AB 1423: Prisoners: medical treatment.
- Session Year: 2015-2016
- House: Assembly
- Latest Version Date: 2015-09-30
Existing law provides for the designation and selection of health care surrogates, and for the manner of making health care decisions for patients without surrogates.
Existing law prohibits the administration of psychiatric medication to an inmate in state prison on a nonemergency basis without the inmates informed consent, unless certain conditions are satisfied, including, among other things, that a psychiatrist determines that the inmate is gravely disabled and does not have the capacity to refuse treatment with psychiatric medication. Existing law authorizes a physician to administer psychiatric medication to a prison inmate in specified emergency situations.
This bill would, except as provided, establish a process for a licensed physician or dentist to file a petition with the Office of Administrative Hearings to request that an administrative law judge make a determination as to a patients capacity to give informed consent or make a health care decision, and request appointment of a surrogate decisionmaker, if the patient is an adult housed in state prison, the physician or dentist is unable to obtain informed consent from the inmate patient because the physician or dentist determines that the inmate patient appears to lack capacity to provide informed consent or make a health care decision, and there is no person with legal authority to provide informed consent for, or make decisions concerning the health care of, the inmate patient. The bill would require the petition to contain specified information, including, among other things, the inmate patients current physical condition and a description of the health care conditions currently afflicting the inmate patient.
This bill would require that the petition be served on the inmate patient and his or her counsel, and filed with the office, as provided. The bill would also require that the inmate patient be provided with counsel and a written notice advising him or her of, among other things, the inmate patients right to be present at the hearing. Except as specified, the bill would require that the inmate patient be provided with a hearing before an administrative law judge within 30 days of the date of filing the petition. In case of an emergency, as defined, the bill would authorize the inmate patients physician or dentist to administer a medical intervention that requires informed consent prior to the date of the administrative hearing and would require that counsel for the inmate patient be notified by the physician or dentist. The bill would require the administrative law judge to determine and provide a written order and findings setting forth whether there has been clear and convincing evidence that, among other things, the inmate patient lacks capacity to give informed consent or make a health care decision. If the findings required by these provisions are made, the bill would require the administrative law judge to appoint a surrogate decisionmaker for health care for the inmate patient, as provided, which would be valid for one year and would be valid at any state correctional facility within California. The bill would also provide for a process to renew the appointment of the surrogate decisionmaker. The bill would authorize the Secretary of the Department of Corrections and Rehabilitation to adopt regulations as necessary to carry out these provisions.
Existing law provides for the designation and selection of health care surrogates, and for the manner of making health care decisions for patients without surrogates.
Existing law prohibits the administration of psychiatric medication to an inmate in state prison on a nonemergency basis without the inmates informed consent, unless certain conditions are satisfied, including, among other things, that a psychiatrist determines that the inmate is gravely disabled and does not have the capacity to refuse treatment with psychiatric medication. Existing law authorizes a physician to administer psychiatric medication to a prison inmate in specified emergency situations.
This bill would, except as provided, establish a process for a licensed physician or dentist to file a petition with the Office of Administrative Hearings to request that an administrative law judge make a determination as to a patients capacity to give informed consent or make a health care decision, and request appointment of a surrogate decisionmaker, if the patient is an adult housed in state prison, the physician or dentist is unable to obtain informed consent from the inmate patient because the physician or dentist determines that the inmate patient appears to lack capacity to provide informed consent or make a health care decision, and there is no person with legal authority to provide informed consent for, or make decisions concerning the health care of, the inmate patient. The bill would require the petition to contain specified information, including, among other things, the inmate patients current physical condition and a description of the health care conditions currently afflicting the inmate patient.
This bill would require that the petition be served on the inmate patient and his or her counsel, and filed with the office, as provided. The bill would also require that the inmate patient be provided with counsel and a written notice advising him or her of, among other things, the inmate patients right to be present at the hearing. Except as specified, the bill would require that the inmate patient be provided with a hearing before an administrative law judge within 30 days of the date of filing the petition. In case of an emergency, as defined, the bill would authorize the inmate patients physician or dentist to administer a medical intervention that requires informed consent prior to the date of the administrative hearing and would require that counsel for the inmate patient be notified by the physician or dentist. The bill would require the administrative law judge to determine and provide a written order and findings setting forth whether there has been clear and convincing evidence that, among other things, the inmate patient lacks capacity to give informed consent or make a health care decision. If the findings required by these provisions are made, the bill would require the administrative law judge to appoint a surrogate decisionmaker for health care for the inmate patient, as provided, which would be valid for one year and would be valid at any state correctional facility within California. The bill would also provide for a process to renew the appointment of the surrogate decisionmaker. The bill would authorize the Secretary of the Department of Corrections and Rehabilitation to adopt regulations as necessary to carry out these provisions.
Existing law provides for the designation and selection of health care surrogates, and for the manner of making health care decisions for patients without surrogates.
Existing law prohibits the administration of psychiatric medication to an inmate in state prison on a nonemergency basis without the inmates informed consent, unless certain conditions are satisfied, including, among other things, that a psychiatrist determines that the inmate is gravely disabled and does not have the capacity to refuse treatment with psychiatric medication. Existing law authorizes a physician to administer psychiatric medication to a prison inmate in specified emergency situations.
This bill would, except as provided, establish a process for a licensed physician or dentist to file a petition with the Office of Administrative Hearings to request that an administrative law judge make a determination as to a patients capacity to give informed consent or make a health care decision, and request appointment of a surrogate decisionmaker, if the patient is an adult housed in state prison, the physician or dentist is unable to obtain informed consent from the inmate patient because the physician or dentist determines that the inmate patient appears to lack capacity to provide informed consent or make a health care decision, and there is no person with legal authority to provide informed consent for, or make decisions concerning the health care of, the inmate patient. The bill would require the petition to contain specified information, including, among other things, the inmate patients current physical condition and a description of the health care conditions currently afflicting the inmate patient.
