Amended in Assembly March 18, 2016

California Legislature—2015–16 Regular Session

Assembly Bill No. 1764

Introduced by Assembly Member Waldron

February 3, 2016

An act to amend Section begin delete 5346 end delete begin insert 5348 end insert of the Welfare and Institutions Code, relating to mental health.

LEGISLATIVE COUNSEL’S DIGEST

AB 1764, as amended, Waldron. Mental health services: assisted outpatient treatment.

Existing law, the Assisted Outpatient Treatment Demonstration Project Act of 2002, known as Laura’s Law, until January 1, 2017, grants each county the authority to offer certain assisted outpatient treatment services for its residents by adopting a resolution or through the county budget process and by making a finding that no mental health program, as specified, may be reduced as a result of implementation. Under that law, participating counties are required to begin delete provide end delete begin insert offer end insert prescribed assisted outpatient begin insert treatment end insert services, begin delete including end delete begin insert including, among other things, end insert a service planning and delivery begin delete process, that are client-directed and employ psychosocial rehabilitation and recovery principles. end delete begin insert process and a mental health personal services coordinator, as specified. end insert Existing law authorizes participating counties to pay for the services provided from moneys distributed to the counties from various continuously appropriated funds, including the Mental Health Services Fund when included in a county plan, as specified.

Existing law authorizes designated persons to request the county behavioral health director to file a petition in the superior court for an order for assisted outpatient treatment, for an initial period not to exceed 6 months, for a person who meets specified criteria. Existing law requires the county behavioral health director to investigate the appropriateness of filing the petition. Existing law also provides specified rights to a person who is the subject of the petition. begin insert Existing law requires participating counties to also offer the services described above on a voluntary basis. end insert

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This bill would make technical, nonsubstantive changes to those provisions.

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This bill would authorize participating counties to agree to act jointly to offer, or to contract with each other to offer, assisted outpatient treatment services pursuant to these provisions, subject to the approval of the State Department of Health Care Services. The bill would provide that the agreement may include all or a portion of those services and would require a county that is a party to the agreement to separately offer required services that are not included in the agreement.

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Vote: majority. Appropriation: no. Fiscal committee:  begin delete no end delete begin insert yes end insert . State-mandated local program: no.

The people of the State of California do enact as follows:

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begin insert SECTION 1. end insert   

end insert

begin insert Section 5348 of the end insert begin insert Welfare and Institutions Code end insert
begin insert is amended to read: end insert

5348.  

(a) For purposes of subdivision (e) of Section 5346, a
county that chooses to provide assisted outpatient treatment
services pursuant to this article shall offer assisted outpatient
treatment services including, but not limited to, all of the following:

(1) Community-based, mobile, multidisciplinary, highly trained
mental health teams that use high staff-to-client ratios of no more
than 10 clients per team member for those subject to court-ordered
services pursuant to Section 5346.

(2) A service planning and delivery process that includes the
following:

(A) Determination of the numbers of persons to be served and
the programs and services that will be provided to meet their needs.
The local director of mental health shall consult with the sheriff,
the police chief, the probation officer, the mental health board,
contract agencies, and family, client, ethnic, and citizen
constituency groups as determined by the director.

(B) Plans for services, including outreach to families whose
severely mentally ill adult is living with them, design of mental
health services, coordination and access to medications, psychiatric
and psychological services, substance abuse services, supportive
housing or other housing assistance, vocational rehabilitation, and
veterans’ services. Plans shall also contain evaluation strategies,
which shall consider cultural, linguistic, gender, age, and special
needs of minorities and those based on any characteristic listed or
defined in Section 11135 of the Government Code in the target
populations. Provision shall be made for staff with the cultural
background and linguistic skills necessary to remove barriers to
mental health services as a result of having
limited-English-speaking ability and cultural differences.
Recipients of outreach services may include families, the public,
primary care physicians, and others who are likely to come into
contact with individuals who may be suffering from an untreated
severe mental illness who would be likely to become homeless if
the illness continued to be untreated for a substantial period of
time. Outreach to adults may include adults voluntarily or
involuntarily hospitalized as a result of a severe mental illness.

