Amended  IN  Senate  March 04, 2019

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Senate Bill No. 40

Introduced by Senator Wiener

December 03, 2018

An act to amend Section 5450 of the Welfare and Institutions Code, relating to mental health. Sections 5451, 5452, and 5456 of, and to add Section 5465.5 to, the Welfare and Institutions Code, relating to mental health, and declaring the urgency thereof, to take effect immediately.


LEGISLATIVE COUNSEL'S DIGEST


SB 40, as amended, Wiener. Conservatorship: serious mental illness and substance use disorders.
Existing law establishes a procedure, until January 1, 2024, for the County of Los Angeles, the County of San Diego, and the City and County of San Francisco, if the board of supervisors authorizes the appointment of a conservator for a person who is incapable of caring for the person’s own health and well-being due to a serious mental illness and substance use disorder, as evidenced by frequent detention for evaluation and treatment, which is 8 or more detentions for evaluation and treatment in the preceding 12 months. Existing law automatically terminates a conservatorship initiated pursuant to these provisions one year after the appointment of the conservator unless the court specifies a shorter period. Existing law authorizes the Judicial Council to adopt rules, forms, and standards necessary to implement these provisions.
This bill would additionally authorize the court to establish a temporary conservatorship for a period of 30 days or less if the court is satisfied of the necessity, as specified. The bill would define “serious mental illness and substance use disorder” for the purposes of those provisions and change the definition of “frequent detention for evaluation and treatment” to mean 8 or more detentions in a 12-month period. The bill would require that a petition seeking to establish the above-described conservatorship be filed with the court no later than 180 days following the 8th detention in a 12-month period.
Existing law makes the establishment of a conservatorship pursuant to these provisions subject to, among other things, a finding by the court that the behavioral health director of the county or the city and county has previously attempted by petition to obtain a court order authorizing assisted outpatient treatment pursuant to the Assisted Outpatient Treatment Demonstration Project Act of 2002, known as Laura’s Law, for the person for whom conservatorship is sought, that the petition was denied or the assisted outpatient treatment was insufficient to treat the person’s mental illness, and that assisted outpatient treatment would be insufficient to treat the person in the instant matter in lieu of a conservatorship.
This bill would instead make the establishment of the above-described conservatorship subject to a finding by the court that the behavioral health director or the director’s designee (1) has previously attempted to obtain the above-described court order and that the petition was denied or the assisted outpatient treatment was insufficient to treat the person’s mental illness, or (2) has evaluated whether that treatment is appropriate for the person and concluded that the person is not eligible for that treatment or that the treatment would be insufficient to treat the person in lieu of a conservatorship.
This bill would declare that it is to take effect immediately as an urgency statute.

Existing law establishes a procedure for the appointment of a conservator for a person who is incapable of caring for the person’s own health and well-being due to a serious mental illness and substance use disorder, as specified, for the purpose of providing the least restrictive and most clinically appropriate alternative needed for the protection of the person. Existing law authorizes that conservatorship procedure only for the County of Los Angeles, the County of San Diego, and the City and County of San Francisco, if the board of supervisors of the respective county or city and county authorizes the application of these provisions subject to specified findings and requirements, including that certain county departments develop a plan to implement these provisions, as specified, and present the plan and available resources for the implementation before the county board of supervisors.

This bill would make a technical, nonsubstantive change to those provisions.

Vote: MAJORITY2/3   Appropriation: NO   Fiscal Committee: NOYES   Local Program: NO  

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


SECTION 1.

 Section 5451 of the Welfare and Institutions Code is amended to read:

