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June 27, 2011

Honorable Loni Hancock
Chair, Senate Public Safety Committee
Capitol Building, Room 2031
Sacramento, CA 95814

Dear Senator Hancock:

Disability Rights California, a non-profit advocacy organization mandated to advance the human and legal rights of people with disabilities, opposes AB 366 unless amended. This bill is currently in Senate Public Safety and will be heard on July 5, 2011.

Existing law provides that if a defendant becomes mentally incompetent, a trial or judgment related to that defendant shall be suspended until he or she becomes mentally competent. Existing law establishes procedures whereby the court determines the appropriate facility where an incompetent defendant shall be delivered for treatment, and determines whether the defendant consents to the administration of antipsychotic medication, or determines whether involuntary administration of antipsychotic medication is appropriate.

This bill makes changes to existing law that would require the court to determine if the defendant lacks capacity to make decisions regarding antipsychotic medication before seeking consent from the defendant for those medications.

We suggest amendments to clean up language related to the hearing. Further a court order that details the length of time involuntary medication can be administered is needed to guide state hospitals. Enclosed is proposed language for time lines for a court order based on either capacity or dangerousness.

For these reasons, we oppose this bill unless amended. Our proposed amendments are attached. Please contact me if you have any questions about our position on this bill.

Very truly yours,

Margaret Johnson, Esq.
Advocacy Director
Disability Rights California

CC: Honorable Co-Chair and Members of the Senate Public Safety Committee
CC: Sean MacNeil, Chief of Staff, Assembly Member Allen’s Office

Proposed amendments to AB 366:

(D)(i) If the treating psychiatrist certifies that antipsychotic medication has become medically necessary and appropriate pursuant to subparagraph (C), antipsychotic medication may be administered to the defendant for not more than 21 days, provided, however, that, within 72 hours of the certification, the defendant is provided a hearing before an administrative law judge to be conducted at the facility where the defendant is receiving treatment. The treating psychiatrist shall present the case for the certification for involuntary treatment and the defendant shall be represented by a patient’s rights advocate or attorney. A patient’s rights advocate or attorney should be appointed to meet with the defendant no later than one day prior to the medication review hearing to review the defendant’s rights at the medication review hearing, assist the defendant in advocating for his or her interests at the panel hearing, review the panel’s administrative law judge’s final determination following the hearing, to advise the defendant of his or her right to judicial review of the panel’s decision, and provide the defendant with referral information for legal advice on the subject. The defendant shall also have the following rights at the medication review hearing….

(vi) The court shall render its decision on the petition and issue its order no later than three calendar days after the hearing and, in any event, no later than the expiration of the 21-day certification period.
(vii) Any court order for involuntary treatment with antipsychotic medication made pursuant to this Section shall remain in effect only until the person is one of the following:
(a)         No longer dangerous within the meaning of California Welfare and Institutions Code section 5300, but no longer than 6 months; or
(b)         (b) The individual regains capacity but no longer than 1 year.

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