This bill would require that the petition be served on the inmate patient and his or her counsel, and filed with the office, as provided inmate patient. provided. The bill would also require that the inmate patient be provided with counsel and a written notice advising him or her of, among other things, the s the inmate patients right to be present at the hearing. Except as specified, the bill would require that the inmate patient be provided with a hearing before an administrative law judge within 30 days of the date of filing the petition. In case of an emergency, as defined, the bill would authorize the inmate patients physician or dentist to administer a medical intervention that requires informed consent prior to the date of the administrative hearing and would require that counsel for the inmate patient be notified by the physician or dentist. The bill would require the administrative law judge to determine and provide a written order and findings setting forth whether there has been clear and convincing evidence that, among other things, the inmate patient lacks capacity to give informed consent or make a health care decision. If the findings required by these provisions are made, the bill would require the administrative law judge to appoint a surrogate decisionmaker for health care for the inmate patient, as provided, which would be valid for one year and would be valid at any state correctional facility within California. The bill would also provide for a process to renew the appointment of the surrogate decisionmaker. The bill would authorize the Secretary of the Department of Corrections and Rehabilitation to adopt regulations as necessary to carry out these provisions.
Existing law provides for the designation and selection of health care surrogates, and for the manner of making health care decisions for patients without surrogates.
Existing law prohibits the administration of psychiatric medication to an inmate in state prison on a nonemergency basis without the inmates informed consent, unless certain conditions are satisfied, including, among other things, that a psychiatrist determines that the inmate is gravely disabled and does not have the capacity to refuse treatment with psychiatric medication. Existing law authorizes a physician to administer psychiatric medication to a prison inmate in specified emergency situations.
This bill would, except as provided, establish a process for a licensed physician or dentist to file a petition with the Office of Administrative Hearings to request that an administrative law judge make a determination as to a patients capacity to give informed consent or make a health care decision, and request appointment of a surrogate decisionmaker, if the patient is an adult housed in state prison, the physician or dentist is unable to obtain informed consent from the inmate patient because the physician or dentist determines that the inmate patient appears to lack capacity to provide informed consent or make a health care decision, and there is no person with legal authority to provide informed consent for, or make decisions concerning the health care of, the inmate patient. The bill would require the petition to contain specified information, including, among other things, the inmate patients current physical condition and a description of the health care conditions currently afflicting the inmate patient.
This bill would require that the petition be served on the inmate patient and his or her counsel, and filed with the office, as provided inmate patient. The bill would also require that the inmate patient be provided with counsel and a written notice advising him or her of, among other things, the s right to be present at the hearing. Except as specified, the bill would require that the inmate patient be provided with a hearing before an administrative law judge within 30 days of the date of filing the petition. In case of an emergency, as defined, the bill would authorize the inmate patients physician or dentist to administer a medical intervention that requires informed consent prior to the date of the administrative hearing and would require that counsel for the inmate patient be notified by the physician or dentist. The bill would require the administrative law judge to determine and provide a written order and findings setting forth whether there has been clear and convincing evidence that, among other things, the inmate patient lacks capacity to give informed consent or make a health care decision. If the findings required by these provisions are made, the bill would require the administrative law judge to appoint a surrogate decisionmaker for health care for the inmate patient, as provided, which would be valid for one year and would be valid at any state correctional facility within California. The bill would also provide for a process to renew the appointment of the surrogate decisionmaker. The bill would authorize the Secretary of the Department of Corrections and Rehabilitation to adopt regulations as necessary to carry out these provisions.
Under existing law a person who allows any lack of care that would injure or impair the health of a person confined in the state prison is guilty of a misdemeanor. Existing law prohibits the Department of Corrections and Rehabilitation from modifying or canceling an order of a physician employed by the department for medical treatment of an inmate that is required to prevent a violation of that prohibition, or to prevent serious and imminent harm to the health of a prisoner, except under specified circumstances. Existing law authorizes the Secretary of the Department of Corrections and Rehabilitation to allow the temporary removal of an inmate from the state prison for the purposes of receiving medical treatment.
This bill would express the intent of the Legislature to enact legislation that would establish a process by which the department can obtain consent to release information to the relatives of a prisoner suffering from a debilitating, but not life-threatening, condition during the term of his or her imprisonment, and to obtain consent for a proposed course of treatment for that condition.
Under existing law a person who allows any lack of care that would injure or impair the health of a person confined in the state prison is guilty of a misdemeanor. Existing law prohibits the Department of Corrections and Rehabilitation from modifying or canceling an order of a physician employed by the department for medical treatment of an inmate that is required to prevent a violation of that prohibition, or to prevent serious and imminent harm to the health of a prisoner, except under specified circumstances. Existing law authorizes the Secretary of the Department of Corrections and Rehabilitation to allow the temporary removal of an inmate from the state prison for the purposes of receiving medical treatment.
This bill would express the intent of the Legislature to enact legislation that would establish a process by which the department can obtain consent to release information to the relatives of a prisoner suffering from a debilitating, but not life-threatening, condition during the term of his or her imprisonment, and to obtain consent for a proposed course of treatment for that condition.
The Legislature finds and declares all of the following:
(a)In recognition of the dignity and privacy a person has a right to expect, the law recognizes that adults housed in state prison have the fundamental right to control decisions relating to their own health care, including the decision to have life-sustaining treatment withheld or withdrawn.
(b)The determination of capacity for informed consent for adults housed in state prison is more appropriately conducted at the institution where the patient is housed and can attend, if he or she desires.
(c)Because of the confinement of these adults and their frequent movement between institutions, existing protections for patients regarding health care decisionmaking are inadequate.
(d)Existing statutory schemes centered on life-threatening emergent illness and court-ordered decisionmakers do not adequately address the needs of adults housed in state prison to have their capacity issues addressed and adjudicated by a neutral third party, even in the absence of a serious or life-threatening medical emergency.
SEC. 2.Section 2604 is added to the Penal Code, to read:2604.(a)Except as provided in subdivision (b), an adult housed in state prison is presumed to have the capacity to give informed consent and make a health care decision, to give or revoke an advance health care directive, and to designate or disqualify a surrogate. This presumption is a presumption affecting the burden of proof.
(b)(1)Except as provided in Section 2602, a licensed physician or dentist may file a petition with the Office of Administrative Hearings to request that an administrative law judge make a determination as to a patients capacity to give informed consent or make a health care decision, and request appointment of a surrogate decisionmaker, if all of the following conditions are satisfied:
(A)The licensed physician or dentist is treating a patient who is an adult housed in state prison.
