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SB-1045 Conservatorship: serious mental illness and substance use disorders.(2017-2018)

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Date Published: 08/06/2018 02:00 PM
SB1045:v93#DOCUMENT

Amended  IN  Assembly  August 06, 2018
Amended  IN  Assembly  July 02, 2018
Amended  IN  Senate  May 25, 2018
Amended  IN  Senate  May 01, 2018
Amended  IN  Senate  April 09, 2018
Amended  IN  Senate  March 13, 2018

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Senate Bill No. 1045


Introduced by Senators Wiener and Stern
(Coauthors: Senators Allen and Bradford)
(Coauthor: Assembly Member Chen)

February 08, 2018


An act to add and repeal Article 7 (commencing with Section 5555) of Chapter 6.2 of, and to add and repeal Chapter 5 (commencing with Section 5450) of, Part 1 of Division 5 of the Welfare and Institutions Code, relating to conservatorship.


LEGISLATIVE COUNSEL'S DIGEST


SB 1045, as amended, Wiener. Conservatorship: serious mental illness and substance use disorders.
(1) Existing law establishes a procedure for the appointment of a conservator for a person who is determined to be gravely disabled as a result of a mental health disorder or an impairment by chronic alcoholism, as specified, pursuant to a petition to the superior court by an officer conducting an investigation and concurring with a recommendation of conservatorship. Existing law also establishes a procedure for the appointment of other types of conservatorship or a guardianship as ordered by the probate court.
Existing law, the Assisted Outpatient Treatment Demonstration Project Act of 2002, known as Laura’s Law, until January 1, 2022, grants each county the authority to offer certain assisted outpatient treatment services for a person who meets specified criteria, including, among others, that the person is suffering from a mental illness, that the person has a history of lack of compliance with treatment for his or her the person’s mental illness, and that the person is in need of assisted outpatient treatment, as specified. Laura’s 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.
This bill would establish a procedure, for the County of Los Angeles 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 requirements, 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. The bill would prohibit a conservatorship from being established under these provisions if a conservatorship or guardianship exists under the above-described provisions.
This bill would make 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 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 require a conservatorship initiated under these provisions to automatically terminate one year after the appointment of the conservator by the superior court, or shorter if ordered by the court, except as specified.
This bill would authorize the Judicial Council to adopt rules, forms, and standards necessary to implement these provisions.
(2) This bill would require the County of Los Angeles and the City and County of San Francisco, subject to the county’s or city and county’s election to apply these provisions, to establish a working group, comprised of representatives of local agencies and disability rights groups, to conduct an evaluation of the effectiveness of the implementation of the conservatorship provisions described above in addressing the needs of persons with serious mental illness and substance use disorders. The bill would require each working group to prepare and submit a preliminary report to the Legislature on its findings and recommendations no later than January 1, 2021, and a final report no later than January 1, 2023.
(3) This bill would repeal, on January 1, 2024, all of the provisions relating to the new conservatorship procedure and the working group, as described above in paragraphs (1) and (2).
(4) This bill would make legislative findings and declarations as to the necessity of a special statute for the County of Los Angeles and the City and County of San Francisco.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

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


SECTION 1.

 Chapter 5 (commencing with Section 5450) is added to Part 1 of Division 5 of the Welfare and Institutions Code, to read:
CHAPTER  5. Housing Conservatorship for Persons with Serious Mental Illness and Substance Use Disorders

5450.
 (a) Until January 1, 2024, this chapter shall apply only to the County of Los Angeles 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, 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, 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) 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.
(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).

5451.
 In the County of Los Angeles 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).

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.
(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 government by properly qualified professionals. This chapter does not prohibit an intensive treatment facility from also providing 72-hour evaluation and treatment.

5453.
 The purpose of conservatorship under this chapter is to provide the least restrictive and most clinically appropriate alternative needed for the protection of 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. If the court determines that the person needs to be moved from his or her the person’s current residence, the placement shall be in supportive community housing that provides wraparound services, such as onsite physical and behavioral health services, unless the court, with good cause, determines that such a placement is not sufficient for the protection of that person.

5454.
 In the County of Los Angeles and the City and County of San Francisco, subject to Section 5450, the board of supervisors of the respective county or city and county shall designate the agency or agencies to provide conservatorship investigation as set forth in this chapter, and those investigations shall comply with the requirements of Section 5354. The governing board may designate that conservatorship services be provided by the public guardian or agency providing public guardian services.

