April 5, 2024
The Honorable Ash Kalra
Chair, Judiciary Committee
California State Assembly
1020 N Street, Suite 104
Sacramento, CA 95814
RE: AB 2352 (IRWIN) as Amended March 21, 2024 – OPPOSE UNLESS AMENDED
Dear Chair Kalra:
Disability Rights California (DRC) is California’s federally mandated protection and advocacy agency, working to advance and protect the rights of Californians with disabilities. Mental Health America of California (MHAC) is a peer-run organization leading the state in behavioral health public policy and advocacy since 1957. MHAC works to encourage hope, wellness and recovery from mental health and substance use disorders through voluntary services, delivered locally with compassion and respect for everyone’s dignity and autonomy.
We reluctantly submit this letter in opposition to AB 2352 (Irwin). We support psychiatric advance directives (PADs) and proudly sponsored AB 1029 (Pellerin), Chapter 171, Statutes of 2023, to promote their use. We understand from the author’s office that AB 2352 is intended to further the work of a seven-county Innovation Project sponsored by the Mental Health Services Oversight and Accountability Commission. DRC has been working with the project team and along with MHAC we suggest the bill be substantially amended to focus exclusively on what we understand to be the bill’s intent: create a legal framework to facilitate the testing and use of a digital platform which, in turn, will hopefully further promote the use of PADs.
BACKGROUND ON ADVANCE HEALTH CARE DIRECTIVES AND PADS
Many people are familiar with an Advance Health Care Directive, (AHCD) a legal document executed by a person in anticipation of medical decisions that may need to be made when the person lacks capacity to make those decisions. One example is a person facing surgery who wants to be sure their loved ones and health care providers know their treatment preferences if something unexpected occurs. An AHCD often, but not always, includes designation of an agent with power of attorney to make decisions.
A PAD is a type of AHCD. It may be a standalone document, or it may be included as part of an overall AHCD. A PAD specifies a person’s preferences regarding mental health treatment in the event of a future mental health crisis. This may include information about medications known to be effective, an individual’s preferences for emergency care, and more. PADs are demonstrated to reduce the need for coercive interventions during mental health crises and increase participants’ feelings of autonomy, self-determination and empowerment.1
PADs can also improve mental health outcomes by facilitating conversations between mental health providers and an individual in mental health crisis. When psychological distress results in a mental health crisis, a person may be subjected to involuntary treatment, which can be traumatizing and demoralizing, and ultimately less effective than voluntary care, in part because treating providers lack knowledge about which services or treatments are likely to be most effective for an individual.
AB 2352 GOES FAR BEYOND CREATING THE NECESSARY FRAMEWORK FOR TESTING PADS
In numerous instances, AB 2352 goes far beyond what is needed to test a digital platform for PADs. In so doing, the bill pushes mental health policy away from the original intent of PADs.
AB 2352 increases the use of PADs in CARE Court. These sections should all be stricken from the bill.
We opposed CARE Court when it was enacted two years ago.2 Among the reasons we sponsored AB 1029 last year was the surprise inclusion of PADs in CARE Court. Welfare and Institutions Code Section 5971 specifies the “graduation plan” in CARE Court may include a PAD. Because we believe CARE Court to be coercive, and because coercion has no place in a PAD, AB 1029 made sure PADs would fall under the Health Care Decisions law, which governs AHCDs. AB 2352 authorizes a CARE plan to include a PAD. The CARE plan is created early in a respondent’s CARE Court journey. Whether or not “graduation” is coercive, surely a CARE plan imposed on a respondent meets that definition. In addition, if a PAD is part of a CARE plan, how is the respondent’s right to privacy protected? Further, the bill contemplates the use of a health care advocate for PADs but with respect to CARE Court, appears to require (but at a minimum permits) that same health care advocate to also serve as the individual’s CARE supporter. This expansion of the health care advocate’s duties into CARE Court dramatically changes the duties of the advocate and risks changing the advocate’s role from neutral to coercive.
AB 2352 attempts to update California law post Proposition 1 by replacing “mental health” with “behavioral health” in numerous instances. These changes have unintended consequences. They should be removed from AB 2352 and considered in a separate bill that carefully and thoughtfully updates the law.
Proposition 1, passed by voters on March 5, 2024, renames the Mental Health Services Act (MHSA) as the Behavioral Health Services Act (BHSA). Prop 1 also renames the Mental Health Services Oversight and Accountability Commission (MHSOAC) as the Behavioral Health Services Oversight and Accountability Commission (BHSOAC). Beyond these changes, there is no wholesale substitution of “behavioral health” for “mental health” in the many sections of law amended by Proposition 1 containing the term “mental health.”
“Behavioral Health” is a broad term with many different definitions, but it generally refers to substance use disorders and mental health disorders of any severity. Some state laws and programs apply to mental health, some apply to mental health with co-occurring substance use disorders, and some apply to standalone “mild to moderate” substance use disorder or “severe” substance use disorder. The term “behavioral health” is not interchangeable with the term “mental health.” By replacing “mental health” with “behavioral health,” throughout statute, even beyond those code sections amended by Proposition 1, AB 2352 makes expansive changes to current law. At best these are unintended consequences, but they are problematic all the same. Below are some examples.