(B)The licensed physician or dentist is unable to obtain informed consent from the inmate patient because the physician or dentist determines that the inmate patient appears to lack capacity to give informed consent or make a health care decision.
(C)There is no person with legal authority to provide informed consent for, or make decisions concerning the health care of, the inmate patient.
(2)Preference shall be given to the next of kin or a family member as a surrogate decisionmaker over other potential surrogate decisionmakers unless those individuals are unsuitable or unable to serve.
(c)The petition required by subdivision (b) shall allege all of the following:
(1)The inmate patients current physical condition, describing the health care conditions currently afflicting the inmate patient.
(2)The inmate patients current mental health condition resulting in the inmate patients inability to understand the nature and consequences of his or her need for care such that there is a lack of capacity to give informed consent or make a health care decision.
(3)The deficit or deficits in the inmate patients mental functions as listed in subdivision (a) of Section 811 of the Probate Code.
(4)An identification of a link, if any, between the deficits identified pursuant to paragraph (3) and an explanation of how the deficits identified pursuant to that paragraph result in the inmate patients inability to participate in a decision about his or her health care either knowingly and intelligently or by means of a rational thought process.
(5)A discussion of whether the deficits identified pursuant to paragraph (3) are transient, fixed, or likely to change during the proposed year-long duration of the court order.
(6)The efforts made to obtain informed consent or refusal from the inmate patient and the results of those efforts.
(7)The efforts made to locate next of kin who could act as a surrogate decisionmaker for the inmate patient. If those individuals are located, all of the following shall also be included, so far as the information is known:
(A)The names and addresses of the individuals.
(B)Whether any information exists to suggest that any of those individuals would not act in the inmate patients best interests.
(C)Whether any of those individuals are otherwise suitable to make health care decisions for the inmate patient.
(8)The probable impact on the inmate patient with, or without, the appointment of a surrogate decisionmaker.
(9)A discussion of the inmate patients desires, if known, and whether there is an advance health care directive, Physicians Orders for Life Sustaining Treatment (POLST), or other documented indication of the inmate patients directives or desires and how those indications might influence the decision to issue an order. Additionally, any known POLST or Advanced Health Care Directives executed while the inmate patient had capacity shall be disclosed.
(10)The petitioners recommendation specifying a qualified and willing surrogate decisionmaker as described in subdivision (q), and the reasons for that recommendation.
(d)The petition shall be served on the inmate patient and his or her counsel, and filed with the Office of Administrative Hearings on the same day as it was served. The Office of Administrative Hearings shall issue a notice appointing counsel.
(e)(1)At the time the initial petition is filed, the inmate patient shall be provided with counsel and a written notice advising him or her of all of the following:
(A)His or her right to be present at the hearing.
(B)His or her right to be represented by counsel at all stages of the proceedings.
(C)His or her right to present evidence.
(D)His or her right to cross-examine witnesses.
(E)The right of either party to seek one reconsideration of the administrative law judges decision per calendar year.
(F)His or her right to file a petition for writ of administrative mandamus in superior court pursuant to Section 1094.5 of the Code of Civil Procedure.
(G)His or her right to file a petition for writ of habeas corpus in superior court with respect to any decision.
(2)Counsel for the inmate patient shall have access to all relevant medical and central file records for the inmate patient, but shall not have access to materials unrelated to medical treatment located in the confidential section of the inmate patients central file. Counsel shall also have access to all health care appeals filed by the inmate patient and responses to those appeals, and, to the extent available, any habeas corpus petitions or health care related litigation filed by, or on behalf of, the inmate patient.
(f)The inmate patient shall be provided with a hearing before an administrative law judge within 30 days of the date of filing the petition, unless counsel for the inmate patient agrees to extend the date of the hearing.
(g)The inmate patient, or his or her counsel, shall have 14 days from the date of filing of any petition to file a response to the petition, unless a shorter time for the hearing is sought by the licensed physician or dentist and ordered by the administrative law judge, in which case the judge shall set the time for filing a response. The response shall be served to all parties who were served with the initial petition and the attorney for the petitioner.
(h)In case of an emergency, as described in Section 3351 of Title 15 of the California Code of Regulations, the inmate patients physician or dentist may administer a medical intervention that requires informed consent prior to the date of the administrative hearing. Counsel for the inmate patient shall be notified by the physician or dentist.
(i)In either an initial or renewal proceeding, the inmate patient has the right to contest the finding of an administrative law judge authorizing a surrogate decisionmaker by filing a petition for writ of administrative mandamus pursuant to Section 1094.5 of the Code of Civil Procedure.
(j)In either an initial or renewal proceeding, either party is entitled to file one motion for reconsideration per calendar year in front of the administrative law judge following a determination as to an inmate patients capacity to give informed consent or make a health care decision. The motion may seek to review the decision for the necessity of a surrogate decisionmaker, the individual appointed under the order, or both. The motion for reconsideration shall not require a formal rehearing unless ordered by the administrative law judge following submission of the motion, or upon the granting of a request for formal rehearing by any party to the action based on a showing of good cause.
(k)(1)To renew an existing order appointing a surrogate decisionmaker, the current physician or dentist, or a previously appointed surrogate decisionmaker shall file a renewal petition. The renewal shall be for an additional year at a time. The renewal hearing on any order issued under this section shall be conducted prior to the expiration of the current order, but not sooner than 10 days after the petition is filed, at which time the inmate patient shall be brought before an administrative law judge for a review of his or her current medical and mental health condition.
(2)A renewal petition shall be served on the inmate patient and his or her counsel, and filed with the Office of Administrative Hearings on the same day as it was served. The Office of Administrative Hearings shall issue a written order appointing counsel.
(3)(A)The renewal hearing shall be held in accordance with subdivisions (d) to (g), inclusive.
(B)(i)At the time the renewal petition is filed, the inmate patient shall be provided with counsel and a written notice advising him or her of all of the following:
(I)His or her right to be present at the hearing.
(II)His or her right to be represented by counsel at all stages of the proceedings.
(III)His or her right to present evidence.
(IV)His or her right to cross-examine witnesses.
(V)The right of either party to seek one reconsideration of the administrative law judges decision per calendar year.
