BILL ANALYSIS
SENATE HEALTH AND HUMAN SERVICES
COMMITTEE ANALYSIS
Senator Deborah V. Ortiz, Chair
BILL NO: AB 1424
A
AUTHOR: Thomson
B
AMENDED: May 1, 2001
HEARING DATE: July 11, 2001
1
FISCAL: Judiciary/Appropriations
4
2
CONSULTANT:
4
McCarthy / ak
SUBJECT
Mental Health: involuntary treatment
SUMMARY
Expands family involvement in the Lanterman-Petris-Short
involuntary commitment process; adds patient's medical and
psychiatric records to the list of "historical" information
that must be considered in involuntary commitment
proceedings; requires specified training for those involved
in commitment proceedings; and prohibits disability
insurers, health plans and the Medi-Cal program from
conditioning services eligibility on a patient's legal
status.
ABSTRACT
Existing law:
Involuntary commitment initial 72-hour and 14-day holds
1.Authorizes, under the Lanterman-Petris-Short (LPS) Act,
an initial involuntary detention--for a period of up to
72 hours for evaluation and treatment--of persons who, as
a result of a mental disorder, are dangerous to
themselves or others, or who are "gravely disabled."
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This is commonly referred to as a "72-hour hold" or a
"5150." [Welfare and Institutions Code (WIC) Section
5150]
2.Authorizes a peace officer and certain other designated
persons to, upon probable cause, take or cause to be
taken an individual into custody and transport the
individual to a facility designated by the county with
the authority to conduct a "5150" evaluation. [WIC
Section 5150]
3.Provides that a person who is detained for 72 hours under
the above "5150" provision may be "certified" for an
additional 14 days of involuntary detention and treatment
if: a) the person has been advised of the need for, but
has not been willing or able to accept, treatment on a
voluntary basis; and b) the professional staff of the
facility finds that the person continues to be a danger
to self or others, or is gravely disabled. This is
commonly referred to as a "14-day hold" or a "5250."
[WIC Section 5250]
4.Provides that a "certification review hearing" must be
held within four days of the date on which a person is
certified for involuntary detention and treatment, unless
the person certified requests judicial review of his or
her detention prior to this hearing. This hearing is to
determine whether "probable cause" exists that the person
certified is, as a result of a mental disorder, a danger
to self or others, or is gravely disabled. If the
certification review hearing officer finds probable cause
that the person meets one or more of these commitment
criteria, the individual may be detained for the
remainder of the certification period. [WIC Section
5254-5256.7]
Additional 14-day, 30-day holds, one-year conservatorships
5.Provides that a person who has been detained on the basis
of being dangerous to self may be certified for an
additional (i.e., a second) 14 days of involuntary
detention and treatment, after the initial 72-hour hold
and 14-day certification, for a total of 31 days, if the
person continues to be imminently suicidal. [WIC Section
5260]
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6.Provides that, upon the expiration of the initial 72-hour
hold and 14-day certification, an individual who
continues to be gravely disabled, and is unable or
unwilling to accept treatment on a voluntary basis, may
be placed under a 30-day temporary conservatorship and
then a permanent, one-year conservatorship, which is
renewable. [WIC Section 5350 et seq.] (As an
alternative to conservatorship, certain counties are
authorized to impose an additional 30-day certification,
after the expiration of the initial 72-hour hold and
14-day certification, for persons being detained on the
basis of grave disability.) [WIC Section 5270.10 et
seq.]
Information on patient's medical history
7.Requires a "certification review hearing" officer, judge
or jury, when applying the definition of mental disorder
in the above proceedings, to consider information about
the "historical course of the person's mental disorder",
as determined by all available relevant information, when
it has a direct bearing on the determination of whether
the person is a danger to others, or to himself or
herself, or is gravely disabled as a result of a mental
illness. Further, provides that the "historical course"
may include, but is not limited to, evidence presented by
persons who have provided, or are providing, mental
health or related support services to the patient, or
evidence presented by family members or any other person
designated by the patient.
8.Allows, but does not require, the hearing officer, court,
or jury to exclude evidence it deems to be irrelevant due
to remoteness of time or dissimilarity of circumstances.
[WIC Section 5008.2]
Confidentiality of records
9.Establishes confidentiality of mental health information
and records. [WIC Section 5328 et seq.]