(C) Provision for services to meet the needs of persons who are
physically disabled.

(D) Provision for services to meet the special needs of older
adults.

(E) Provision for family support and consultation services,
parenting support and consultation services, and peer support or
self-help group support, where appropriate.

(F) Provision for services to be client-directed and that employ
psychosocial rehabilitation and recovery principles.

(G) Provision for psychiatric and psychological services that
are integrated with other services and for psychiatric and
psychological collaboration in overall service planning.

(H) Provision for services specifically directed to seriously
mentally ill young adults 25 years of age or younger who are
homeless or at significant risk of becoming homeless. These
provisions may include continuation of services that still would
be received through other funds had eligibility not been terminated
as a result of age.

(I) Services reflecting special needs of women from diverse
cultural backgrounds, including supportive housing that accepts
children, personal services coordinator therapeutic treatment, and
substance treatment programs that address gender-specific trauma
and abuse in the lives of persons with mental illness, and vocational
rehabilitation programs that offer job training programs free of
gender bias and sensitive to the needs of women.

(J) Provision for housing for clients that is immediate,
transitional, permanent, or all of these.

(K) Provision for clients who have been suffering from an
untreated severe mental illness for less than one year, and who do
not require the full range of services, but are at risk of becoming
homeless unless a comprehensive individual and family support
services plan is implemented. These clients shall be served in a
manner that is designed to meet their needs.

(3) Each client shall have a clearly designated mental health
personal services coordinator who may be part of a
multidisciplinary treatment team who is responsible for providing
or assuring needed services. Responsibilities include complete
assessment of the client’s needs, development of the client’s
personal services plan, linkage with all appropriate community
services, monitoring of the quality and followthrough of services,
and necessary advocacy to ensure each client receives those
services that are agreed to in the personal services plan. Each client
shall participate in the development of his or her personal services
plan, and responsible staff shall consult with the designated
conservator, if one has been appointed, and, with the consent of
the client, shall consult with the family and other significant
persons as appropriate.

(4) The individual personal services plan shall ensure that
persons subject to assisted outpatient treatment programs receive
age-appropriate, gender-appropriate, and culturally appropriate
services, to the extent feasible, that are designed to enable
recipients to:

(A) Live in the most independent, least restrictive housing
feasible in the local community, and, for clients with children, to
live in a supportive housing environment that strives for
reunification with their children or assists clients in maintaining
custody of their children as is appropriate.

(B) Engage in the highest level of work or productive activity
appropriate to their abilities and experience.

(C) Create and maintain a support system consisting of friends,
family, and participation in community activities.

(D) Access an appropriate level of academic education or
vocational training.

(E) Obtain an adequate income.

(F) Self-manage their illnesses and exert as much control as
possible over both the day-to-day and long-term decisions that
affect their lives.

(G) Access necessary physical health care and maintain the best
possible physical health.

(H) Reduce or eliminate serious antisocial or criminal behavior,
and thereby reduce or eliminate their contact with the criminal
justice system.

(I) Reduce or eliminate the distress caused by the symptoms of
mental illness.

(J) Have freedom from dangerous addictive substances.

(5) The individual personal services plan shall describe the
service array that meets the requirements of paragraph (4), and to
the extent applicable to the individual, the requirements of
paragraph (2).

(b) A county that provides assisted outpatient treatment services
pursuant to this article also shall offer the same services on a
voluntary basis.

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(c) Counties that authorize the application of this article
pursuant to Section 5349 may agree to act jointly to offer, or to
contract with each other to offer, assisted outpatient treatment
services pursuant to this article, subject to the approval of the
State Department of Health Care Services. The agreement may
include all or a portion of the assisted outpatient treatment services
offered pursuant to this article. A county that is a party to the
agreement shall separately offer assisted outpatient treatment
services that are not included in the agreement, in accordance
with this article.

end insert begin delete

(c)

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begin insert (d) end insert  Involuntary medication shall not be allowed absent a separate
order by the court pursuant to Sections 5332 to 5336, inclusive.

