Bill Text: CA AB1764 | 2015-2016 | Regular Session | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: California Health Benefit Review Program: financial impacts.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Failed) 2016-11-30 - From committee without further action. [AB1764 Detail]

Download: California-2015-AB1764-Introduced.html

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BILL NUMBER: AB 1764	INTRODUCED
	BILL TEXT


INTRODUCED BY   Assembly Member Waldron

                        FEBRUARY 3, 2016

   An act to amend Section 5346 of the Welfare and Institutions Code,
relating to mental health.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 1764, as introduced, 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 provide prescribed assisted outpatient services, including a
service planning and delivery process, that are client-directed and
employ psychosocial rehabilitation and recovery principles. 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.
   This bill would make technical, nonsubstantive changes to those
provisions.
   Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  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  any such
  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)  of subdivision (d)  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.