Disability Rights California

Disability Rights California California s protection and advocacy system LEGISLATION & PUBLIC INFORMATION UNIT 1831 K Street Sacramento, CA 95811-4114 Tel: (916) 504-5800 TTY: (800) 719-5798 Fax: (916) 504-5807 www.disabilityrightsca.org June 21, 2013 Honorable Ed Hernandez Chair, Senate Health Committee Capitol Building Sacramento, CA 95814 RE: AB 1340 (Achadjian) OPPOSE Dear Senator Ed Hernandez: Disability Rights California, a non-profit advocacy organization mandated to advance the human and legal rights of people with disabilities, opposes AB 1340. This bill is set to be heard in the Senate Health Committee on June 26, 2013. Unfortunately, the recent amendments to the bill do not address our concerns and we continue to have significant problems with many provisions in the bill. Disability Rights California recommends that the bill become a two year bill so that stakeholders can meet and develop bill language so that both patients and employees are protected. In summary, and as described below, we have the following concerns: 1. The bill permits each hospital to adopt its own policies defining the most violent patients and processes for clinical assessment, treatment and care. We believe it is important to have state-wide standards to ensure consistency among the state hospitals and would encourage a definition of these terms in the bill. In addition, the bill does not require licensure of the enhanced treatment units until 2018 and repeals the current regulations which govern them. 2. The type of treatment to be provided in the enhanced treatment unit s is not defined. While the containment provisions are clear, the other type of treatment, frequency of treatment and other interventions is not defined.

of 8 3. The bill does not specify the processes for admission to the enhanced treatment unit. While the bill specifies who may refer the individual to them, the standards used for admission are not specified. 4. The bill does not provide adequate patient s rights including notification to the patients rights advocate when the individual is admitted to an enhanced treatment unit, the right to file a patient s rights complaint, contact either their criminal defense attorney or Disability Rights California, have access to visitors, personal property, access to out of doors and the right to consent to or refuse medication. 5. The bill contains provisions regarding criminal prosecution for assaults which likely raise constitutional problems. This Bill Existing law provides for state hospitals to give care, treatment, and education to people with psychiatric disabilities. These hospitals are under the jurisdiction of the Department of State Hospitals, which is authorized to adopt regulations regarding the conduct and management of these facilities. Existing law requires each state hospital to develop an incident reporting procedure that can be used to, at a minimum, to develop reports of patient assaults on employees and assist the hospital in identifying risks of patient assaults on employees. Existing law provides for the licensure and regulation of health facilities, including acute psychiatric hospitals, by the State Department of Public Health. A violation of these provisions is a crime. This bill would require state hospitals to establish and maintain an enhanced treatment unit as part of its facilities. The bill would authorize an acute psychiatric hospital under the jurisdiction of the department to be licensed to offer an ETU that meets specified requirements, including that each room be limited to one patient, and would authorize the department to adopt and implement policies and procedures The bill would require any assault by a patient to be immediately referred to the local district attorney. If after the referral, the local district attorney declines to prosecute, or the patient is found incompetent to stand trial or not guilty by reason of insanity, the patient would be placed in the hospital s