Insurance coverage/reimbursement for mental health
treatment
10.Sets forth detailed statutory provisions governing
health care service plans [Health and Safety Code Section
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1340 et seq.) and disability insurers [Insurance Code
Section 10110 et seq.]
11.Provides for the Medi-Cal program, administered by the
State Department of Health Services, under which
qualified low-income persons are provided with health
services, including mental health services. [WIC Section
14000 et seq.]
This bill:
Information on patient's medical history
1.Expands the list of "historical course" information that
a hearing officer, court, or jury must consider, in
specified commitment and conservatorship proceedings, to
include the patient's medical records, including
psychiatric records, and information voluntarily
presented by the patient.
2.Requires, in regard to the "historical course"
information described in "1" above, that treatment
facilities make "every reasonable effort" to make
information provided by a patient's family available to
the court. Also, clarifies that information provided by
family members is voluntary.
3.Requires (rather than permits as under current law) the
hearing officer, court or jury to exclude from
consideration "historical course" evidence it determines
to be irrelevant because of remoteness of time or
dissimilarity of circumstances.
4.Requires (rather than permits as under current law) that,
when determining if probable cause exists to take, or
cause to be taken, a person into custody for a 72-hour
hold for psychiatric evaluation and treatment, any person
with the legal authority to make that determination must
consider "available relevant information about the
historical course of the person's mental disorder". Such
information must be considered if the person making the
determination finds that the information has a reasonable
bearing on the determination as to whether the person is
a danger to others, or to himself or herself, or is
gravely disabled as a result of the mental illness.
5.Specifies that such information (about the "historical
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course of the person's mental disorder", for the purpose
of a probable court hearing) includes evidence presented
by the person who has provided or is providing mental
health or related support services to the person, as well
as evidence presented by one or more members of the
family of that person. This is subject to the same
condition as above that the information must have a
reasonable bearing on the probable cause determination at
issue.
6.Requires that an agency or facility providing mental
health treatment to an individual who is subject to a
72-hour hold, 14-day certification, second 14-day
certification for suicidal persons, or a 30-day
certification for gravely disabled persons, must obtain
his or her medication history, if possible.
Confidentiality requirement
7.Provides that the existing statute governing the
confidentiality of mental health information and records
[WIC Section 5328] is not limited by (i.e., applies to)
the provisions described in #'s 4,5, and 6 above.
Training:
8.Requires the Department of Mental Health (DMH or
department) to provide training and technical assistance
to counties and their contractors, as well as mental
health professionals, law enforcement officials,
certification review hearing officers, and other
individuals involved in making treatment and involuntary
commitment decisions.
Requires the training to include information on the legal
requirements for detaining a person for involuntary
inpatient treatment, criteria for when a person may be
considered to be gravely disabled, and methods for
ensuring that decisions made regarding involuntary
treatment, pursuant to existing law, "direct patients
toward the most effective treatment". Also, requires DMH
to include mental health clients, parents, other family
members, and advocates in the design and delivery of the
training program.
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Insurance coverage/reimbursement for mental health
treatment:
9.Prohibits a disability insurer or health care service
plan or, under the Medi-Cal program, the State Department
of Health Services, from utilizing any information
regarding whether a person's psychiatric inpatient
admission was made on a voluntary or involuntary basis
for the purpose of determining eligibility for claim
reimbursement. Similarly, provides that the fact that a
person has been taken into custody under the existing
involuntary commitment procedures (LPS Act) may not be
used by such entities doing business in California, in
the determination of the person's eligibility for payment
or reimbursement for mental health or other health care
services.
FISCAL IMPACT
According to the Assembly Appropriations Committee
analysis, there would be moderate costs to DMH--estimated
at $200,000 (GF) annually--to provide the training and
technical assistance to counties and others on involuntary
commitments.
BACKGROUND AND DISCUSSION
1.AB 1424 - Overview
This bill makes several changes to the LPS Act including:
Increasing the ability of family members to have
input at various stages in the commitment process;
Requiring police officers and other authorized
court officials to consider information on the
"historical course" of a person's illness, when
determining probable cause to take the person into
custody for a 72-hour 5150 evaluation;
Requiring treatment facilities to make "every
reasonable effort to make information provided by
family members available to the court;
Requiring treatment facilities to obtain the
medication history of patients, if possible;
Prohibiting disability insurers and health plans,
as well as the Medi-Cal program, from making
eligibility determinations for services or benefits or
for claim reimbursement, based on an individual
patient's voluntary or involuntary treatment status;
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Providing training to those making commitment
decisions to enable a more consistent implementation
of current law.