5451.
 In the County of Los Angeles, the County of San Diego, and the City and County of San Francisco, subject to Section 5450, a conservator of the person may be appointed for a person who is incapable of caring for the person’s own health and well-being due to a serious mental illness and substance use disorder, as evidenced by frequent detention for evaluation and treatment pursuant to Section 5150. The procedure for establishing, administering, and terminating a conservatorship under this chapter shall be the same as provided for in Division 4 (commencing with Section 1400) of the Probate Code, except as follows:
(a) The court may appoint the public conservator in the county of residence of the person to be conserved and the person to serve as conservator if the person requesting the appointment establishes, and the court makes an express finding, that it is necessary for the protection of the proposed conservatee and the granting of the conservatorship is the least restrictive alternative needed for the protection of the conservatee.
(b) (1) The person for whom conservatorship is sought shall have the right to demand a court or jury trial on the issue of whether the person meets the criteria for the appointment of a conservator of the person under this chapter. Demand for court or jury trial shall be made within five days following the hearing on the conservatorship petition. If the proposed conservatee demands a court or jury trial before the date of the hearing as provided for in Section 5465, the demand shall constitute a waiver of that hearing.
(2) Court or jury trial shall commence within 10 days of the date of the demand, except that the court shall continue the trial date for a period not to exceed 15 days upon the request of counsel for the proposed conservatee.
(3) This right shall also apply in subsequent proceedings to reestablish a conservatorship.
(c) Conservatorship investigation shall be conducted pursuant to Chapter 3 (commencing with Section 5350) and shall not be subject to Section 1826 of, or Chapter 2 (commencing with Section 1850) of Part 3 of Division 4 of, the Probate Code.
(d) Notice of proceedings under this chapter shall be given to a guardian or conservator of the person or estate of the proposed conservatee appointed under the Probate Code and as otherwise provided in Section 5350.2.
(e) As otherwise provided for in this chapter.
(f) A conservatorship pursuant to this chapter shall not be established if a conservatorship or guardianship exists under Division 4 (commencing with Section 1400) of the Probate Code or under Chapter 3 (commencing with Section 5350).
(g) A petition seeking to establish a conservatorship pursuant to this chapter shall be filed with the court no later than 180 days following the eighth detention for evaluation and treatment pursuant to Section 5150 in a 12-month period.

SEC. 2.

 Section 5452 of the Welfare and Institutions Code is amended to read:

5452.
 For purposes of this chapter, the following definitions apply:
(a) “Frequent detention for evaluation and treatment” means eight or more detentions for evaluation and treatment in the preceding 12 months. a 12-month period.
(b) “Evaluation” consists of multidisciplinary professional analyses of an individual’s medical, psychological, educational, social, financial, and legal conditions as they may appear to constitute a problem. Persons providing evaluation services shall be properly qualified professionals and may be full-time employees of an agency providing face-to-face, which includes telehealth, evaluation services or may be part-time employees or may be employed on a contractual basis.
(c) “Intensive treatment” consists of such hospital and other services as may be indicated. Intensive treatment shall be provided by properly qualified professionals and carried out in facilities qualifying for reimbursement under the Medi-Cal program as set forth in Chapter 7 (commencing with Section 14000) of Part 3 of Division 9, or under the federal Medicare Program as set forth in Title XVIII (42 U.S.C. Sec. 1395 et seq.) of the federal Social Security Act and regulations thereunder. Intensive treatment may be provided in hospitals of the United States government by properly qualified professionals. This chapter does not prohibit an intensive treatment facility from also providing 72-hour evaluation and treatment.
(d) “Serious mental illness and substance use disorder” means that the individual exhibits all of the following criteria:
(1) A mental disorder that is severe in degree and persistent in duration, including, but not limited to, schizophrenia, bipolar disorder, post-traumatic stress disorder, major affective disorders, and other severely disabling mental disorders, as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM), but that is not a developmental disorder or acquired traumatic brain injury, as defined in Section 4354.
(2) A substance use disorder, as identified in the DSM.
(3) The mental disorder or substance use disorder causes functional impairment that substantially interferes with the primary activities of daily living and results in an inability to maintain stable adjustment and independent functioning without treatment, support, and rehabilitation for a long or indefinite period of time.
(4) As a result of the functional impairment caused by the mental disorder or substance use disorder, the individual is likely to become so disabled as to require public assistance, services, or entitlements.

SEC. 3.

 Section 5456 of the Welfare and Institutions Code is amended to read:

5456.
 The establishment of a conservatorship pursuant to this chapter is subject to a finding by the court that the behavioral health director of the county or the city and county county, or the director’s designee, has previously met either of the following conditions:
(a) The behavioral health director, or the director’s designee, previously attempted by petition to obtain a court order authorizing assisted outpatient treatment pursuant to Article 9 (commencing with Section 5345) of Chapter 2 for the person for whom conservatorship is sought, and that both of the following conditions exist: the petition was denied or the assisted outpatient treatment was insufficient to treat the person’s mental illness.

(a)The petition was denied or the assisted outpatient treatment was insufficient to treat the person’s mental illness.

(b)Assisted outpatient

(b) The behavioral health director, or the director’s designee, evaluated whether assisted outpatient treatment is appropriate for the person for whom conservatorship is sought, and concluded that the person is not eligible for assisted outpatient treatment, or that assisted outpatient treatment would be insufficient to treat the person in the instant matter in lieu of a conservatorship.