(VI)His or her right to file a petition for writ of administrative mandamus in superior court pursuant to Section 1094.5 of the Code of Civil Procedure.
(VII)His or her right to file a petition for writ of habeas corpus in superior court with respect to any decision.
(ii)Counsel for the inmate patient shall have access to all relevant medical and central file records for the inmate patient, but shall not have access to materials unrelated to medical treatment located in the confidential section of the inmate patients central file. Counsel shall also have access to all health care appeals filed by the inmate patient and responses to those appeals, and, to the extent available, any habeas corpus petitions or health care related litigation filed by, or on behalf of, the inmate patient.
(4)The renewal petition shall request the matter be reviewed by an administrative law judge, and allege all of the following:
(A)The current status of each of the elements set forth in paragraphs (1) to (8), inclusive, of subdivision (c).
(B)Whether the inmate patient still requires a surrogate decisionmaker.
(C)Whether the inmate patient continues to lack capacity to give informed consent or make a health care decision.
(l)A licensed physician or dentist who submits a petition pursuant to this section shall not be required to obtain a court order pursuant to Section 3201 of the Probate Code prior to administering care that requires informed consent.
(m)This section does not affect the right of an inmate patient who has been determined to lack capacity to give informed consent or make a health care decision and for whom a surrogate decisionmaker has been appointed to do either of the following:
(1)Seek appropriate judicial relief to review the determination or appointment by filing a petition for writ of administrative mandamus pursuant to Section 1094.5 of the Code of Civil Procedure.
(2)File a petition for writ of habeas corpus in superior court regarding the determination or appointment, or any treatment decision by the surrogate decisionmaker.
(n)A licensed physician or other health care provider whose actions under this section are in accordance with reasonable health care standards, a surrogate decisionmaker appointed pursuant to this section, and an administrative law judge shall not be liable for monetary damages or administrative sanctions for his or her decisions or actions consistent with this section and the known and documented desires of the inmate patient, or if unknown, the best interests of the inmate patient.
(o)The determinations required to be made pursuant to subdivisions (c) and (k), and the basis for those determinations, shall be documented in the inmate patients medical record.
(p)(1)With regard to any petition filed pursuant to subdivision (c) or (k), the administrative law judge shall determine and provide a written order and findings setting forth whether there has been clear and convincing evidence that all of the following occurred:
(A)Adequate notice and an opportunity to be heard has been given to the inmate patient and his or her counsel.
(B)Reasonable efforts have been made to obtain informed consent from the inmate patient.
(C)As a result of one or more deficits in his or her mental functions, the inmate patient lacks capacity to give informed consent or make a health care decision and is unlikely to regain that capacity over the next year.
(D)Reasonable efforts have been made to identify family members or relatives who could serve as a surrogate decisionmaker for the inmate patient.
(2)The written decision shall also specify and describe any advance health care directives, POLST, or other documented indication of the inmate patients directives or desires regarding health care that were created and validly executed while the inmate patient had capacity.
(q)(1)If all findings required by subdivision (p) are made, the administrative law judge shall appoint a surrogate decisionmaker for health care for the inmate patient. In doing so, the administrative law judge shall consider all reasonable options presented, including those identified in the petition, and weigh how the proposed surrogate decisionmaker would represent the best interests of the inmate patient, the efficacy of achieving timely surrogate decisions, and the urgency of the situation. Family members or relatives of the inmate patient should be appointed when possible if such an individual is available and the administrative law judge determines the family member or relative will act in the inmate patients best interests.
(2)An employee of the Department of Corrections and Rehabilitation, or other peace officer, shall not be appointed surrogate decisionmaker for health care for any inmate patient under this section, unless either of the following conditions apply:
(A)The individual is a family member or relative of the inmate patient and will, as determined by the administrative law judge, act in the inmate patients best interests and consider the inmate patients personal values and other wishes to the extent those values and wishes are known.
(B)The individual is a health care staff member in a managerial position and does not provide direct care to the inmate patient. A surrogate decisionmaker appointed under this subparagraph may be specified by his or her functional role at the institution, such as Chief Physician and Surgeon or Chief Medical Executive to provide clarity as to the active decisionmaker at the institution where the inmate patient is housed, and to anticipate potential personnel changes. When the surrogate decisionmaker is specified by position, rather than by name, the person occupying that specified role at the institution at which the inmate patient is currently housed shall be considered and act as the appointed surrogate decisionmaker.
(3)The order appointing the surrogate decisionmaker shall be written and state the basis for the decision by reference to the particular mandates of this subdivision. The order shall also state that the surrogate decisionmaker shall honor and follow any advance health care directive, POLST, or other documented indication of the inmate patients directives or desires, and specify any such directive, order, or documented desire.
(4)The surrogate decisionmaker shall follow the inmate patients personal values and other wishes to the extent those values and wishes are known.
(r)The administrative law judges written decision and order appointing a surrogate decisionmaker shall be placed in the inmate patients Department of Corrections and Rehabilitation health care record.
(s)An order entered under this section is valid for one year and the expiration date shall be written on the order. The order shall be valid at any state correctional facility within California. If the inmate patient is moved, the sending institution shall inform the receiving institution of the existence of an order entered under this section.
(t)(1)This section applies only to orders appointing a surrogate decisionmaker with authority to make a health care decision for an inmate patient who lacks capacity to give informed consent or make a health care decision.
(2)This section does not apply to existing law regarding health care to be provided in an emergency or existing law governing health care for unemancipated minors. This section shall not be used for the purposes of determining or directing an inmate patients control over finances, marital status, or for convulsive treatment, as described in Section 5325 of the Welfare and Institutions Code, psychosurgery, as defined in Section 5325 of the Welfare and Institutions Code, sterilization, abortion, or involuntary administration of psychiatric medication, as described in Section 2602.
(u)The Secretary of the Department of Corrections and Rehabilitation may adopt regulations as necessary to carry out the purposes of this section.
The Legislature finds and declares all of the following:
(a)In recognition of the dignity and privacy a person has a right to expect, the law recognizes that adults housed in state prison have the fundamental right to control decisions relating to their own health care, including the decision to have life-sustaining treatment withheld or withdrawn.
(b)The determination of capacity for informed consent for adults housed in state prison is more appropriately conducted at the institution where the patient is housed and can attend, if he or she desires.