5455.
 (a) (1) The county sheriff may recommend an evaluation for conservatorship to the officer providing conservatorship investigation in the county of residence of the person if the sheriff determines that a person detained in a jail 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 county sheriff may delegate this authority to make a determination and recommendation to the health care service providers in the county jail.
(2) The director of a county mental health department or a county department of public social services may recommend an evaluation for conservatorship to the officer providing conservatorship investigation in the county of residence of the person if the director determines that a person 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.
(3) The professional person in charge of an agency providing comprehensive evaluation or a facility providing intensive treatment may recommend an evaluation for conservatorship to the officer providing conservatorship investigation in the county of residence of the person if the professional person in charge of the agency providing comprehensive evaluation or the facility providing intensive treatment determines that a person in the professional’s care 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.
(b) If the officer providing conservatorship investigation, upon conducting an evaluation for conservatorship, finds that the person meets the criteria for conservatorship and the conservatorship is the least restrictive alternative, the officer shall petition the superior court in the county of residence of the person to establish conservatorship.

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 has 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:
(a) The petition was denied or the assisted outpatient treatment was insufficient to treat the person’s mental illness.
(b) Assisted outpatient treatment would be insufficient to treat the person in the instant matter in lieu of a conservatorship.

5457.
 (a) The officer providing conservatorship investigation shall investigate all available alternatives to a conservatorship under this chapter, including a conservatorship under Division 4 (commencing with Section 1400) of the Probate Code or a conservatorship under Chapter 3 (commencing with Section 5350), and shall recommend conservatorship to the court only if no less restrictive alternatives exist and it appears that the person does not qualify for a conservatorship under Division 4 (commencing with Section 1400) of the Probate Code or a conservatorship under Chapter 3 (commencing with Section 5350). This officer shall render to the court a written report of investigation prior to the hearing. The report to the court shall be comprehensive and shall contain, in addition to the elements required under Section 5354, all relevant aspects of the person’s medical, psychological, financial, family, vocational, and social condition, and information obtained from the person’s family members, close friends, social worker, or principal therapist. The report shall also contain all available information concerning the person’s real and personal property. The facilities providing medical treatment, or intensive treatment or comprehensive evaluation, the sheriff, and the director of the county mental health department or the county department of public social services shall disclose any records or information that may facilitate the investigation. If the officer providing conservatorship investigation recommends a conservatorship, he or she the officer shall explain why all less restrictive alternatives are not sufficient, and if the officer recommends against a conservatorship, he or she the officer shall set forth all alternatives available. When confidentiality and client privacy laws permit, a copy of the report shall be transmitted to the individual who originally recommended conservatorship, and the information shared shall be compliant with state and federal laws governing protected health information. The court shall receive the report in evidence and shall read and consider the contents of the report in rendering its judgment.
(b) The report of the officer providing conservatorship investigation shall contain the officer’s recommendations concerning the powers to be granted to, and the duties to be imposed upon, the conservator, the legal disabilities to be imposed upon the conservatee, and the proper placement for the conservatee pursuant to Section 5460, and shall explain why each of these items is the least restrictive alternative. The report to the court shall also contain an agreement signed by the person or agency recommended to serve as conservator certifying that the person or agency is able and willing to serve as conservator.

5458.
 Except as otherwise provided in this chapter, the person recommended to serve as conservator shall promptly notify the officer providing conservatorship investigation whether the person recommended to serve as conservator will accept the position if appointed. If notified that the person or agency recommended will not accept the position if appointed, the officer providing conservatorship investigation shall promptly recommend another person to serve as conservator.

5459.
 (a) A person or agency shall not be designated as conservator whose interests, activities, obligations, or responsibilities are such as to compromise the person’s or agency’s ability to represent and safeguard the interests of the conservatee. The conservator has a fiduciary duty to protect and care for the conservatee.
(b) If a public guardian is appointed conservator, the public guardian’s official bond and oath as public guardian are in lieu of the conservator’s bond and oath on the grant of letters of conservatorship. A bond shall not be required of any other public officer or employee appointed to serve as conservator.

5460.
 When ordered by the court after the hearing required by this chapter, a conservator appointed pursuant to this chapter shall provide the least restrictive and most clinically appropriate placement for the conservatee, which shall be the conservatee’s residence or a community-based residential care setting in supportive community housing that provides wraparound services, such as onsite physical and behavioral health services, unless the court for good cause orders otherwise.