SEC. 4.

 Section 5465.5 is added to the Welfare and Institutions Code, to read:

5465.5.
 (a) The court may establish a temporary conservatorship for a period not to exceed 30 days and appoint a temporary conservator on the basis of the comprehensive report of the officer providing conservatorship investigation filed pursuant to Section 5457, or on the basis of an affidavit of the professional person who recommended conservatorship stating the reasons for that person’s recommendation, if the court is satisfied that the comprehensive report or affidavit shows the necessity for a temporary conservatorship.
(b) Except as provided in this section, all temporary conservatorships shall expire automatically at the conclusion of 30 days, unless prior to that date the court conducts a hearing on the issue of whether the proposed conservatee is incapable of caring for the proposed conservatee’s own health and well-being due to a serious mental illness and substance use disorder.
(c) If the proposed conservatee demands a court or jury trial on the issue of whether the proposed conservatee is incapable of caring for their own health and well-being due to a serious mental illness and substance use disorder, the court may extend the temporary conservatorship until the date of the disposition of the issue by the court or jury trial. However, the extension shall not exceed a period of six months.

SEC. 5.

 This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the California Constitution and shall go into immediate effect. The facts constituting the necessity are:
In order to effectively implement Senate Bill 1045 of the 2017–18 Regular Session (Chapter 845 of the Statutes of 2018), which established a procedure, in the County of Los Angeles, the County of San Diego, and the City and County of San Francisco, for the appointment of a conservator for a person who is incapable of caring for the person’s own health and well-being due to a serious mental illness and substance use disorder, it is necessary that this act take effect immediately.
SECTION 1.Section 5450 of the Welfare and Institutions Code is amended to read:
5450.

(a)Until January 1, 2024, this chapter shall apply only to the County of Los Angeles, the County of San Diego, and the City and County of San Francisco if the board of supervisors of the respective county or city and county, by resolution or through the county budget process, authorizes the application of this chapter and makes a finding that no voluntary mental health program serving adults, no children’s mental health program, and no services or supports provided in conservatorships established pursuant to Division 4 (commencing with Section 1400) of the Probate Code or conservatorships established pursuant to Chapter 3 (commencing with Section 5350), including availability of conservators, may be reduced as a result of the implementation of this chapter.

(b)(1)Before the county board of supervisors may authorize the application of this chapter, the county mental health department, the county welfare department, and, if one exists, the county department of housing and homeless services shall do both of the following:

(A)Develop a plan to implement this chapter in consultation with representatives of disability rights advocacy groups, a provider of permanent supportive housing services, the county health department, law enforcement, labor unions, and staff from hospitals located in the county or the city and county.

(B)Present before the county board of supervisors on the plan and available resources for the implementation of this chapter.

(2)In order to approve authorization of the application of this chapter, the county board of supervisors shall determine, after a public hearing, based on materials presented, that all of the following services are available in, at a minimum, sufficient quantity, resources, and funding levels to serve the identified population that the county board of supervisors intends to serve, within the county or city and county for utilization in connection with the application of this chapter:

(A)Supportive community housing that provides wraparound services, with adequate beds available.

(B)Public conservators trained on the specifics of how to assess and evaluate individuals for the new form of conservatorship described in this chapter.

(C)Outpatient mental health counseling.

(D)Coordination and access to medications.

(E)Psychiatric and psychological services.

(F)Substance use disorder services.

(G)Vocational rehabilitation.

(H)Veterans’ services.

(I)Family support and consultation services.

(J)A service planning and delivery process that includes all of the following:

(i)Plans for services that contain evaluation strategies, which shall consider cultural, linguistic, gender, sexual orientation, 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 or cultural differences.

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

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

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

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

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

(vii)Provision for services reflecting special needs of women from diverse cultural and socioeconomic backgrounds.

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

(ix)Provision for services reflecting special needs of lesbian, gay, bisexual, and transgender (LGBT) individuals.

(K)The individual personal services plan ensures that a person subject to conservatorship pursuant to this chapter receives age-appropriate, gender-appropriate, disability-appropriate, and culturally appropriate services, to the extent feasible and when appropriate, that are designed to enable those persons to do all of the following:

(i)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.

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

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

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

(v)Obtain an adequate income.

(vi)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.

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

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

(3)The county or the city and county shall not seek to conserve any individual pursuant to this chapter unless there is funding and available resources to provide all of the services set forth in paragraph (2).