Department of State Hospitals AB 366 Hearings
Department of State Hospitals is required by Penal Code section 1370 to seek a court order authorizing the administration of involuntary antipsychotic medication to individuals confined within the institutions of the DSH who, as a result of mental disorder, are a danger to others or to themselves and incompetent to refuse medication. These hearings are called AB 366 hearings as a result of Assembly Bill 366. AB 366, statutes of 2011, chapter 654.
A court is authorized to determine if the defendant lacks capacity to make decisions regarding antipsychotic medication before seeking consent from the defendant for those medications. When, under specified conditions and in the opinion of the treating psychiatrist, involuntary administration of antipsychotic medication becomes medically necessary, that medication may be administered to the defendant for not more than 21 days, provided, however, that, within 72 hours of certifying that involuntary antipsychotic medication has become medically necessary and appropriate, an administrative law judge conducts a hearing and reviews the treating psychiatrist’s determination to administer the medication and concurs in that determination. The defendant shall be represented at the hearing by an attorney or patients’ rights advocate. The attorney or patients’ rights advocate shall be appointed to meet with the defendant no later than one day prior to the medication review hearing to review the defendant’s rights at the medication review hearing, discuss the process, answer questions or concerns regarding involuntary medication or the hearing, assist the defendant in preparing for the hearing and advocating for his or her interests at the hearing, review the panel’s final determination following the hearing, advise the defendant of his or her right to judicial review of the panel’s decision, and provide the defendant with referral information for legal advice on the subject.
If the administrative law judge concurs in the treating psychiatrist’s certification, antipsychotic medication would be authorized to continue to be administered for the 21-day certification period. If the administrative law judge disagrees with the certification, the medication would not be administered until a court so ordered. The treating psychiatrist shall file a copy of the certification and a petition with the court for issuance of an order to administer antipsychotic medication beyond the 21-day certification period, as specified, and would waive fees for the filing of the petition or other document or paper related to the petition.
The Office of Administrative Hearings (OAH) contracts with pro tem ALJs appointed by the Director of OAH to hear these cases in hospital facilities. OAH also contracts with attorneys to represent the patients in these hearings. Decisions are generally submitted to the parties in final form at the conclusion of the hearing.