of 8 enhanced treatment unit until the patient is deemed safe to return to the regular hospital population. The bill would authorize a state hospital psychiatrist or psychologist to refer a patient to an ETU for temporary placement and risk assessment upon determining that the patient may pose a substantial risk of inpatient aggression. The bill would require a forensic needs assessment panel (FNAP) to conduct a placement evaluation to determine whether the patient meets the threshold standard for treatment in an enhanced treatment program (ETP). The bill would require, if the FNAP determines that the ETU placement is appropriate, that the FNAP certify the patient for 90 days of ETP placement and provide the determination in writing to the patient and the patient s advocate. The bill would also require a forensic needs assessment team (FNAT) psychologist to perform an in-depth clinical assessment and make a treatment plan upon the patient s admission to an ETP. The bill would require the FNAP to meet with specified individuals to determine whether the patient may stay in the ETP placement or return to a standard security treatment setting and provide the determination in writing to the patient s advocate. If the FNAP determines the patient is no longer appropriate for ETP placement, the FNAP may refer the patient to the 7- day step down unit, as defined, or a standard security setting in a department hospital. Analysis This bill places the emphasis on hospital employee safety. While Disability Rights California believes safety of employees is critical, a bill about enhanced treatment units ought to focus on ensuring patients are only placed in such units as a means of increasing access to appropriate treatment and services and only when no other less restrictive alternative is appropriate. The bill assumes the need for enhanced treatment units in every state hospital and the development of an enhanced treatment facility - we question the need for this much enhanced treatment. This bill allows each facility to develop its own criteria for determining who will be placed in an enhanced treatment unit, its own processes for assessment, continuum of care treatment plans, oversight, among other policies and procedures. This will lead to inconsistent policies and

of 8 procedures - making monitoring of enhanced treatment units difficult if not impossible by patient advocates and others concerned about inappropriate and restrictive treatment of patients. Further this will result in different procedures - giving rise to equal protection concerns - particularly if individuals under the same forensic commitment are treated differently in each state hospital. It is not clear what type of treatment residents will receive and as stated above, does not seem to be the point of the legislation. AB 1340 lacks clear criteria for placement of residents in an enhanced treatment unit leading to inappropriate placement or at worst placement to punish. The bill gives great deference to individual doctors and does not set out clear criteria for placement. The bill ignores the legal requirement of treatment in the least restrictive environment. The emphasis is on placement in the enhanced treatment unit, rather than emphasizing treatment. The units are exempt from licensing requirements until the year 2018 and from reporting requirements under Health and Safety Code section 1180.2 related to seclusion and containment even though patients will be secluded and contained. Statistical information about the use of enhanced treatment units will be unknown and difficult to monitor. Due process for patients is minimal to non-existent and does not occur until days after placement in an enhanced treatment unit. It is unclear to what extent patients on enhanced treatment units will have the same patients rights as other residents pursuant to California Code of Regulations Title 9 section 880 et seq. or access to an independent review of the placement. Patients are referred to criminal court process rather than provided treatment. Jails and prisons are not where patients can receive effective care and treatment. We would contend that assessment for mental health treatment is a better solution. This bill has the potential to add to the already overburdened case load of District Attorneys and court dockets with proceedings that are unnecessary and result in the individual being sent back to the state hospital. Disability Rights California has seen this happen. For example, a state hospital resident was charged with gassing a correctional officer by spitting on the officer. The resident was sent to the local county jail and stayed there for a number of months without any mental health treatment. When the resident finally went before the criminal court, the court questioned why the resident was even before the court and

of 8 sent the resident back to the state hospital. This resulted in the resident going without important treatment for a number of months. If AB 1340 passes, we expect this type of situation to occur on a regular basis. AB 1340 is silent as to whether residents placed on enhanced treatment units will have the same right to consent to or refuse medical treatment, including the use of psychotropic medication as residents on other units have. Summary For these reasons, we continue to oppose this bill and recommend that the bill become a two year bill. Attached for your information is Disability Rights California s Principles for Secure Treatment Units At State Psychiatric Hospitals. 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 K.H. Katcho Achadjian, California State Assembly CC: Honorable Members of the Senate Health Committee CC: Ross Buckley, Legislative Director, Office of Assembly Member K.H. Katcho Achadjian CC: Tanya Robinson-Taylor, Consultant, Senate Health Committee