2.Training for those involved in making commitment
decisions
As noted above, this bill requires DMH to:
Provide training and technical assistance to
counties and their contractors, as well as other
individuals involved in making treatment and
involuntary commitment decisions;
Specify that the training must include information
relative to legal requirements for detaining a person
for involuntary inpatient treatment, including
criteria for when a person may be considered gravely
disabled, and methods for ensuring that decisions made
regarding involuntary treatment direct patients toward
the most effective treatment;
Include clients, parents, other family members, and
advocates in the design and delivery of the training;
Develop a proposed curriculum and schedule for
frequency of the training with input from all the
stakeholders in the mental health delivery system.
A similar training requirement was contained in the
author's AB 1800 of last session. The need for such
training has been recognized since at least 1986, when
the "Russell" study, which was mandated by SB 1708
(Russell), Statutes of 1986, Ch. 1272, called for uniform
training and certification standards for personnel who
are routinely involved in the implementation of the LPS
Act. (See Lewin & Associates, Evaluation of Proposed
Changes to California's Lanterman-Petris-Short Civil
Commitment Statute Pursuant to SB 1708 (Chapter 1272,
1986), at p. 105.)
3.Family involvement in the commitment process
Current law specifies that information on the "historical
course" of a person's mental illness that a court must
consider, may include evidence presented from a variety
of sources, including "evidence presented by family
members, or any other person designated by the patient."
[WIC Section 5008.2.] However, according to the author,
family members frequently complain of inconsistent
implementation of this provision by hearing officers and
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judges, and of feeling that their voices are not being
heard despite their longstanding involvement with, and
intimate knowledge of, their loved ones who are the
subject of the commitment or conservatorship proceedings.
According to the author, AB 1424 will increase the
ability of family members to have meaningful input at the
initial detention stage and throughout the commitment
process by clarifying and strengthening the historical
course information requirements.
1.Obtaining a patient's medication history, confidentiality
of data
AB 1424 would add a new requirement that treatment
facilities must obtain a patient's medication history,
whenever possible. Initial concerns were raised by some
regarding the confidentiality of such information.
However, the bill now provides that Section 5328, which
is the existing statute governing the confidentiality of
mental health information and records, is not limited by
this provision. [See proposed WIC Section 5328(w)]. In
other words, medication history information from other
sources may only be disclosed to the treatment facility
in accordance with existing confidentiality requirements.
However, this bill also allows the "historical course"
information considered by a court to include "the
patient's medical records, including psychiatric
records".
5.Prohibition on conditioning eligibility for services or
benefits based on patient's legal status.
The California Psychiatric Association explains the problem
as follows: "The accounts by persons with mental
illnesses and their families of having to get
involuntarily admitted to get insurance coverage are
numerous. Our members indicate that they consistently
have this problem with carriers. Consequently, some
sophisticated consumers who know they need
hospitalization (or their families) request to be placed
on involuntary status to assure insurance coverage.
Legal status should never be used as a test for medical
necessity for treatment. It certainly is not true for
any other kind of illness."
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In response to this problem, author intends the bill to
prohibit a disability insurer, health care service plan,
or, under the Medi-Cal program, the State Department of
Health Services, from utilizing any information regarding
whether a person's psychiatric inpatient admission was
made on a voluntary or involuntary basis for the purpose
of determining eligibility for claim reimbursement. It
similarly provides that the fact that a person has been
taken into custody under the LPS Act may not be used by
such entities in the determination of the person's
eligibility for payment or reimbursement for mental
health or other health care services.
6.Author's stated purpose
The author argues that persons with mental illness are
best served in a system of care that supports and
acknowledges the role of the family, and that the bill
facilitates their involvement. The author also argues
that the bill would eliminate some of the barriers to
appropriate levels of care in the civil commitment
process for the mentally ill without changing the
underlying LPS criteria.
