Bill Text: CA SB1172 | 2011-2012 | Regular Session | Amended

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

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Bill Title: Sexual orientation change efforts.

Spectrum: Partisan Bill (Democrat 2-0)

Status: (Passed) 2012-09-30 - Chaptered by Secretary of State. Chapter 835, Statutes of 2012. [SB1172 Detail]

Download: California-2011-SB1172-Amended.html

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BILL NUMBER: SB 1172	AMENDED
	BILL TEXT

	AMENDED IN SENATE  APRIL 9, 2012

INTRODUCED BY   Senator Lieu

                        FEBRUARY 22, 2012

    An act to amend Section 1733 of the Insurance Code,
relating to licensing.   An act to add Article 15
(commencing with Section 865) to Chapter 1 of Division 2 of the
Business and Professions Code, relating to healing arts. 


	LEGISLATIVE COUNSEL'S DIGEST


   SB 1172, as amended, Lieu.  Insurance licensees: fiduciary
duties.   Sexual orientation change efforts.  

   Existing law provides for licensing and regulation of various
professions in the healing arts, including physicians and surgeons,
psychologists, psychiatric technicians, marriage and family
therapists, educational psychologists, clinical social workers, and
licensed professional clinical counselors.  
   This bill would prohibit psychotherapists, as defined, from
performing sexual orientation change efforts, as defined, in the
absence of informed consent of the patient, which is to be provided
on a form developed by the State Department of Mental Health.
Informed consent would not be effective for patients under 18 years
of age. The bill would require the department to prepare and
disseminate an informational brochure on sexual orientation change
efforts. The bill would require a psychotherapist who performs sexual
orientation change efforts to report certain data to the department,
which would be required to summarize this information in an annual
report. The bill would provide for a cause of action against
psychotherapists by patients or former patients in specified cases.
 
   Existing law requires that certain licensees, including, but not
limited to, those licensed as surplus line brokers, receiving funds
as premium or return premium on or under any policy of insurance or
undertaking of bail, receive and hold those funds in his or her
fiduciary capacity.  
   This bill would make nonsubstantive changes to those provisions.

   Vote: majority. Appropriation: no. Fiscal committee:  no
  yes  . State-mandated local program: no.


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

   SECTION 1.    Article 15 (commencing with Section
865) is added to Chapter 1 of Division 2 of the   Business
and Professions Code   , to read:  