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(d)

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begin insert (e) end insert  A county that operates an assisted outpatient treatment
program pursuant to this article shall provide data to the State
Department of Health Care Services and, based on the data, the
department shall report to the Legislature on or before May 1 of
each year in which the county provides services pursuant to this
article. The report shall include, at a minimum, an evaluation of
the effectiveness of the strategies employed by each program
operated pursuant to this article in reducing homelessness and
hospitalization of persons in the program and in reducing
involvement with local law enforcement by persons in the program.
The evaluation and report shall also include any other measures
identified by the department regarding persons in the program and
all of the following, based on information that is available:

(1) The number of persons served by the program and, of those,
the number who are able to maintain housing and the number who
maintain contact with the treatment system.

(2) The number of persons in the program with contacts with
local law enforcement, and the extent to which local and state
incarceration of persons in the program has been reduced or
avoided.

(3) The number of persons in the program participating in
employment services programs, including competitive employment.

(4) The days of hospitalization of persons in the program that
have been reduced or avoided.

(5) Adherence to prescribed treatment by persons in the program.

(6) Other indicators of successful engagement, if any, by persons
in the program.

(7) Victimization of persons in the program.

(8) Violent behavior of persons in the program.

(9) Substance abuse by persons in the program.

(10) Type, intensity, and frequency of treatment of persons in
the program.

(11) Extent to which enforcement mechanisms are used by the
program, when applicable.

(12) Social functioning of persons in the program.

(13) Skills in independent living of persons in the program.

(14) Satisfaction with program services both by those receiving
them and by their families, when relevant.

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SECTION 1.  

Section 5346 of the Welfare and Institutions Code
is amended to read:

5346.  

(a) In any county in which services are available as
provided in Section 5348, a court may order a person who is the
subject of a petition filed pursuant to this section to obtain assisted
outpatient treatment if the court finds, by clear and convincing
evidence, that the facts stated in the verified petition filed in
accordance with this section are true and establish that all of the
requisite criteria set forth in this section are met, including, but
not limited to, each of the following:

(1) The person is 18 years of age or older.

(2) The person is suffering from a mental illness as defined in
paragraphs (2) and (3) of subdivision (b) of Section 5600.3.

(3) There has been a clinical determination that the person is
unlikely to survive safely in the community without supervision.

(4) The person has a history of lack of compliance with
treatment for his or her mental illness, in that at least one of the
following is true:

(A) The person’s mental illness has, at least twice within the
last 36 months, been a substantial factor in necessitating
hospitalization, or receipt of services in a forensic or other mental
health unit of a state correctional facility or local correctional
facility, not including any period during which the person was
hospitalized or incarcerated immediately preceding the filing of
the petition.

(B) The person’s mental illness has resulted in one or more acts
of serious and violent behavior toward himself or herself or
another, or threats, or attempts to cause serious physical harm to
himself or herself or another within the last 48 months, not
including any period in which the person was hospitalized or
incarcerated immediately preceding the filing of the petition.

(5) The person has been offered an opportunity to participate
in a treatment plan by the director of the local mental health
department, or his or her designee, provided the treatment plan
includes all of the services described in Section 5348, and the
person continues to fail to engage in treatment.

(6) The person’s condition is substantially deteriorating.

(7) Participation in the assisted outpatient treatment program
would be the least restrictive placement necessary to ensure the
person’s recovery and stability.

(8) In view of the person’s treatment history and current
behavior, the person is in need of assisted outpatient treatment in
order to prevent a relapse or deterioration that would be likely to
result in grave disability or serious harm to himself or herself, or
to others, as defined in Section 5150.

(9) It is likely that the person will benefit from assisted
outpatient treatment.