(c)Because of the confinement of these adults and their frequent movement between institutions, existing protections for patients regarding health care decisionmaking are inadequate.
(d)Existing statutory schemes centered on life-threatening emergent illness and court-ordered decisionmakers do not adequately address the needs of adults housed in state prison to have their capacity issues addressed and adjudicated by a neutral third party, even in the absence of a serious or life-threatening medical emergency.
SEC. 2.Section 2604 is added to the Penal Code, to read:2604.(a)Except as provided in subdivision (b), an adult housed in state prison is presumed to have the capacity to give informed consent and make a health care decision, to give or revoke an advance health care directive, and to designate or disqualify a surrogate. This presumption is a presumption affecting the burden of proof.
(b)(1)Except as provided in Section 2602, a licensed physician or dentist may file a petition with the Office of Administrative Hearings to request that an administrative law judge make a determination as to a patients capacity to give informed consent or make a health care decision, and request appointment of a surrogate decisionmaker, if all of the following conditions are satisfied:
(A)The licensed physician or dentist is treating a patient who is an adult housed in state prison.
(B)The licensed physician or dentist is unable to obtain informed consent from the inmate patient because the physician or dentist determines that the inmate patient appears to lack capacity to give informed consent or make a health care decision.
(C)There is no person with legal authority to provide informed consent for, or make decisions concerning the health care of, the inmate patient.
(2)Preference shall be given to the next of kin or a family member as a surrogate decisionmaker over other potential surrogate decisionmakers unless those individuals are unsuitable or unable to serve.
(c)The petition required by subdivision (b) shall allege all of the following:
(1)The inmate patients current physical condition, describing the health care conditions currently afflicting the inmate patient.
(2)The inmate patients current mental health condition resulting in the inmate patients inability to understand the nature and consequences of his or her need for care such that there is a lack of capacity to give informed consent or make a health care decision.
(3)The deficit or deficits in the inmate patients mental functions as listed in subdivision (a) of Section 811 of the Probate Code.
(4)An identification of a link, if any, between the deficits identified pursuant to paragraph (3) and an explanation of how the deficits identified pursuant to that paragraph result in the inmate patients inability to participate in a decision about his or her health care either knowingly and intelligently or by means of a rational thought process.
(5)A discussion of whether the deficits identified pursuant to paragraph (3) are transient, fixed, or likely to change during the proposed year-long duration of the court order.
(6)The efforts made to obtain informed consent or refusal from the inmate patient and the results of those efforts.
(7)The efforts made to locate next of kin who could act as a surrogate decisionmaker for the inmate patient. If those individuals are located, all of the following shall also be included, so far as the information is known:
(A)The names and addresses of the individuals.
(B)Whether any information exists to suggest that any of those individuals would not act in the inmate patients best interests.
(C)Whether any of those individuals are otherwise suitable to make health care decisions for the inmate patient.
(8)The probable impact on the inmate patient with, or without, the appointment of a surrogate decisionmaker.
(9)A discussion of the inmate patients desires, if known, and whether there is an advance health care directive, Physicians Orders for Life Sustaining Treatment (POLST), or other documented indication of the inmate patients directives or desires and how those indications might influence the decision to issue an order. Additionally, any known POLST or Advanced Health Care Directives executed while the inmate patient had capacity shall be disclosed.
(10)The petitioners recommendation specifying a qualified and willing surrogate decisionmaker as described in subdivision (q), and the reasons for that recommendation.
(d)The petition shall be served on the inmate patient and his or her counsel, and filed with the Office of Administrative Hearings on the same day as it was served. The Office of Administrative Hearings shall issue a notice appointing counsel.
(e)(1)At the time the initial petition is filed, the inmate patient shall be provided with counsel and a written notice advising him or her of all of the following:
(A)His or her right to be present at the hearing.
(B)His or her right to be represented by counsel at all stages of the proceedings.
(C)His or her right to present evidence.
(D)His or her right to cross-examine witnesses.
(E)The right of either party to seek one reconsideration of the administrative law judges decision per calendar year.
(F)His or her right to file a petition for writ of administrative mandamus in superior court pursuant to Section 1094.5 of the Code of Civil Procedure.
(G)His or her right to file a petition for writ of habeas corpus in superior court with respect to any decision.
(2)Counsel for the inmate patient shall have access to all relevant medical and central file records for the inmate patient, but shall not have access to materials unrelated to medical treatment located in the confidential section of the inmate patients central file. Counsel shall also have access to all health care appeals filed by the inmate patient and responses to those appeals, and, to the extent available, any habeas corpus petitions or health care related litigation filed by, or on behalf of, the inmate patient.
(f)The inmate patient shall be provided with a hearing before an administrative law judge within 30 days of the date of filing the petition, unless counsel for the inmate patient agrees to extend the date of the hearing.
(g)The inmate patient, or his or her counsel, shall have 14 days from the date of filing of any petition to file a response to the petition, unless a shorter time for the hearing is sought by the licensed physician or dentist and ordered by the administrative law judge, in which case the judge shall set the time for filing a response. The response shall be served to all parties who were served with the initial petition and the attorney for the petitioner.
(h)In case of an emergency, as described in Section 3351 of Title 15 of the California Code of Regulations, the inmate patients physician or dentist may administer a medical intervention that requires informed consent prior to the date of the administrative hearing. Counsel for the inmate patient shall be notified by the physician or dentist.
(i)In either an initial or renewal proceeding, the inmate patient has the right to contest the finding of an administrative law judge authorizing a surrogate decisionmaker by filing a petition for writ of administrative mandamus pursuant to Section 1094.5 of the Code of Civil Procedure.
(j)In either an initial or renewal proceeding, either party is entitled to file one motion for reconsideration per calendar year in front of the administrative law judge following a determination as to an inmate patients capacity to give informed consent or make a health care decision. The motion may seek to review the decision for the necessity of a surrogate decisionmaker, the individual appointed under the order, or both. The motion for reconsideration shall not require a formal rehearing unless ordered by the administrative law judge following submission of the motion, or upon the granting of a request for formal rehearing by any party to the action based on a showing of good cause.