According to the author, "families of persons with
serious mental illness find the Lanterman-Petris-Short
Act system difficult to access and not supportive of
family information regarding history and symptoms." The
author states that "persons with mental illness are best
served in a system of care that supports and acknowledges
the role of the family, including parents, children,
spouses, significant others, and consumer-identified
natural resource systems."
The author further states that:
Historical evidence -- "The only evidence presented to
the court, upon which a commitment determination is
based, is the testimony of inpatient treatment providers,
testimony from the detained individual, and observation
of the detained individual's behavior while in court
without any regard or presentation of historical factors
which might make clear the true present clinical state of
the individual to the court".
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Training -- "Training should be improved for various
providers and professionals who regularly make
determinations regarding involuntary holds"
Insurance, Medi-Cal treatment coverage -- "A patient's
legal status should have no bearing on whether or not
his/her condition warrants acute hospital care".
7.Arguments in support
Representatives of the National Alliance for the Mentally
Ill state that, more often than not, the only evidence
presented to the court and upon which a commitment
determination is based is the testimony of inpatient
treatment providers, testimony from the detained person,
and observation of the person's behavior while in court.
The California Mental Health Directors Association
(CMHDA) state in support of AB 1424 that families should
be a part of the response to individuals for whom an
involuntary hold is being contemplated, subject to
existing rules of evidence and court procedures. CMHDA
also asserts that this bill's language is designed to
include the review of medical records, including
psychiatric records, by the court; improve training for
various individuals who regularly make determinations
regarding involuntary holds; and include input from
individuals providing mental health services. The
California Psychiatric Association (CPA) also supports
the legislation, stating that one of the most important
provisions in the bill is the prohibition on Medi-Cal
programs and health insurers considering the patient's
legal status in determining eligibility for services or
coverage. According to CPA, "[t]hese reforms will assure
that persons who need treatment are not artificially
precluded from receiving it by either insurance rules or
inappropriate evidentiary rules."
8.Arguments in opposition
The California Association of Mental Health Patients
Rights Advocates (CAMHPRA), while supportive of some
provisions of the bill, has taken a "support if amended"
position on AB 1424. CAMHPRA requests several amendments
to provisions of the bill pertaining to training
requirements, direct access of hearing officers to the
patient's medical records, and certain "legislative
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findings and declarations" contained in the bill. (See
"Comments and Questions" below for more detail on the
requested amendments. The California Judges Association
also takes a "support if amended" position and requests
an amendment pertaining to confidentiality of medical
records (See "Comments and questions" below).
The Alameda County Network of Mental Health Clients
opposes AB 1424, stating the bill would allow family
members to gain the right to make treatment decisions for
persons who are not minor children. The Network argues
that current law, Probate Code Section 3200, already
provides for a medical treatment order without an
individual's consent and that current law, which requires
a court order and makes it difficult for a family member
to override an individual's treatment decision, should
remain in effect. The Network further argues that AB
1424 makes a mockery of due process, resulting in
discrimination and denial of equal protection.
9.Related Pending Legislation
SB 224 (Speier) creates the Breast and Cervical
Cancer treatment fund to provide Medi-Cal coverage of
low income women who are not otherwise eligible for
Medi-Cal with no share of cost. That bill is in the
Assembly Health Committee.
SB 891 (Escutia) would establish demonstration
projects providing expanded community-based
post-discharge services for persons be released from a
mental health inpatient treatment facility,
especially, self-help and peer help services. This
bill is in the Assembly Health Committee.
SB 931 (Burton) would establish a statewide 4-year
grant program to provide counties with funds to expand
voluntary community-based mental health services to
persons with mental illness who are being discharged
from a period of inpatient involuntary commitment.
Also, specifies services required to be provided by
participating counties. This bill is in the Assembly
Health Committee.
AB 213 (Nation) adds marriage and family therapists
(MFT's) to the list of mental health professionals who
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may approve disclosure of information and records
relating to services provided to mentally disordered
patients, in instances where the patient has
designated persons to whom the information or records
may be released. AB 213 passed this SH&HS Committee
on May 3, 2001 and is in enrollment.
AB 334 (Steinberg) revises an existing program,
under the Adult and Older Adult Mental Health Systems
of Care Act, through which grants are provided to
county mental health departments to provide a
community-based, integrated services program for
persons with mental illness who are homeless or at
risk of homelessness. That bill also will be heard in
this Committee on July 11, 2001.
