Bill Text: CA SB938 | 2015-2016 | Regular Session | Amended
Bill Title: Conservatorships: psychotropic medications and secured perimeter facilities.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Failed) 2016-11-30 - From Assembly without further action. [SB938 Detail]
Download: California-2015-SB938-Amended.html
BILL NUMBER: SB 938 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY AUGUST 19, 2016
AMENDED IN ASSEMBLY AUGUST 4, 2016
AMENDED IN ASSEMBLY JUNE 29, 2016
AMENDED IN SENATE MAY 31, 2016
AMENDED IN SENATE MARCH 15, 2016
INTRODUCED BY Senator Jackson
(Coauthor: Senator Wieckowski)
FEBRUARY 2, 2016
An act to amend Section 2356.5 of the Probate Code, relating to
conservatorships.
LEGISLATIVE COUNSEL'S DIGEST
SB 938, as amended, Jackson. Conservatorships: psychotropic
medications and secured perimeter facilities.
Existing law authorizes a conservator to place a conservatee in a
secured perimeter residential care facility for the elderly, as
specified, or to authorize the administration of certain prescribed
medications upon a court's finding that among other things, the
conservatee has dementia and a functional impairment. Existing law
requires certain findings to be made by the court for each type of
authority sought by the conservator and requires a petition for
authority to be supported by a declaration of a licensed physician or
psychologist, as specified, regarding these findings.
This bill would replace references to the term dementia in these
provisions with major neurocognitive disorders (MNCDs), as defined.
The bill would require a petition requesting the authority to
administer psychotropic medications, as defined, to be supported by a
declaration of a physician that includes specified information,
including, among other things, the recommended course of medication,
the expected effects of the recommended medication on the conservatee'
s overall mental health and treatment plan, including how the
medication is expected to improve the conservatee's symptoms, and a
description of the potential side effects of the recommended
medication. The bill would revise the court findings required for
placement in a secured perimeter facility. The bill would require the
Judicial Council, on or before July 1, 2017, to adopt rules of court
and develop appropriate forms for the implementation of these
provisions, as specified. The bill would make related changes and
additional findings and declarations of the Legislature.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 2356.5 of the Probate Code is amended to read:
2356.5. (a) The Legislature hereby finds and declares:
(1) That conservatees with major neurocognitive disorders (MNCDs),
as defined in the last published edition of the "Diagnostic and
Statistical Manual of Mental Disorders," should have a
conservatorship to serve their unique and special needs.
(2) Common forms of MNCDs are known as Alzheimer's disease,
vascular dementia, dementia with Lewy bodies, Parkinson dementia,
frontotemporal dementia, and mixed dementia.
(3) That, by adding powers to the probate conservatorship for
conservatees with MNCDs, their unique and special needs can be met,
and the basic dignity and rights of the conservatee can be
safeguarded.
(4) Psychotropic medications can be misused for people with MNCDs
to control behavior that conveys pain, distress, or discomfort and
the administration of psychotropic medications has been and can be
abused by those who prescribe and administer these medications.
(5) Since 2005, the federal Food and Drug Administration has
required the packaging of all antipsychotic medications, which fall
under a class of psychotropic medication, to contain a black box
warning label that the medication significantly increases the risk of
death for elderly people with MNCDs.
(6) Therefore, granting powers to a conservator to authorize these
medications for the treatment of a person with an MNCD requires the
additional protections specified in this section.
(b) For the purposes of this section, "MNCD" means a major
neurocognitive disorder, as defined in the latest published edition
of the "Diagnostic and Statistical Manual of Mental Disorders."
(c) Notwithstanding any other law, a conservator may authorize the
placement of a conservatee in a secured perimeter residential care
facility for the elderly operated pursuant to Section 1569.698 of the
Health and Safety Code, and which has a care plan that meets the
requirements of Section 87705 of Title 22 of the California Code of
Regulations, upon a court's finding, by clear and convincing
evidence, of all of the following:
(1) The conservatee has an MNCD.
(2) The conservatee lacks the capacity to give informed consent to
this placement and has at least one mental function deficit pursuant
to subdivision (a) of Section 811, and this deficit significantly
impairs the person's ability to understand and appreciate the
consequences of his or her actions pursuant to subdivision (b) of
Section 811.
(3) The conservatee needs or would benefit from a restricted and
secure environment, as demonstrated by evidence presented by the
physician or psychologist referred to in paragraph (3) of subdivision
(f).
(4) The proposed placement in a secured perimeter residential care
facility for the elderly is the least restrictive placement
appropriate to the needs of the conservatee.
(5) The secured setting is the choice of the conservator from
various setting options, as documented in the person-centered care
plan.
(d) Notwithstanding any other law, a conservator of a person may
authorize the administration of psychotropic medications to a
conservatee with an MNCD only upon a court's finding, by clear and
convincing evidence, of all of the following:
(1) The conservatee has an MNCD.
(2) The conservatee lacks the capacity to give informed consent to
the administration of psychotropic medications for his or her
treatment and has at least one mental function deficit pursuant to
subdivision (a) of Section 811, and this deficit or deficits
significantly impairs the person's ability to understand and
appreciate the consequences of his or her actions pursuant to
subdivision (b) of Section 811.