(b) (1) A petition for an order authorizing assisted outpatient
treatment may be filed by the county behavioral health director,
or his or her designee, in the superior court in the county in which
the person who is the subject of the petition is present or reasonably
believed to be present.

(2) A request may be made only by any of the following persons
to the county mental health department for the filing of a petition
to obtain an order authorizing assisted outpatient treatment:

(A) Any person 18 years of age or older with whom the person
who is the subject of the petition resides.

(B) Any person who is the parent, spouse, or sibling or child
18 years of age or older of the person who is the subject of the
petition.

(C) The director of any public or private agency, treatment
facility, charitable organization, or licensed residential care facility
providing mental health services to the person who is the subject
of the petition in whose institution the subject of the petition
resides.

(D) The director of a hospital in which the person who is the
subject of the petition is hospitalized.

(E) A licensed mental health treatment provider who is either
supervising the treatment of, or treating for a mental illness, the
person who is the subject of the petition.

(F) A peace officer, parole officer, or probation officer assigned
to supervise the person who is the subject of the petition.

(3) Upon receiving a request pursuant to paragraph (2), the
county behavioral health director shall conduct an investigation
into the appropriateness of the filing of the petition. The director
shall file the petition only if he or she determines that there is a
reasonable likelihood that all the necessary elements to sustain the
petition can be proven in a court of law by clear and convincing
evidence.

(4) The petition shall state all of the following:

(A) Each of the criteria for assisted outpatient treatment as set
forth in subdivision (a).

(B) Facts that support the petitioner’s belief that the person who
is the subject of the petition meets each criterion, provided that
the hearing on the petition shall be limited to the stated facts in
the verified petition, and the petition contains all the grounds on
which the petition is based, in order to ensure adequate notice to
the person who is the subject of the petition and his or her counsel.

(C) That the person who is the subject of the petition is present,
or is reasonably believed to be present, within the county where
the petition is filed.

(D) That the person who is the subject of the petition has the
right to be represented by counsel in all stages of the proceeding
under the petition, in accordance with subdivision (c).

(5) The petition shall be accompanied by an affidavit of a
licensed mental health treatment provider designated by the local
mental health director who shall state, if applicable, either of the
following:

(A) That the licensed mental health treatment provider has
personally examined the person who is the subject of the petition
no more than 10 days prior to the submission of the petition, the
facts and reasons why the person who is the subject of the petition
meets the criteria in subdivision (a), that the licensed mental health
treatment provider recommends assisted outpatient treatment for
the person who is the subject of the petition, and that the licensed
mental health treatment provider is willing and able to testify at
the hearing on the petition.

(B) That no more than 10 days prior to the filing of the petition,
the licensed mental health treatment provider, or his or her
designee, has made appropriate attempts to elicit the cooperation
of the person who is the subject of the petition, but has not been
successful in persuading that person to submit to an examination,
that the licensed mental health treatment provider has reason to
believe that the person who is the subject of the petition meets the
criteria for assisted outpatient treatment, and that the licensed
mental health treatment provider is willing and able to examine
the person who is the subject of the petition and testify at the
hearing on the petition.

(c) The person who is the subject of the petition shall have the
right to be represented by counsel at all stages of a proceeding
commenced under this section. If the person so elects, the court
shall immediately appoint the public defender or other attorney to
assist the person in all stages of the proceedings. The person shall
pay the cost of the legal services if he or she is able.

