Section 1170  shall be
administered any psychotropic medication without his or her prior
informed consent.
   (b) If a psychiatrist determines that an inmate should be treated
with psychotropic medication, but the inmate does not consent, the
inmate may be involuntarily treated with the medication. Treatment
may be given on either a nonemergency basis as provided in
subdivision (c), or on an emergency basis as provided in subdivision
(d).
   (c) The Department of Corrections and Rehabilitation  or
sheriff  may seek to initiate involuntary medication on a
nonemergency basis only if all of the following conditions have been
met:
   (1) A psychiatrist has determined that the inmate has a serious
mental disorder.
   (2) A psychiatrist has determined that, as a result of that mental
disorder, the inmate is gravely disabled or a danger to self or
others and does not have the capacity to refuse treatment with
psychotropic medications.
   (3) A psychiatrist has prescribed one or more psychotropic
medications for the treatment of the inmate's disorder, has
considered the risks, benefits, and treatment alternatives to
involuntary medication, and has determined that the treatment
alternatives to involuntary medication are unlikely to meet the needs
of the patient.
   (4) The inmate has been advised of the risks and benefits of, and
treatment alternatives to, the psychotropic medication and refuses or
is unable to consent to the administration of the medication.
   (5) The inmate is provided a hearing before an administrative law
judge.
   (6) The inmate is provided counsel at least 21 days prior to the
hearing. The hearing shall be held not more than 30 days after the
filing of the notice with the Office of Administrative Hearings,
unless counsel for the inmate agrees to extend the date of the
hearing.
   (7) The inmate and counsel are provided with written notice of the
hearing at least 21 days prior to the hearing. The written notice
shall do all of the following:
   (A) Set forth the diagnosis, the factual basis for the diagnosis,
the basis upon which psychotropic medication is recommended, the
expected benefits of the medication, any potential side effects and
risks to the inmate from the medication, and any alternatives to
treatment with the medication.
   (B) Advise the inmate of the right to be present at the hearing,
the right to be represented by counsel at all stages of the
proceedings, the right to present evidence, and the right to
cross-examine witnesses. Counsel for the inmate shall have access to
all medical records and files of the inmate, but shall not have
access to the confidential section of the inmate's central file which
contains materials unrelated to medical treatment.
   (C) Inform the prisoner of his or her right to contest the finding
of an administrative law judge authorizing treatment with
involuntary medication by filing a petition for writ of
administrative mandamus pursuant to Section 1094.5 of the Code of
Civil Procedure, and his or her right to file a petition for writ of
habeas corpus with respect to any decision of the Department of
Corrections and Rehabilitation  or sheriff  to continue
treatment with involuntary medication after the administrative law
judge has authorized treatment with involuntary medication.
   (8) An administrative law judge determines by clear and convincing
evidence that the inmate has a mental illness or disorder, that as a
result of that illness the inmate is gravely disabled and lacks the
capacity to consent to or refuse treatment with psychotropic
medications or is a danger to self or others if not medicated, that
there is no less intrusive alternative to involuntary medication, and
that the medication is in the inmate's best medical interest.
   (9) The historical course of the inmate's mental disorder, as
determined by available relevant information about the course of the
inmate's mental disorder, shall be considered when it has direct
bearing on the determination of whether the inmate is a danger to
self or others, or is gravely disabled and incompetent to refuse
medication as the result of a mental disorder.
   (10) An inmate is entitled to file one motion for reconsideration
following a determination that he or she may receive involuntary
medication, and may seek a hearing to present new evidence, upon good
cause shown.
   (d) Nothing in this section is intended to prohibit a physician
from taking appropriate action in an emergency. An emergency exists
when there is a sudden and marked change in an inmate's mental
condition so that action is immediately necessary for the
preservation of life or the prevention of serious bodily harm to the
inmate or others, and it is impractical, due to the seriousness of
the emergency, to first obtain informed consent. If psychotropic
medication is administered during an emergency, the medication shall
only be that which is required to treat the emergency condition and
shall be administered for only so long as the emergency continues to
exist, but in no event longer than five days after the written notice
and counsel are provided pursuant to subdivision (c), unless the
department  or sheriff first obtains an order from an
administrative law judge authorizing the continuance of medication
beyond five days. The order may be issued ex parte upon a showing
that in the absence of the medication the emergency is likely to
recur. The request for an order shall be supported by an affidavit
showing specific facts. The inmate may present facts supported by an
affidavit in opposition to the request. If an order is issued, the
psychiatrist may continue the administration of the medication until
the hearing described in paragraph (5) of subdivision (c) is held.
   (1) The Department of Corrections and Rehabilitation  or
sheriff shall file with the Office of Administrative Hearings,
and serve on the inmate and his or her counsel the written notice
described in paragraph (7) of subdivision (c) within 72 hours of
commencing medication pursuant to this subdivision, unless either of
the following occurs:
   (A) The inmate gives informed consent to continue the medication.
   (B) A psychiatrist determines that the psychotropic medication is
not necessary and administration of the medication is discontinued.
   (2) If medication is being administered pursuant to this
subdivision, the hearing described in paragraph (5) of subdivision
(c) shall commence within 21 days of the filing and service of the
notice, unless counsel for an inmate agrees to a longer period of
time.
   (3) With the exception of the timeline provisions specified in
paragraphs (1) and (2) of subdivision (d) for providing notice and
commencement of the hearing in emergency situations, the inmate shall
be entitled to and be given the same due process protections as
specified in subdivision (c). The department  or sheriff 
shall prove the same elements supporting the involuntary
administration of psychotropic medication and the administrative law
judge shall be required to make the same findings described in
subdivision (c).
   (e) The determination that an inmate may receive involuntary
medication shall be valid for one year from the date of the
determination, regardless of whether the inmate subsequently gives
his or her informed consent.
   (f) If a determination has been made to involuntarily medicate an
inmate pursuant to subdivision (c) or (d), the medication shall be
discontinued one year after the date of that determination, unless
the inmate gives his or her informed consent to the administration of
the medication, or unless a new determination is made pursuant to
the procedures set forth in subdivision (g).
   (g) To renew an existing order allowing involuntary medication,
the department  or sheriff  shall file with the Office of
Administrative Hearings, and shall serve on the inmate and his or her
counsel, the written notice described in paragraph (7) of
subdivision (c). The notice shall specify that the request is for a
renewal.
   (1) The request to renew the order shall be filed and served no
later than 21 days prior to the expiration of the current order
authorizing involuntary medication.
   (2) To obtain a renewal order, the department  or sheriff
 shall provide the same due process protections as specified in
subdivision (c). The department  or sheriff  shall prove the
same elements supporting the involuntary administration of
psychotropic medication and the administrative law judge shall be
required to make the same findings described in subdivision (c).
   (3) Renewal orders shall be valid for one year from the date of
the hearing.
   (4) An order renewing a prior order may be granted based on clear
and convincing evidence that, but for the medication, the inmate
would revert to the behavior that was the basis for the prior order
authorizing involuntary medication, coupled with evidence that the
inmate lacks insight regarding his or her need for the medication,
such that it is unlikely that the inmate would be able to manage his
or her own medication and treatment regimen. No new acts need be
alleged or proven.
   (5) The hearing on any petition to renew an order for involuntary
medication shall be conducted prior to the expiration of the current
order.
   (h) In the event of a conflict between the provisions of this
section and the Administrative Procedure Act (Chapter 4.5 (commencing
with Section 11400) of Part 1 of Division 3 of the Government Code),
this section shall control.
  SEC. 2.  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.