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SB-40 Conservatorship: serious mental illness and substance use disorders.(2019-2020)

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Date Published: 04/25/2019 09:00 PM
SB40:v96#DOCUMENT

Amended  IN  Senate  April 25, 2019
Amended  IN  Senate  April 04, 2019
Amended  IN  Senate  March 04, 2019

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Senate Bill No. 40


Introduced by Senator Senators Wiener and Stern
(Coauthors: Senators Jones and Moorlach)

December 03, 2018


An act to amend Sections 5451, 5452, 5453, 5456, 5462, and 5463 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 person for whom conservatorship is sought to demand a court or jury trial on the issue of whether the person meets the criteria for the appointment of a conservator pursuant to these provisions. 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 28 days or less if the court is satisfied of the necessity, as specified. The bill would authorize a conservator of the person to be initially appointed pursuant to those provisions only if the person is presently incapable of caring for the person’s own health and well-being due to a serious mental illness and substance use disorder and the person has been detained 8 times for evaluation and treatment in a 12-month period pursuant to existing law authorizing the detention of mentally disordered persons who are a danger to self or others or gravely disabled, without reference to evidence of frequent detention for evaluation and treatment. The bill would also change the definition of “frequent detention for evaluation and treatment” for purposes of these conservatorship provisions 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 28 days following the 8th detention in a 12-month period, and would establish the procedures for filing the petition, including confirming that there are adequate resources to appropriately serve the person in the least restrictive manner and designating the public conservator to serve as the potential conservator.
This bill would require a court or jury trial making a determination regarding the issue of whether a person meets the criteria for appointment of a conservator to make that determination beyond a reasonable doubt. The bill would provide that the conservatorship would automatically terminate 6 months, rather than one year, after the appointment of the conservator by the superior court, or a shorter period if ordered by the court. The bill would require the conservator to file a report with the court every 60 days regarding the conservatee’s progress and engagement with treatment and, if the court is not satisfied that the conservatorship continues to be justified, the bill would authorize require the court to terminate the conservatorship or reduce the length of the conservatorship.
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 director, or the director’s designee designee, has fulfilled specified requirements and (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) reasonably determines that the person, as a matter of law, does not meet the criteria described for assisted outpatient treatment or finds by clear and convincing evidence determines that assisted outpatient treatment would be insufficient to treat the person in lieu of a conservatorship. conservatorship, as specified.
This bill would declare that it is to take effect immediately as an urgency statute.
Vote: 2/3   Appropriation: NO   Fiscal Committee: YES   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. 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) (1) 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.
(2) (A) A conservator of the person may be appointed pursuant to this chapter only if the person is presently incapable of caring for the person’s own health and well-being due to a serious mental illness and substance use disorder.
(B) For an initial appointment of a conservator, a person meets the standard in subparagraph (A) only if the person has been detained eight times for evaluation and treatment pursuant to Section 5150 in a 12-month period.
(C) To reestablish a conservatorship, the person meets the standard in subparagraph (A) only if the person’s condition at the time of the petition to reestablish the conservatorship shows that the person continues to meet the standard in subparagraph (A) based on the current behavior and condition of the person, independent of the person’s history of detentions. However, other relevant historical course evidence may be taken into account.
(D) In any challenge to an existing conservatorship, the person meets the standard in subparagraph (A) only if the person’s condition at the time of the challenge to the conservatorship shows that the person continues to meet the standard in subparagraph (A) based on the current behavior and condition of the person, independent of the person’s history of detentions. However, other relevant historical course evidence may be taken into account.
(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 is shown to be, beyond a reasonable doubt, incapable of caring for the person’s own health and well-being due to a serious mental illness and substance use disorder. 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 28 days following the eighth detention for evaluation and treatment pursuant to Section 5150 in a 12-month period, provided that the county health director, or the county health director’s designee, has done all of the following:
(1) Before the eighth detention of the person in the 12-month period, all of the following:
(A) Made a finding pursuant to Section 5456.
(B) Confirmed that there are adequate resources to appropriately serve the person in the least restrictive manner.
(C) Designated the public conservator to serve as the potential conservator, and instructed that person to begin preparing for the investigation required pursuant to this chapter.
(2) On the seventh detention of the person in the 12-month period, provided the person with a written notice containing detailed information regarding the possibility that the person may be conserved pursuant to this chapter if they are detained once more in the 12-month period.
(3) Before the seventh detention of the person in the 12-month period, provided the person with the opportunity to engage in voluntary treatment appropriate for their mental illness and substance use disorders. This opportunity shall be provided at the earliest time possible to prevent the worsening of the person’s condition, and there shall be documented attempts to elicit the cooperation of the person and that these attempts have not been successful.
(h) For the 28 days following the eighth detention, the county may establish a temporary conservatorship pursuant to Section 5465.5.

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 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.

SEC. 3.

 Section 5453 of the Welfare and Institutions Code is amended to read:

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. If the court determines that the person needs to be moved from 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.

SEC. 4.

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

5456.
 (a) 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, or the director’s designee, has met fulfilled all of the requirements specified in Section 5451 and that either of the following conditions: conditions has been met:
(1) 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 the petition was denied or the assisted outpatient treatment was insufficient to treat the person’s mental illness.
(2) The behavioral health director, or the director’s designee, reasonably determines that the person, as a matter of law, does not meet the criteria described for assisted outpatient treatment pursuant to Article 9 (commencing with Section 5345) of Chapter 2, or finds by clear and convincing evidence determines that assisted outpatient treatment would be insufficient to treat the person in the instant matter in lieu of a conservatorship. The behavioral health director, or the director’s designee, shall state specific facts to support the determination. The court shall make a finding by clear and convincing evidence as to whether this condition is met.
(b) The basis for the findings described in subdivision (a) shall be documented and included with the petition for a conservatorship.

SEC. 5.

 Section 5462 of the Welfare and Institutions Code is amended to read:

5462.
 (a) Except as provided in subdivision (c), a conservatorship initiated pursuant to this chapter shall automatically terminate six months after the appointment of the conservator by the superior court, or after a shorter period 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 six-month 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.
(c) Every 60 days, a conservator shall file a report with the court regarding the conservatee’s progress and engagement with treatment.
(1) The report shall set forth the reasons demonstrating the following:
(A) Continuing the conservatorship.
(B) The treatment plan for the following 60 days.
(C) That the treatment plan is the least restrictive alternative.
(2) If the court is not satisfied that the conservatorship continues to be justified, the court may shall terminate the conservatorship or reduce the length of the conservatorship.

SEC. 6.

 Section 5463 of the Welfare and Institutions Code is amended to read:

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 six-month 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 six-month 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.

SEC. 7.

 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 28 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 28 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. 8.

 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.