(3) The conservatee needs or would benefit from appropriate
medication as demonstrated by evidence presented by the physician as
provided in subdivision (f).
(e) Pursuant to subdivision (b) of Section 2355, in the case of a
person who is an adherent of a religion whose tenets and practices
call for a reliance on prayer alone for healing, the treatment
required by the conservator under subdivision (d) shall be by an
accredited practitioner of that religion in lieu of the
administration of medications.
(f) A petition for authority to act under this section is governed
by Section 2357, except:
(1) The conservatee shall be represented by an attorney pursuant
to Chapter 4 (commencing with Section 1470) of Part 1. Upon granting
or denying authority to a conservator under this section, the court
shall discharge the attorney or order the continuation of the legal
representation, consistent with the standard set forth in subdivision
(a) of Section 1470.
(2) The conservatee shall be produced at the hearing, unless
excused pursuant to Section 1893.
(3) The petition requesting authority under subdivision (c) shall
be supported by a declaration of a physician, or a psychologist
within the scope of his or her licensure, regarding each of the
findings required to be made under this section for any power
requested. The psychologist shall have at least two years of
experience in diagnosing MNCDs.
(4) The petition requesting authority under subdivision (d) shall
be supported by a declaration of a physician regarding each of the
findings required to be made under this section for any power
requested. The supporting declaration for a petition requesting
authority under subdivision (d) shall also include all of the
following:
(A) A description of the conservatee's diagnosis and a description
of the conservatee's behavior.
(B) The recommended course of medication.
(C) A description of the pharmacological and nonpharmacological
treatments and medications that have been previously used or
proposed, the less invasive treatments or medications used or
proposed, and why these treatments or medications have not been or
would not be effective in treating the conservatee's symptoms.
(D) The expected effects of the recommended medication on the
conservatee's overall mental health and treatment plan, including how
the medication is expected to improve the conservatee's symptoms.
(E) A description of the potential side effects of the recommended
medication, including any black box warnings issued by the federal
Food and Drug Administration as defined in Section 201.57(c)(1) of
Title 21 of the Code of Federal Regulations.
(F) Whether the conservatee and his or her attorney have had an
opportunity to provide input on the recommended medications.
(5) On or before July 1, 2017, the Judicial Council shall adopt
rules of court and develop appropriate forms for the implementation
of this section, and shall provide guidance to the court on how to
evaluate the request for authorization, including how to proceed if
information, otherwise required to be included in a request for
authorization under this section, is not included in a request for
authorization submitted to the court.
(6) The petition may be filed by any of the persons designated in
Section 1891.
(g) The court investigator shall annually investigate and report
to the court every two years pursuant to Sections 1850 and 1851 if
the conservator is authorized to act under this section. In addition
to the other matters provided in Section 1851, the conservatee shall
be specifically advised by the investigator that the conservatee has
the right to object to the conservator's powers granted under this
section, and the report shall also include whether powers granted
under this section are warranted. If the conservatee objects to the
conservator's powers granted under this section, or the investigator
determines that some change in the powers granted under this section
is warranted, the court shall provide a copy of the report to the
attorney of record for the conservatee. If no attorney has been
appointed for the conservatee, one shall be appointed pursuant to
Chapter 4 (commencing with Section 1470) of Part 1. The attorney
shall, within 30 days after receiving this report, do one of the
following:
(1) File a petition with the court regarding the status of the
conservatee.
(2) File a written report with the court stating that the attorney
has met with the conservatee and determined that the petition would
be inappropriate.
(h) If authority to administer psychotropic medications is granted
pursuant to subdivision (d), the conservator may change or adjust
psychotropic medications without further notice to, or approval from,
the court, provided that the change or adjustment is consistent with
the authority granted by the court to administer psychotropic
medications for purposes of therapeutic treatment directly related to
the MNCD, and the conservator has received information about
the risks, benefits, and nonpharmacological alternatives
of the proposed change or adjustment in advance of approving the
change or adjustment.
(i) If the authority to administer psychotropic medications is
granted pursuant to subdivision (d), the court shall review the grant
of authority as part of its periodic review conducted pursuant to
Section 1850.
(j) A petition to terminate authority granted under this section
shall be governed by Section 2359.
(k) Nothing in this section shall be construed to affect a
conservatorship of the estate of a person who has an MNCD.
(l) Nothing in this section shall affect the laws that would
otherwise apply in emergency situations.
(m) Nothing in this section shall affect current law regarding the
power of a probate court to fix the residence of a conservatee or to
authorize medical treatment for any conservatee who has not been
determined to have an MNCD.
(n) For purposes of this section, "psychotropic medications"
includes, but is not limited to, anxiolytic agents, antidepressants,
mood stabilizers, antipsychotic medications, hypnotics, and
psychostimulants. "Psychotropic medications" does not include
medications approved by the federal Food and Drug Administration for
the treatment of an MNCD or anti-Parkinson agents.
(o) This section shall not apply to a conservatee who is
prescribed a psychotropic or antipsychotic medication by a physician
in an acute care hospital setting or for purposes of diagnosis or
therapeutic treatment not directly related to the MNCD, including,
but not limited to, sedation prior to an invasive procedure or nausea
prevention or relief. In those circumstances, the informed consent
of the conservator may be obtained pursuant to the authority granted
under Section 2355.