5461.
 (a) At any time, a conservatee or any person on the conservatee’s behalf with the consent of the conservatee or the conservatee’s counsel, may petition the court for a hearing to contest the powers granted to the conservator under Section 5460.
(b) A request for hearing pursuant to this section shall not affect the right of a conservatee to petition the court for a rehearing as to his or her the conservatee’s status as a conservatee pursuant to Section 5464. A hearing pursuant to this section shall not include trial by jury.

5462.
 (a) Conservatorship initiated pursuant to this chapter shall automatically terminate one year after the appointment of the conservator by the superior court, or shorter if ordered by the court. If upon the termination of an initial or a succeeding period of conservatorship the conservator determines that conservatorship is still required, the conservator may petition the superior court for the conservator’s reappointment as conservator for a succeeding one-year period or any shorter period.
(b) Any program in which a conservatee is placed shall release the conservatee at the conservatee’s request when the conservatorship terminates. A petition for reappointment filed by the conservator or a petition for appointment filed by a public guardian or public conservator shall be transmitted to the program at least 30 days before the automatic termination date.

5463.
 (a) The clerk of the superior court shall notify each conservator, the conservatee, the person in charge of the program in which the conservatee receives services, and the conservatee’s attorney, at least 60 days before the termination of the one-year or shorter period. Notification shall be given in person or by first-class mail.
(b) If the conservator does not petition to reestablish conservatorship at or before the termination of the one-year or shorter period, the court shall issue a decree terminating conservatorship. The decree shall be sent to the conservator and the conservatee by first-class mail.
(c) The Judicial Council may adopt rules, forms, and standards necessary to implement this chapter.

5464.
 (a) At any time, the conservatee may petition the superior court for a rehearing as to the conservatee’s status as a conservatee.
(b) If a conservatee appeals a court’s decision to establish a conservatorship, the conservatorship shall continue unless execution of judgment is stayed by the superior court or the appellate court.

5465.
 A hearing shall be held on all petitions under this chapter within 30 days of the date of the petition. If the conservatee or proposed conservatee is not represented by counsel, the court shall appoint the public defender for the conservatee or proposed conservatee within five days after the date of the petition at the county’s or city and county’s expense. A hearing or trial shall not occur under this chapter unless the conservatee or proposed conservatee is represented by counsel.

5466.
 This chapter shall remain in effect only until January 1, 2024, and as of that date is repealed.

SEC. 2.

 Article 7 (commencing with Section 5555) is added to Chapter 6.2 of Part 1 of Division 5 of the Welfare and Institutions Code, to read:
Article  7. Housing Conservatorship Working Group

5555.
 (a) The County of Los Angeles and the City and County of San Francisco, subject to Section 5450, shall establish a working group to conduct an evaluation of the effectiveness of the implementation of Chapter 5 (commencing with Section 5450) in addressing the needs of persons with serious mental illness and substance use disorders in the county or the city and county. The evaluation shall include an assessment of the number and status of persons who have been conserved under this that chapter, the effectiveness of these conservatorships in addressing the short- and long-term needs of those persons, and the impact of conservatorships established pursuant to this that chapter on existing conservatorships established pursuant to Division 4 (commencing with Section 1400) of the Probate Code or Chapter 3 (commencing with Section 5350) and on mental health programs provided by the county or the city and county. The working group shall be comprised of representatives of disability rights advocacy groups, the county mental health department, the county health department, the county social services department, law enforcement, staff from hospitals located in the county or the city and county, and, if one exists, the county department of housing and homeless services.
(b) Each working group shall prepare and submit a preliminary report and a final report to the Legislature on its findings and recommendations regarding the implementation of Chapter 5 (commencing with Section 5450). The preliminary report shall be submitted to the Legislature no later than January 1, 2021, and the final report shall be submitted to the Legislature no later than January 1, 2023, in compliance with Section 9795 of the Government Code.

5556.
 This article shall remain in effect only until January 1, 2024, and as of that date is repealed.

SEC. 3.

 The Legislature finds and declares that a special statute is necessary and that a general statute cannot be made applicable within the meaning of Section 16 of Article IV of the California Constitution because of the unique circumstances of the County of Los Angeles and the City and County of San Francisco.