(k)(1)To renew an existing order appointing a surrogate decisionmaker, the current physician or dentist, or a previously appointed surrogate decisionmaker shall file a renewal petition. The renewal shall be for an additional year at a time. The renewal hearing on any order issued under this section shall be conducted prior to the expiration of the current order, but not sooner than 10 days after the petition is filed, at which time the inmate patient shall be brought before an administrative law judge for a review of his or her current medical and mental health condition.
(2)A renewal petition shall be served on the inmate patient and his or her counsel, and filed with the Office of Administrative Hearings on the same day as it was served. The Office of Administrative Hearings shall issue a written order appointing counsel.
(3)(A)The renewal hearing shall be held in accordance with subdivisions (d) to (g), inclusive.
(B)(i)At the time the renewal petition is filed, the inmate patient shall be provided with counsel and a written notice advising him or her of all of the following:
(I)His or her right to be present at the hearing.
(II)His or her right to be represented by counsel at all stages of the proceedings.
(III)His or her right to present evidence.
(IV)His or her right to cross-examine witnesses.
(V)The right of either party to seek one reconsideration of the administrative law judges decision per calendar year.
(VI)His or her right to file a petition for writ of administrative mandamus in superior court pursuant to Section 1094.5 of the Code of Civil Procedure.
(VII)His or her right to file a petition for writ of habeas corpus in superior court with respect to any decision.
(ii)Counsel for the inmate patient shall have access to all relevant medical and central file records for the inmate patient, but shall not have access to materials unrelated to medical treatment located in the confidential section of the inmate patients central file. Counsel shall also have access to all health care appeals filed by the inmate patient and responses to those appeals, and, to the extent available, any habeas corpus petitions or health care related litigation filed by, or on behalf of, the inmate patient.
(4)The renewal petition shall request the matter be reviewed by an administrative law judge, and allege all of the following:
(A)The current status of each of the elements set forth in paragraphs (1) to (8), inclusive, of subdivision (c).
(B)Whether the inmate patient still requires a surrogate decisionmaker.
(C)Whether the inmate patient continues to lack capacity to give informed consent or make a health care decision.
(l)A licensed physician or dentist who submits a petition pursuant to this section shall not be required to obtain a court order pursuant to Section 3201 of the Probate Code prior to administering care that requires informed consent.
(m)This section does not affect the right of an inmate patient who has been determined to lack capacity to give informed consent or make a health care decision and for whom a surrogate decisionmaker has been appointed to do either of the following:
(1)Seek appropriate judicial relief to review the determination or appointment by filing a petition for writ of administrative mandamus pursuant to Section 1094.5 of the Code of Civil Procedure.
(2)File a petition for writ of habeas corpus in superior court regarding the determination or appointment, or any treatment decision by the surrogate decisionmaker.
(n)A licensed physician or other health care provider whose actions under this section are in accordance with reasonable health care standards, a surrogate decisionmaker appointed pursuant to this section, and an administrative law judge shall not be liable for monetary damages or administrative sanctions for his or her decisions or actions consistent with this section and the known and documented desires of the inmate patient, or if unknown, the best interests of the inmate patient.
(o)The determinations required to be made pursuant to subdivisions (c) and (k), and the basis for those determinations, shall be documented in the inmate patients medical record.
(p)(1)With regard to any petition filed pursuant to subdivision (c) or (k), the administrative law judge shall determine and provide a written order and findings setting forth whether there has been clear and convincing evidence that all of the following occurred:
(A)Adequate notice and an opportunity to be heard has been given to the inmate patient and his or her counsel.
(B)Reasonable efforts have been made to obtain informed consent from the inmate patient.
(C)As a result of one or more deficits in his or her mental functions, the inmate patient lacks capacity to give informed consent or make a health care decision and is unlikely to regain that capacity over the next year.
(D)Reasonable efforts have been made to identify family members or relatives who could serve as a surrogate decisionmaker for the inmate patient.
(2)The written decision shall also specify and describe any advance health care directives, POLST, or other documented indication of the inmate patients directives or desires regarding health care that were created and validly executed while the inmate patient had capacity.
(q)(1)If all findings required by subdivision (p) are made, the administrative law judge shall appoint a surrogate decisionmaker for health care for the inmate patient. In doing so, the administrative law judge shall consider all reasonable options presented, including those identified in the petition, and weigh how the proposed surrogate decisionmaker would represent the best interests of the inmate patient, the efficacy of achieving timely surrogate decisions, and the urgency of the situation. Family members or relatives of the inmate patient should be appointed when possible if such an individual is available and the administrative law judge determines the family member or relative will act in the inmate patients best interests.
(2)An employee of the Department of Corrections and Rehabilitation, or other peace officer, shall not be appointed surrogate decisionmaker for health care for any inmate patient under this section, unless either of the following conditions apply:
(A)The individual is a family member or relative of the inmate patient and will, as determined by the administrative law judge, act in the inmate patients best interests and consider the inmate patients personal values and other wishes to the extent those values and wishes are known.
(B)The individual is a health care staff member in a managerial position and does not provide direct care to the inmate patient. A surrogate decisionmaker appointed under this subparagraph may be specified by his or her functional role at the institution, such as Chief Physician and Surgeon or Chief Medical Executive to provide clarity as to the active decisionmaker at the institution where the inmate patient is housed, and to anticipate potential personnel changes. When the surrogate decisionmaker is specified by position, rather than by name, the person occupying that specified role at the institution at which the inmate patient is currently housed shall be considered and act as the appointed surrogate decisionmaker.
(3)The order appointing the surrogate decisionmaker shall be written and state the basis for the decision by reference to the particular mandates of this subdivision. The order shall also state that the surrogate decisionmaker shall honor and follow any advance health care directive, POLST, or other documented indication of the inmate patients directives or desires, and specify any such directive, order, or documented desire.
(4)The surrogate decisionmaker shall follow the inmate patients personal values and other wishes to the extent those values and wishes are known.
(r)The administrative law judges written decision and order appointing a surrogate decisionmaker shall be placed in the inmate patients Department of Corrections and Rehabilitation health care record.
(s)An order entered under this section is valid for one year and the expiration date shall be written on the order. The order shall be valid at any state correctional facility within California. If the inmate patient is moved, the sending institution shall inform the receiving institution of the existence of an order entered under this section.