AB 1421 (Thomson) would establish the "Assisted
Outpatient Treatment Demonstration Project Act of
2001" authorizing a new type of outpatient involuntary
commitment. That bill is in the Senate Health and
Human Services Committee; it is two-year bill.
QUESTIONS AND COMMENTS
Requested amendments
1.The California Association of Mental Health Patient's
Rights Advocates (CAMHPRA) requests the following
amendments:
a. Legislative findings and declarations -- Delete the
statement in the "Legislative findings and
declarations" portion of the bill, Section 1 (a), that
"families of persons with serious mental illness find
the LPS Act system difficult to access and not
supportive of family information regarding history and
symptoms".
CAMPHRA argues that this statement is an assumption
not substantiated by formal research or statistics and
is based on anecdotal information.
a. Training - Include language in the proposed WIC
Section 5013 stating that,
"The training shall emphasize that voluntary
treatment is preferable over involuntary treatment
whenever the patient is willing and able to be a
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voluntary patient."
a. Notification of family members of certification
review hearing - Specify that this bill's proposed
revisions to WIC Section 5008.2 are subject to
existing WIC section 5256.4.
WIC Section 5256.4 states that "reasonable attempts
shall be made by the mental health facility to notify
family?of the certification review hearing, unless the
patient requests that this information not be
provided. The patient shall be advised by the
facility that is treating the patients that he or she
has the right to request that this information not be
provided". AB 1424 (see Section 5008.2) would require
the inclusion of evidence "voluntarily presented by
family members" when determining whether an individual
is gravely disabled or a danger to him or her self or
others for the purpose of an initial 14-day hold or
subsequent extensions of the hold. Under current law,
within 4 days after the initial hold commences, a
"certification review" hearing is held by the court to
determine "probable cause" that the person meets the
criteria for continued involuntary commitment.
CAMHPRA argues that the proposed provision in AB 1424
to include the evidence of family members in certain
proceedings should not supercede the patient's right
to not notify family members regarding certification
review hearings.
a. Medical records access -- Delete the language in
the proposed bill requiring direct access by the
hearing officer of information found in a patient's
medical records. (See AB 1424 Section 5008.2).
CAMHPRA argues that this provision of AB 1424 is
unreasonable because medical records may contain
hearsay information, misinformation or information for
which the source is unclear. According to CAMHPRA, it
is one thing to have the hearing officer hear a
representative of a mental health facility present
direct oral information regarding a patient's history,
as this gives the mental health patient the
opportunity to respond to and clarify any
misinformation. However, CAMPRHA states that AB 1424
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would permit a hearing officer to read a medical chart
to him or her self, without giving an indication to
the patient of what information is being read and
considered as part of the hearing officer's
decision-making process, resulting in a serious
impairment of the patient's due process rights.
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1.The California Judges Association (CJA) requests the
following amendment:
Add to proposed changes to WIC Section 5008.2 the phrase
"as presented to the court" (i.e., add to the provision
of the bill regarding court consideration of the
patient's medical records, including psychiatric
records).
CJA requests this amendment, stating the proposed
provision in the bill is "?problematic regarding
confidentiality, in that a treating mental health
facility cannot obtain prior treatment records without
the patient's consent."
PRIOR ACTIONS
Assembly Floor: 78 - 0 Pass
Assembly Appropriations: 21 - 0 Do Pass
Assembly Judiciary: 9 - 0 Do Pass as
Amended
Assembly Health: 12 - 0 Do Pass as
Amended
POSITIONS
Support: California Mental Health Directors Association
California Psychiatric Association
California Treatment Advocacy Coalition
County of Los Angeles, Board of Supervisors
LPS Reform Task Force (Southern California
Psychiatric Society and
NAMI Los Angeles)
NAMI - California
NAMI - California Consumer Council
NAMI in:
Los Angeles
Pomona Valley
Sacramento
Santa Barbara
Ventura
Stanley Foundation Research Programs/NAMI
Research Institute
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(Maryland)
Treatment Advocacy Center (Virginia)
Union of American Physicians and Dentists
13 individual letters
Support California Association of Mental Health
Patients' Rights Advocates
if Amended: California Healthcare Association
California Judges Association
Oppose:Alameda County Network of Mental Health Clients
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