(d) (1) Upon receipt by the court of a petition submitted
pursuant to subdivision (b), the court shall fix the date for a hearing
at a time not later than five days from the date the petition is
received by the court, excluding Saturdays, Sundays, and holidays.
The petitioner shall promptly cause service of a copy of the
petition, together with written notice of the hearing date, to be
made personally on the person who is the subject of the petition,
and shall send a copy of the petition and notice to the county office
of patient rights, and to the current health care provider appointed
for the person who is the subject of the petition, if that provider is
known to the petitioner. Continuances shall be permitted only for
good cause shown. In granting continuances, the court shall
consider the need for further examination by a physician or the
potential need to provide expeditiously assisted outpatient
treatment. Upon the hearing date, or upon any other date or dates
to which the proceeding may be continued, the court shall hear
testimony. If it is deemed advisable by the court, and if the person
who is the subject of the petition is available and has received
notice pursuant to this section, the court may examine in or out of
court the person who is the subject of the petition who is alleged
to be in need of assisted outpatient treatment. If the person who is
the subject of the petition does not appear at the hearing, and
appropriate attempts to elicit the attendance of the person have
failed, the court may conduct the hearing in the person’s absence.
If the hearing is conducted without the person present, the court
shall set forth the factual basis for conducting the hearing without
the person’s presence.

(2) The court shall not order assisted outpatient treatment unless
an examining licensed mental health treatment provider, who has
personally examined, and has reviewed the available treatment
history of, the person who is the subject of the petition within the
time period commencing 10 days before the filing of the petition,
testifies in person at the hearing.

(3) If the person who is the subject of the petition has refused
to be examined by a licensed mental health treatment provider,
the court may request that the person consent to an examination
by a licensed mental health treatment provider appointed by the
court. If the person who is the subject of the petition does not
consent and the court finds reasonable cause to believe that the
allegations in the petition are true, the court may order any person
designated under Section 5150 to take into custody the person who
is the subject of the petition and transport him or her, or cause him
or her to be transported, to a hospital for examination by a licensed
mental health treatment provider as soon as is practicable.
Detention of the person who is the subject of the petition under
the order may not exceed 72 hours. If the examination is performed
by another licensed mental health treatment provider, the
examining licensed mental health treatment provider may consult
with the licensed mental health treatment provider whose
affirmation or affidavit accompanied the petition regarding the
issues of whether the allegations in the petition are true and whether
the person meets the criteria for assisted outpatient treatment.

(4) The person who is the subject of the petition shall have all
of the following rights:

(A) To adequate notice of the hearings to the person who is the
subject of the petition, as well as to parties designated by the person
who is the subject of the petition.

(B) To receive a copy of the court-ordered evaluation.

(C) To counsel. If the person has not retained counsel, the court
shall appoint a public defender.

(D) To be informed of his or her right to judicial review by
habeas corpus.

(E) To be present at the hearing unless he or she waives the
right to be present.

(F) To present evidence.

(G) To call witnesses on his or her behalf.

(H) To cross-examine witnesses.

(I) To appeal decisions, and to be informed of his or her right
to appeal.

(5) (A) If after hearing all relevant evidence, the court finds
that the person who is the subject of the petition does not meet the
criteria for assisted outpatient treatment, the court shall dismiss
the petition.

(B) If after hearing all relevant evidence, the court finds that
the person who is the subject of the petition meets the criteria for
assisted outpatient treatment, and there is no appropriate and
feasible less restrictive alternative, the court may order the person
who is the subject of the petition to receive assisted outpatient
treatment for an initial period not to exceed six months. In
fashioning the order, the court shall specify that the proposed
treatment is the least restrictive treatment appropriate and feasible
for the person who is the subject of the petition. The order shall
state the categories of assisted outpatient treatment, as set forth in
Section 5348, that the person who is the subject of the petition is
to receive, and the court may not order treatment that has not been
recommended by the examining licensed mental health treatment
provider and included in the written treatment plan for assisted
outpatient treatment as required by subdivision (e). If the person
has executed an advance health care directive pursuant to Chapter
2 (commencing with Section 4650) of Part 1 of Division 4.7 of
the Probate Code, any directions included in the advance health
care directive shall be considered in formulating the written
treatment plan.