• AB 2352 substantially expands Assisted Outpatient Treatment
By changing “mental health” to “behavioral health” in the state’s Assisted Outpatient Treatment (AOT) law, the bill applies AOT to any person “suffering from a behavioral health illness.” AOT does not currently apply to people with a standalone SUD; any SUD must be co-occurring with mental illness. By applying AOT to standalone SUD, this proposed change opens the door to involuntary treatment for large numbers of Californians not currently eligible for AOT. Furthermore, this same section of the bill refers to Health & Safety Code Section 5600.3(b)(2) and (3) for the definition of “behavioral health illness,” but “behavioral health illness” is not defined in those paragraphs. This raises serious concerns, because if “behavioral health illness” is later defined within the Health &Safety Code, this definition would likely impact a vast number of other code sections in untold ways. Changes to current law this significant deserve careful consideration and public debate; they should not be dropped into a piece of legislation that may not receive a lot of scrutiny because it is viewed as simple code cleanup.
Along those lines, in this same section, we have concerns that by replacing “mental health professional” with “behavioral health professional”, we inadvertently allow licensed SUD counselors to refer individuals for AOT or determine whether an individual has capacity to consent to psychotropic medication. This should not be permitted.
•AB 2352 expands the LPS “gravely disabled” definition beyond what was enacted last year in SB 43.
The Legislature enacted SB 43 (Eggman), Chapter 637, Statutes of 2023 to, among other things, expand the definition of “gravely disabled” under the Lanterman Petris Short Act (LPS) to include individuals with “severe” SUD. Prior to SB 43, a person with SUD would be considered gravely disabled only in the presence of a co-occurring mental health disorder. The changes proposed by AB 2352, in replacing “mental health” with “behavioral health,” have the effect of expanding SB 43’s expansion to cover ANY substance use disorder, not just a SEVERE substance use disorder.
To add to the confusion of replacing “mental health” with “behavioral health,” section 36 (CARE Court) defines a licensed behavioral health professional as a licensed mental health professional. This makes no sense, and we see no purpose in changing the term “licensed mental health professional” anywhere in code.
Incorrect and confusing definitions and cross-references should be fixed or deleted.
There are many instances in the bill where the use of specific terms would add confusion to the law. This occurs most notably with the creation of a “health care advocate” for PADs. For example, the bill’s two definitions of “PAD” include a “health care advocate,” which appears to be optional in one instance and required in the other. In Section 10 of the bill, amendments to Probate Code Section 4674 require a signature by an ASSIGNED advocate and in Section 6 of the bill, amendments to Probate Code Section 4672 permit the NOMINATION of an advocate.
There are definitions for PAD and “health care advocate” in Section 42 of the bill with proposed amendments to Welfare and Institutions Code Section 21001. Other sections in the bill cross-reference Section 21001, which was added by AB 1663 (Maienschein), Chapter 894, Statutes of 2022. DRC sponsored AB 1663, which reformed probate conservatorships and provided a framework for supported decision making. The changes in AB 2352 are out of step with the statutory structure for supported decision making and appear to be unnecessary and confusing.
The bill establishes different witness requirements for a PAD and an AHCD. There is no identified reason for different requirements. Based on longstanding law, the requirements should remain the same.
Section 9 of the bill amends Probate Code Section 4673 related to legal sufficiency of AHCDs. Under existing law, AHCDs and PADs (which are a type of AHCD) would have the same witness signature requirements, i.e. two witnesses or a notary public. The bill eliminates the ability to use a notary for a PAD and requires only one witness. This makes no sense. There is no reason for a PAD, whether it is standalone or part of a larger AHCD, to have different witness requirements.
AB 2352 SHOULD FOCUS ON WHAT IS NEEDED FOR DIGITAL PADS TO BE TESTED UNDER THE INNOVATION PROJECT. CONFUSING, UNECCESARY AND EXPANSIVE CHANGES TO LAW SHOULD BE ELIMINATED
A PAD is a type of Advance Health Care Directive. It MAY be a standalone document, but this is not required. The bill blurs that point by including specific requirements, duplications and exemptions for PADS as compared to all AHCDs, which makes it seem all PADs will be standalone. This is a mistake. Existing AHCDs with or without an inclusive PAD, and existing standalone PADs, should not need updating because of this bill. For an example of an inclusive AHCD, the Veterans Administration offers a template that includes mental health in an advance directive.
At its heart, the bill seeks to create a framework for digital PADs. That is what the MHSOAC seven-county innovation project is all about. We support that intent but want to be sure everyone understands what a digital PAD is and how it is created, stored and accessed. This bill does not do that. The sponsor is using a proprietary platform in the innovation project. Will that become the standard? With MHSA Innovation funding eliminated by Proposition 1, how will counties sustain the digital platform long term? Will hospitals have to purchase the platform? Will there be competitors? Over the last ten years we have seen the challenges in implementing Electronic Medical Records under the Affordable Care Act. It is about more than digital signatures – it is the content in the platform. The bill needs to do a better job there so that a PAD can be easy to complete and may be accessed by specific entities, i.e. law enforcement and hospitals, when appropriate. Access does not mean all parts of a PAD are accessible to all who need parts of it. It is important to ensure law enforcement and health care providers each have access to only those portions of the PAD relevant for their jobs.
For these reasons, DRC and MHAC respectfully oppose this bill unless it is amended to address our concerns. Please contact us if you have any questions about our position or if I can provide any further information.
Sincerely,
Deb Roth
Senior Legislative Advocate
Disability Rights California
Karen Vicari
Director of Public Policy
Mental Health American of California
cc: Honorable Members, Assembly Judiciary Committee
The Honorable Jacqui Irwin, California State Assembly
The Honorable Gail Pellerin, California State Assembly
Alison Merrilees, Assembly Judiciary Committee
Charmaine Mills, Office of Assemblymember Pellerin
1 Murray H & Wortzel HS. Psychiatric Advance Directives: Origins, Benefits, Challenges, and Future Directions. Journal of Psychiatric Practice, 2019;25(4):303-0