of 8 Disability Rights California Principles for Secure Treatment Units At State Psychiatric Hospitals Adopted August 18, 2011 The state Department of Mental Health proposes to develop secure treatment units at one or more state psychiatric hospitals. The Department s purpose in creating the units is to provide a secure 24-hour living area for the treatment of physically aggressive individuals who are at risk of harming others as a result of their behavior. The Department indicates that treatment and services will be provided to individuals in a secure area of the facility where sufficient controls will exist to manage residents behavior until they are stabilized and can be returned to their home unit. Because the development of these units will occur either through legislation or regulation, Disability Rights California proposes the following mental health principles for use in its policy advocacy regarding state psychiatric hospital secure treatment units. I. Access to Treatment 1. Consistent with state and federal law, individuals with psychiatric disabilities who reside in locked state-run facilities have the right to treatment and to receive that treatment in the manner that is least restrictive of their personal liberty. 2. Any placement in a secure treatment unit must not be done absent a safety concern and must not be for the purpose of punishment; rather placement must be for purpose of increasing access to appropriate treatment and services. 3. There should be standardized criteria for placement into a secure treatment unit. Standardized placement criteria must be related to safety concerns. The resident s written treatment plan must justify the reason for placement in a secure treatment unit and the plan must specify the enhanced treatment that will address the specific behavior(s) that caused placement on the high security unit. 4. Secured treatment units must provide enhanced therapeutic staffing, allow for consistent access to, and adequate visitation by, hospital staff.

of 8 Secured treatment units must have access to an enhanced array of treatment and service options including access to at least the same array of treatment and service options provided to residents who live in non-secure treatment units. Secured treatment units must not be used to seclude patients. Rather they should be a place where individuals reside for only as long as necessary to receive treatment. The goal should be to move individuals out of secure treatment units as quickly as possible. 5. Treatment should not use aversive techniques and should not allow for the use of seclusion or restraint except as permitted by Health and Safety Code Section 1180 et seq. 6. The treatment provided in the secure treatment unit must be evidencebased and reflect clinical best practices. 7. The secure treatment unit must meet necessary licensing requirements, including ensuring that staff are appropriately licensed. The licensing category must specify staffing levels, physical environment requirements, treatment requirements and patient rights. Staff that work in secured treatment units should be screened, go through the required background check, fingerprinting, and alcohol/drug testing. II. Admission To and Review of Placement in Secure Treatment Unit 8. Prior to admission to the secure treatment unit, the residents should receive an independent assessment by a qualified mental health professional with expertise in behavior management. The assessment should include a review of the individual s records, the resident s behavioral needs, interviews with treatment team members and the resident, and a recommended approach to providing appropriate treatment and services. 9. Prior to admission, the individual s treatment team, including the resident, should review the independent assessment and other relevant information and determine if placement in the secure treatment unit is appropriate. Members of the individual s treatment team must have the requisite knowledge and expertise to determine if placement in the secure treatment unit is appropriate. 10. The treatment team, including the resident, should review the need for placement in the secure treatment unit and the need for additional or

of 8 different treatment every3 days. No more than 7 days should lapse without such a review. In no event, should treatment in the secure treatment unit continue for more than 90 days, and less, if appropriate. The resident should have the right to appeal the placement in a secure treatment unit and the appeal process must meet the due process criteria discussed below. III. Due Process and Patients Rights 11. Residents in a secure treatment unit should have the same patients rights as other residents, as specified in 9 CCR section 880 et al. These include: the right to file a patients rights complaint, contact Disability Rights California, speak with their criminal defense attorney and have access to visitors, access to personal property, access to out of doors, and the right to consent to and refuse treatment. Any denial of rights must meet the good cause criteria and rights may not be denied solely because of being in a secure treatment unit. 12. A hearing held within 48 hours to consider the resident s appeal of placement in the secure treatment unit and contesting the administration of involuntary medication should afford basic due process rights, including the right to assistance of the patients rights advocate or other counsel and an independent decision maker. 13. Residents in the secure treatment unit retain their right to consent to or refuse medical treatment, including the use of psychotropic medications. The use of psychotropic medications should be governed by the laws generally applicable to all patients and should not be based on placement in the secure treatment unit.