Bill Text: CA SB938 | 2015-2016 | Regular Session | Amended

California Senate Bill 938 (Prior Session Legislation)

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 NUMBER: SB 938	AMENDED
	BILL TEXT

	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
 drugs.   medications. 
   Existing law authorizes a conservator to place a conservatee in a
secured perimeter residential care  facility,  
facility for the elderly,  as specified, or to 
administer   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).
  (MNCDs), as defined.  The bill would require
 petitions   a petition  requesting the
authority to administer  certain prescribed medications
  psychotropic medications, as defined,  to be
supported by a declaration of a physician or psychologist 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 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,
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. 

   (5) 
    (4)  Psychotropic medications  are often
  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. 
   (6) 
    (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. 
   (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) 
    (6)  Therefore, granting powers to a conservator to
authorize these medications for the treatment of  a person with
 an MNCD requires the 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." 

   (b) 
    (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 as defined in the last
published edition of the "Diagnostic and Statistical Manual of Mental
Disorders."   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  (e).   (f). 
   (4) The  court finds that the  proposed placement
in a  locked facility   secured perimeter
residential care facility for the elderly  is the least
restrictive placement appropriate to the needs of the conservatee.

   (c) 
    (d)  Notwithstanding any other law, a conservator of a
person may authorize the administration of psychotropic medications
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."   MNCD. 
   (2) The conservatee lacks the capacity to give informed consent to
the administration of psychotropic medications for  the
  his or her  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  or would benefit from 
appropriate medication as demonstrated by evidence presented by the
physician or psychologist referred to in paragraph (3) of subdivision
 (e).   (f).  
   (d) 
    (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  (c)
  (d)  shall be by an accredited practitioner of
that religion in lieu of the administration of medications. 
   (e) 
    (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 
(b)   (c)  or  (c)   (d) 
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, 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)
  (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.   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.
   (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.
   (5) The petition may be filed by any of the persons designated in
Section 1891. 
   (f) 
    (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. 
   (g) 
    (h)  A petition to terminate authority granted under
this section shall be governed by Section 2359. 
   (h) 
    (i)  Nothing in this section shall be construed to
affect a conservatorship of the estate of a person who has an MNCD.

   (i) 
    (j)  Nothing in this section shall affect the laws that
would otherwise apply in emergency situations. 
   (j) 
    (k)  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. 
   (l) For purposes of this section, "psychotropic medications"
includes, but is not limited to, anxiolytic agents, antidepressants,
mood stabilizers, antipsychotic medications, anti-Parkinson agents,
hypnotics, and psychostimulants. "Psychotropic medications" does not
include medications approved by the federal Food and Drug
Administration for the treatment of an MNCD.