(t)(1)This section applies only to orders appointing a surrogate decisionmaker with authority to make a health care decision for an inmate patient who lacks capacity to give informed consent or make a health care decision.
(2)This section does not apply to existing law regarding health care to be provided in an emergency or existing law governing health care for unemancipated minors. This section shall not be used for the purposes of determining or directing an inmate patients control over finances, marital status, or for convulsive treatment, as described in Section 5325 of the Welfare and Institutions Code, psychosurgery, as defined in Section 5325 of the Welfare and Institutions Code, sterilization, abortion, or involuntary administration of psychiatric medication, as described in Section 2602.
(u)The Secretary of the Department of Corrections and Rehabilitation may adopt regulations as necessary to carry out the purposes of this section.
The Legislature finds and declares all of the following:
(a)In recognition of the dignity and privacy a person has a right to expect, the law recognizes that adults housed in state prison have the fundamental right to control decisions relating to their own health care, including the decision to have life-sustaining treatment withheld or withdrawn.
(b)The determination of capacity for informed consent for adults housed in state prison is more appropriately conducted at the institution where the patient is housed and can attend, if he or she desires.
(c)Because of the confinement of these adults and their frequent movement between institutions, existing protections for patients regarding health care decisionmaking are inadequate.
(d)Existing statutory schemes centered on life-threatening emergent illness and court-ordered decisionmakers do not adequately address the needs of adults housed in state prison to have their capacity issues addressed and adjudicated by a neutral third party, even in the absence of a serious or life-threatening medical emergency.
SEC. 2.Section 2604 is added to the Penal Code, to read:2604.(a)Except as provided in subdivision (b), an adult housed in state prison is presumed to have the capacity to give informed consent and make a health care decision, to give or revoke an advance health care directive, and to designate or disqualify a surrogate. This presumption is a presumption affecting the burden of proof.
(b)(1)Except as provided in Section 2602, a licensed physician or dentist may file a petition with the Office of Administrative Hearings to request that an administrative law judge make a determination as to a patients capacity to give informed consent or make a health care decision, and request appointment of a surrogate decisionmaker, if all of the following conditions are satisfied:
(A)The licensed physician or dentist is treating a patient who is an adult housed in state prison.
(B)The licensed physician or dentist is unable to obtain informed consent from the inmate patient because the physician or dentist determines that the inmate patient appears to lack capacity to give informed consent or make a health care decision.
(C)There is no person with legal authority to provide informed consent for, or make decisions concerning the health care of, the inmate patient.
(2)Preference shall be given to the next of kin or a family member as a surrogate decisionmaker over other potential surrogate decisionmakers unless those individuals are unsuitable or unable to serve.
(c)The petition required by subdivision (b) shall allege all of the following:
(1)The inmate patients current physical condition, describing the health care conditions currently afflicting the inmate patient.
(2)The inmate patients current mental health condition resulting in the inmate patients inability to understand the nature and consequences of his or her need for care such that there is a lack of capacity to give informed consent or make a health care decision.
(3)The deficit or deficits in the inmate patients mental functions as listed in subdivision (a) of Section 811 of the Probate Code.
(4)An identification of a link, if any, between the deficits identified pursuant to paragraph (3) and an explanation of how the deficits identified pursuant to that paragraph result in the inmate patients inability to participate in a decision about his or her health care either knowingly and intelligently or by means of a rational thought process.
(5)A discussion of whether the deficits identified pursuant to paragraph (3) are transient, fixed, or likely to change during the proposed year-long duration of the court order.
(6)The efforts made to obtain informed consent or refusal from the inmate patient and the results of those efforts.
(7)The efforts made to locate next of kin who could act as a surrogate decisionmaker for the inmate patient. If those individuals are located, all of the following shall also be included, so far as the information is known:
(A)The names and addresses of the individuals.
(B)Whether any information exists to suggest that any of those individuals would not act in the inmate patients best interests.
(C)Whether any of those individuals are otherwise suitable to make health care decisions for the inmate patient.
(8)The probable impact on the inmate patient with, or without, the appointment of a surrogate decisionmaker.
(9)A discussion of the inmate patients desires, if known, and whether there is an advance health care directive, Physicians Orders for Life Sustaining Treatment (POLST), or other documented indication of the inmate patients directives or desires and how those indications might influence the decision to issue an order. Additionally, any known POLST or Advanced Health Care Directives executed while the inmate patient had capacity shall be disclosed.
(10)The petitioners recommendation specifying a qualified and willing surrogate decisionmaker as described in subdivision (q), and the reasons for that recommendation.
(d)The petition shall be served on the inmate patient and his or her counsel, and filed with the Office of Administrative Hearings on the same day as it was served. The Office of Administrative Hearings shall issue a notice appointing counsel.
(e)(1)At the time the initial petition is filed, the inmate patient shall be provided with counsel and a written notice advising him or her of all of the following:
(A)His or her right to be present at the hearing.
(B)His or her right to be represented by counsel at all stages of the proceedings.
(C)His or her right to present evidence.
(D)His or her right to cross-examine witnesses.
(E)The right of either party to seek one reconsideration of the administrative law judges decision per calendar year.
(F)His or her right to file a petition for writ of administrative mandamus in superior court pursuant to Section 1094.5 of the Code of Civil Procedure.
(G)His or her right to file a petition for writ of habeas corpus in superior court with respect to any decision.
(2)Counsel for the inmate patient shall have access to all relevant medical and central file records for the inmate patient, but shall not have access to materials unrelated to medical treatment located in the confidential section of the inmate patients central file. Counsel shall also have access to all health care appeals filed by the inmate patient and responses to those appeals, and, to the extent available, any habeas corpus petitions or health care related litigation filed by, or on behalf of, the inmate patient.
(f)The inmate patient shall be provided with a hearing before an administrative law judge within 30 days of the date of filing the petition, unless counsel for the inmate patient agrees to extend the date of the hearing.
(g)The inmate patient, or his or her counsel, shall have 14 days from the date of filing of any petition to file a response to the petition, unless a shorter time for the hearing is sought by the licensed physician or dentist and ordered by the administrative law judge, in which case the judge shall set the time for filing a response. The response shall be served to all parties who were served with the initial petition and the attorney for the petitioner.
