Bill Text: CA SB938 | 2015-2016 | Regular Session | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
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 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 SENATE MARCH 15, 2016
INTRODUCED BY Senator Jackson
FEBRUARY 2, 2016
An act to amend Section 2356.5 of the Probate Code, relating to
protective proceedings. conservatorships.
LEGISLATIVE COUNSEL'S DIGEST
SB 938, as amended, Jackson. Protective proceedings:
conservator authorizations. Conservatorships: psy
ch otropic drugs.
Existing law authorizes a conservator to place a conservatee in a
secured perimeter residential care facility, as specified, or to
administer 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). The
bill would prohibit the placement of a conservatee in an acute
psychiatric hospital and psychiatric health facility, as specified.
The bill would require petitions requesting the authority
to administer certain prescribed medications to be supported by a
declaration of a licensed physician, psychiatrist,
physician or psychologist that includes specified
information , including, among other things, the
reasons for the request, information regarding the rationale for the
proposed medication, and information regarding the conservatee's
overall mental health assessment and treatment plan.
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 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
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 or mild 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. This will reduce costs to the conservatee and the
family of the conservatee, reduce costly administration by state and
county government, and safeguard the basic dignity and rights of the
conservatee. met, and the basic dignity and rights of
the conservatee can be safeguarded.
(4) Psychotropic medications or psychotropic drugs are those
medications administered for the purpose of affecting the central
nervous system to treat psychiatric disorders or illnesses.
These medications include, but are not limited to, anxiolytic agents,
antidepressants, mood stabilizers, antipsychotic medications,
anti-Parkinson agents, hypnotics, medications for dementia, and
psychostimulants.
(5) Psychotropic medications are often misused for people with
MNCDs to control behavior that conveys pain, distress, or
discomfort. discomfort and the administration of
psychotropic medications has been and can be abused by those who
prescribe and administer these medications.
(6) 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.
(7) Recent studies have shown that, in many instances,
psychotropic drugs are outperformed by placebos and can actually
worsen the cognitive ability of a person with an MNCD.
(8) The administration of psychotropic medications has been, and
can be, abused by caregivers.
(9)
(8) Therefore, granting powers to a conservator to
authorize these medications for the treatment of an MNCD requires the
protections specified in this section.
(b) 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 as defined in the last published
edition of the "Diagnostic and Statistical Manual of Mental
Disorders."
(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). (e ).
(4) The court finds that the proposed placement in a locked
facility is the least restrictive placement appropriate to the needs
of the conservatee.
(c) Notwithstanding any other law, a conservator of a person may
authorize the administration of psychotropic medications
appropriate for the care and treatment of to
a conservatee with an MNCD, upon a court's finding, by clear
and convincing evidence, of all of the following:
(1) The conservatee has an MNCD, as defined in the last published
edition of the "Diagnostic and Statistical Manual of Mental
Disorders."
(2) The conservatee lacks the capacity to give informed consent to
the administration of psychotropic medications
appropriate to the care of the for the treatment of an
MNCD, 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 appropriate medication as demonstrated
by evidence presented by the licensed physician,
psychiatrist, physician or psychologist referred
to in paragraph (4) (3) of subdivision
(f). (e).
(d) 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 (c) shall be by an
accredited practitioner of that religion in lieu of the
administration of medications.
(e) A conservatee who is to be placed in a facility pursuant to
this section shall not be placed in a mental health rehabilitation
center as described in Section 5675 of the Welfare and Institutions
Code, an institution for mental disease as described in Section 5900
of the Welfare and Institutions Code, an acute psychiatric hospital
as described in subdivision (b) of Section 1250 of the Health and
Safety Code, or a psychiatric health facility as described in
subdivision (a) of Section 1250.2 of the Health and Safety Code.
(f)
(e) 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 (b)
or (c) shall be supported by a declaration of a
licensed physician, or a licensed
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, except that the psychologist has at least two years of
experience in diagnosing MNCDs. The supporting declaration for a
petition requesting authority under subdivision (c) shall also
include all of the following:
(4) The petition requesting authority under subdivision (c) shall
be supported by a declaration of the licensed physician,
psychiatrist, or psychologist, and provide all of the following:
(A) The reasons for the request.
(B)
(A) A description of the conservatee's diagnosis and
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.
(C)
(D) The expected results of the medication.
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.
(D)
(E ) A description of any
the potential side effects of the recommended
medication.
(E)
(F) Whether the conservatee and his or her attorney
have had an opportunity to provide input on the medications
being prescribed. recommended medications.
(F) Information regarding the conservatee's overall mental health
assessment and treatment plan.
(G) Information regarding the rationale for the proposed
medication, provided in the context of past and current treatment
efforts, including, but not limited to, information on other
pharmacological and nonpharmacological treatments that have been
utilized and the conservatee's response to those treatments, a
discussion of symptoms not alleviated or ameliorated by other current
or past treatment efforts, and an explanation of how the
psychotropic medication being prescribed is expected to improve the
conservatee's symptoms.
(5)
(4) 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)
(5) The petition may be filed by any of the persons
designated in Section 1891.
(g)
(f) 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)
(g) A petition to terminate authority granted under
this section shall be governed by Section 2359.
(i)
(h) Nothing in this section shall be construed to
affect a conservatorship of the estate of a person who has an MNCD.
(j)
(i) Nothing in this section shall affect the laws that
would otherwise apply in emergency situations.
(k)
(j) 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.