      Article 15.  Sexual Orientation Change Efforts


   865.  For the purposes of this article, the following terms shall
have the following meanings:
   (a) "Department" means the State Department of Mental Health.
   (b) "Informed consent" means consent that is provided in writing
by a patient to a psychotherapist with whom the patient has a
therapeutic relationship. The informed consent must explicitly
manifest the patient's voluntary informed consent to sexual
orientation change efforts as set forth in Section 865.1.
   (c) "Psychotherapist" means a physician and surgeon specializing
in the practice of psychiatry, a psychologist, a psychological
assistant, a psychiatric technician, a marriage and family therapist,
a registered marriage and family therapist, intern, or trainee, an
educational psychologist, a licensed clinical social worker, an
associate clinical social worker, a licensed professional clinical
counselor, or a registered clinical counselor, intern, or trainee.
   (d) "Psychotherapy" means the professional assessment, evaluation,
treatment, or counseling of a mental or emotional illness, symptom,
or condition by a psychotherapist.
   (e) "Sexual orientation change efforts" means psychotherapy aimed
at altering the sexual or romantic desires, attractions, or conduct
of a person toward people of the same sex so that the desire,
attraction, or conduct is eliminated or reduced or might instead be
directed toward people of a different sex. It does not include
psychotherapy aimed at altering sexual desires, attractions, or
conduct toward minors or relatives or regarding sexual activity with
another person without that person's consent.
   (f) "Therapeutic deception" means a representation by a
psychotherapist that sexual orientation change efforts are endorsed
by leading psychological associations or that they can or will reduce
or eliminate a person's sexual or romantic desires, attractions, or
conduct toward another person of the same sex.
   (g) "Therapeutic relationship" means the relationship that exists
during the time the patient receives psychotherapy.
   (h) "Leading psychological associations" means the American
Psychiatric Association, the American Psychological Association, the
American Counseling Association, the National Association of Social
Workers, and the American Pediatrics Association.
   865.1.  (a) Sexual orientation change efforts shall not be engaged
in absent informed consent to therapy by the patient as prescribed
in subdivision (b).
   (b) To obtain informed consent, a treating psychotherapist shall
provide a patient with the following information prior to engaging in
sexual orientation change efforts, on a form prescribed by the
department:
   (1) The reason or reasons for recommending the use of sexual
orientation change efforts, including, but not limited to, the nature
and seriousness of the patient's mental illness, disorder, or
condition leading to the recommendation.
   (2) The nature of the procedures to be used in the sexual
orientation change efforts and the anticipated frequency and duration
of the sexual orientation change efforts.
   (3) The probable degree and duration, either temporary or
permanent, of improvement to the patient's mental illness, disorder,
or condition expected as a result of sexual orientation change
efforts.
   (4) The nature, degree, duration, and the probability of the risks
and side effects that may be attributable to sexual orientation
change efforts.
   (5) The views of leading psychological associations on sexual
orientation change efforts.
   (6) A list of all reasonable alternative treatments and why the
psychotherapist is recommending sexual orientation change efforts
over these alternative treatments.
   (c) At the time a psychotherapist provides the patient with the
informed consent form, as prescribed in subdivision (b), the patient
shall also receive a copy of the informational brochure disseminated
by the department as described in subdivision (c) of Section 865.2.
   865.2.  (a) (1) Under no circumstances shall a patient under 18
years of age undergo sexual orientation change efforts, regardless of
the willingness of a patient's parent, guardian, conservator, or
other person to authorize such efforts.
   (2) The right to refuse sexual orientation change efforts is not
waived by giving informed consent and that consent may be withdrawn
at any time prior to, during, or between sessions of sexual
orientation change efforts.
   (3) Any act of duress or coercion by any person or facility shall
invalidate the patient's consent to sexual orientation change
efforts.
   (b) (1) A psychotherapist who performs sexual orientation change
efforts shall file a report with the department setting forth the
data required by paragraph (2). An institution in which sexual
orientation change efforts are performed shall be the reporting
entity for all sexual orientation change efforts treatments performed
at that institution.
   (2) The following detailed information for each reporting period
shall be made on forms prescribed by the department within 30 days
after January 1 and July 1 of each year:
   (A) The total number of patients who received sexual orientation
change efforts.
   (B) Information regarding each patient who received or continued
to receive sexual orientation change efforts, including all of the
following:
   (i) Diagnosis.
   (ii) Duration of sexual orientation change efforts and frequency
of therapeutic visits.
   (iii) Age, sex, and ethnicity of the patient.
   (iv) Whether the patient was capable of giving his or her written
informed consent.
   (v) Whether any complications resulted from sexual orientation
change efforts, such as insomnia, anxiety, depression, loss of
appetite, loss of employment, suicidality, or death.
   (vi) Whether any preexisting conditions related to the patient's
mental or emotional health were exacerbated or otherwise affected by
the sexual orientation change efforts.
   (vii) The method of payment for the sexual orientation change
efforts and, if applicable, the name of the insurance company making
those payments.
   (viii) Any other information required by the department by
regulation, except as provided in paragraph (3).
   (3) The name of the patient receiving sexual orientation change
efforts shall remain confidential information. No state agency,
employee, or agent shall require release of the identity of any
person subjected to sexual orientation change efforts. The forms
prescribed by paragraph (2) shall not require any information that
would disclose, directly or indirectly, the identity of the patient.
   (4) The department shall prepare and publish an annual written
report summarizing the information received under this section. The
report shall not contain any information that identifies or tends to
identify any facility, psychotherapist, or patient. The report shall
be made available to members of the public electronically and in
writing upon request.
   (c) (1) The department shall prepare and disseminate an
informational brochure for sexual orientation change efforts to
psychotherapists for distribution to patients contemplating being
subjected to sexual orientation change efforts. This brochure shall
be developed by the department in consultation with members of the
Medical Board of California, Board of Psychology, and the Board of
Behavioral Sciences. The brochure shall be provided to each
individual contacting the Medical Board of California and affiliated
health boards, the Board of Psychology, or the Board of Behavioral
Sciences regarding a complaint involving sexual orientation change
efforts.
   (2) The brochure shall include, but is not limited to, the
following:
   (A) A legal and an informal definition of sexual orientation
change efforts.
   (B) A brief description of the scientific findings regarding the
ineffectiveness of sexual orientation change efforts as reported by
the American Psychiatric Association.
   (C) A brief summary of the stated positions of the leading
psychological associations with respect to sexual orientation change
efforts.
   (D) A right to legal redress to be set forth as follows:

   "If you have been subjected to efforts to change your sexual
orientation without providing written informed consent, you may want
to consult an attorney about bringing legal action against your
psychotherapist."

   (E) A description of services available for support of patients
with issues relating to their sexual orientation or gender identity.
   865.3.  (a) A cause of action may be brought against a
psychotherapist by a patient or former patient, either during the
duration of the sexual orientation change efforts or within two years
following termination of the therapeutic relationship, for injury
for harm caused by sexual orientation change efforts, if the sexual
orientation change efforts occurred to a patient who was under 18
years of age at any point during the use of sexual orientation change
efforts, or, if the patient is 18 years of age or older, by means of
therapeutic deception or without obtaining written informed consent.
The patient or former patient may recover damages and attorney's
fees.
   (b) Nothing in this article precludes a patient's right to bring a
civil action against a psychotherapist arising from other legal
claims.  
  SECTION 1.    Section 1733 of the Insurance Code
is amended to read:
   1733.  All funds received by a person acting as a licensee under
this chapter, Chapter 5A (commencing with Section 1759), Chapter 6
(commencing with Section 1760), or Chapter 7 (commencing with Section
1800), as premium or return premium on or under any policy of
insurance or undertaking of bail, are received and held by that
person in his or her fiduciary capacity. A person who diverts or
appropriates the fiduciary funds to his or her own use is guilty of
theft and punishable for theft as provided by law. A premium that a
premium financer agrees to advance pursuant to the terms of a premium
finance agreement shall constitute fiduciary funds as defined in
this section only if actually received by a person licensed in one or
more of the capacities specified in this section.