(6) If the person who is the subject of a petition for an order for
assisted outpatient treatment pursuant to subparagraph (B) of
paragraph (5) refuses to participate in the assisted outpatient
treatment program, the court may order the person to meet with
the assisted outpatient treatment team designated by the director
of the assisted outpatient treatment program. The treatment team
shall attempt to gain the person’s cooperation with treatment
ordered by the court. The person may be subject to a 72-hour hold
pursuant to subdivision (f) only after the treatment team has
attempted to gain the person’s cooperation with treatment ordered
by the court, and has been unable to do so.

(e) Assisted outpatient treatment shall not be ordered unless the
licensed mental health treatment provider recommending assisted
outpatient treatment to the court has submitted to the court a written
treatment plan that includes services as set forth in Section 5348,
and the court finds, in consultation with the county behavioral
health director, or his or her designee, all of the following:

(1) That the services are available from the county, or a provider
approved by the county, for the duration of the court order.

(2) That the services have been offered to the person by the
local director of mental health, or his or her designee, and the
person has been given an opportunity to participate on a voluntary
basis, and the person has failed to engage in, or has refused,
treatment.

(3) That all of the elements of the petition required by this article
have been met.

(4) That the treatment plan will be delivered to the county
behavioral health director, or to his or her appropriate designee.

(f) If, in the clinical judgment of a licensed mental health
treatment provider, the person who is the subject of the petition
has failed or has refused to comply with the treatment ordered by
the court, and, in the clinical judgment of the licensed mental health
treatment provider, efforts were made to solicit compliance, and,
in the clinical judgment of the licensed mental health treatment
provider, the person may be in need of involuntary admission to
a hospital for evaluation, the provider may request that persons
designated under Section 5150 take into custody the person who
is the subject of the petition and transport him or her, or cause him
or her to be transported, to a hospital, to be held up to 72 hours for
examination by a licensed mental health treatment provider to
determine if the person is in need of treatment pursuant to Section
5150. Any continued involuntary retention in a hospital beyond
the initial 72-hour period shall be pursuant to Section 5150. If at
any time during the 72-hour period the person is determined not
to meet the criteria of Section 5150, and does not agree to stay in
the hospital as a voluntary patient, he or she shall be released and
any subsequent involuntary detention in a hospital shall be pursuant
to Section 5150. Failure to comply with an order of assisted
outpatient treatment alone may not be grounds for involuntary
civil commitment or a finding that the person who is the subject
of the petition is in contempt of court.

(g) If the director of the assisted outpatient treatment program
determines that the condition of the patient requires further assisted
outpatient treatment, the director shall apply to the court, prior to
the expiration of the period of the initial assisted outpatient
treatment order, for an order authorizing continued assisted
outpatient treatment for a period not to exceed 180 days from the
date of the order. The procedures for obtaining any order pursuant
to this subdivision shall be in accordance with subdivisions (a) to
(f), inclusive. The period for further involuntary outpatient
treatment authorized by any subsequent order under this
subdivision may not exceed 180 days from the date of the order.

(h) At intervals of not less than 60 days during an assisted
outpatient treatment order, the director of the outpatient treatment
program shall file an affidavit with the court that ordered the
outpatient treatment affirming that the person who is the subject
of the order continues to meet the criteria for assisted outpatient
treatment. At these times, the person who is the subject of the order
shall have the right to a hearing on whether or not he or she still
meets the criteria for assisted outpatient treatment if he or she
disagrees with the director’s affidavit. The burden of proof shall
be on the director.

(i) During each 60-day period specified in subdivision (h), if
the person who is the subject of the order believes that he or she
is being wrongfully retained in the assisted outpatient treatment
program against his or her wishes, he or she may file a petition for
a writ of habeas corpus, thus requiring the director of the assisted
outpatient treatment program to prove that the person who is the
subject of the order continues to meet the criteria for assisted
outpatient treatment.

(j) Any person ordered to undergo assisted outpatient treatment
pursuant to this article, who was not present at the hearing at which
the order was issued, may immediately petition the court for a writ
of habeas corpus. Treatment under the order for assisted outpatient
treatment may not commence until the resolution of that petition.

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