(h)In case of an emergency, as described in Section 3351 of Title 15 of the California Code of Regulations, the inmate patients physician or dentist may administer a medical intervention that requires informed consent prior to the date of the administrative hearing. Counsel for the inmate patient shall be notified by the physician or dentist.
(i)In either an initial or renewal proceeding, the inmate patient has the right to contest the finding of an administrative law judge authorizing a surrogate decisionmaker by filing a petition for writ of administrative mandamus pursuant to Section 1094.5 of the Code of Civil Procedure.
(j)In either an initial or renewal proceeding, either party is entitled to file one motion for reconsideration per calendar year in front of the administrative law judge following a determination as to an inmate patients capacity to give informed consent or make a health care decision. The motion may seek to review the decision for the necessity of a surrogate decisionmaker, the individual appointed under the order, or both. The motion for reconsideration shall not require a formal rehearing unless ordered by the administrative law judge following submission of the motion, or upon the granting of a request for formal rehearing by any party to the action based on a showing of good cause.
(k)(1)To renew an existing order appointing a surrogate decisionmaker, the current physician or dentist, or a previously appointed surrogate decisionmaker shall file a renewal petition. The renewal shall be for an additional year at a time. The renewal hearing on any order issued under this section shall be conducted prior to the expiration of the current order, but not sooner than 10 days after the petition is filed, at which time the inmate patient shall be brought before an administrative law judge for a review of his or her current medical and mental health condition.
(2)A renewal petition shall be served on the inmate patient and his or her counsel, and filed with the Office of Administrative Hearings on the same day as it was served. The Office of Administrative Hearings shall issue a written order appointing counsel.
(3)(A)The renewal hearing shall be held in accordance with subdivisions (d) to (g), inclusive.
(B)(i)At the time the renewal petition is filed, the inmate patient shall be provided with counsel and a written notice advising him or her of all of the following:
(I)His or her right to be present at the hearing.
(II)His or her right to be represented by counsel at all stages of the proceedings.
(III)His or her right to present evidence.
(IV)His or her right to cross-examine witnesses.
(V)The right of either party to seek one reconsideration of the administrative law judges decision per calendar year.
(VI)His or her right to file a petition for writ of administrative mandamus in superior court pursuant to Section 1094.5 of the Code of Civil Procedure.
(VII)His or her right to file a petition for writ of habeas corpus in superior court with respect to any decision.
(ii)Counsel for the inmate patient shall have access to all relevant medical and central file records for the inmate patient, but shall not have access to materials unrelated to medical treatment located in the confidential section of the inmate patients central file. Counsel shall also have access to all health care appeals filed by the inmate patient and responses to those appeals, and, to the extent available, any habeas corpus petitions or health care related litigation filed by, or on behalf of, the inmate patient.
(4)The renewal petition shall request the matter be reviewed by an administrative law judge, and allege all of the following:
(A)The current status of each of the elements set forth in paragraphs (1) to (8), inclusive, of subdivision (c).
(B)Whether the inmate patient still requires a surrogate decisionmaker.
(C)Whether the inmate patient continues to lack capacity to give informed consent or make a health care decision.
(l)A licensed physician or dentist who submits a petition pursuant to this section shall not be required to obtain a court order pursuant to Section 3201 of the Probate Code prior to administering care that requires informed consent.
(m)This section does not affect the right of an inmate patient who has been determined to lack capacity to give informed consent or make a health care decision and for whom a surrogate decisionmaker has been appointed to do either of the following:
(1)Seek appropriate judicial relief to review the determination or appointment by filing a petition for writ of administrative mandamus pursuant to Section 1094.5 of the Code of Civil Procedure.
(2)File a petition for writ of habeas corpus in superior court regarding the determination or appointment, or any treatment decision by the surrogate decisionmaker.
(n)A licensed physician or other health care provider whose actions under this section are in accordance with reasonable health care standards, a surrogate decisionmaker appointed pursuant to this section, and an administrative law judge shall not be liable for monetary damages or administrative sanctions for his or her decisions or actions consistent with this section and the known and documented desires of the inmate patient, or if unknown, the best interests of the inmate patient.
(o)The determinations required to be made pursuant to subdivisions (c) and (k), and the basis for those determinations, shall be documented in the inmate patients medical record.
(p)(1)With regard to any petition filed pursuant to subdivision (c) or (k), the administrative law judge shall determine and provide a written order and findings setting forth whether there has been clear and convincing evidence that all of the following occurred:
(A)Adequate notice and an opportunity to be heard has been given to the inmate patient and his or her counsel.
(B)Reasonable efforts have been made to obtain informed consent from the inmate patient.
(C)As a result of one or more deficits in his or her mental functions, the inmate patient lacks capacity to give informed consent or make a health care decision and is unlikely to regain that capacity over the next year.
(D)Reasonable efforts have been made to identify family members or relatives who could serve as a surrogate decisionmaker for the inmate patient.
(2)The written decision shall also specify and describe any advance health care directives, POLST, or other documented indication of the inmate patients directives or desires regarding health care that were created and validly executed while the inmate patient had capacity.
(q)(1)If all findings required by subdivision (p) are made, the administrative law judge shall appoint a surrogate decisionmaker for health care for the inmate patient. In doing so, the administrative law judge shall consider all reasonable options presented, including those identified in the petition, and weigh how the proposed surrogate decisionmaker would represent the best interests of the inmate patient, the efficacy of achieving timely surrogate decisions, and the urgency of the situation. Family members or relatives of the inmate patient should be appointed when possible if such an individual is available and the administrative law judge determines the family member or relative will act in the inmate patients best interests.
(2)An employee or contract staff of the Department of Corrections and Rehabilitation, or other peace officer, shall not be appointed surrogate decisionmaker for health care for any inmate patient under this section, unless either of the following conditions apply:
(A)The individual is a family member or relative of the inmate patient and will, as determined by the administrative law judge, act in the inmate patients best interests. interests and consider the inmate patients personal values and other wishes to the extent those values and wishes are known.
(B)The individual is a health care staff member in a managerial position and does not provide direct care to the inmate patient. A surrogate decisionmaker appointed under this subparagraph may be specified by his or her functional role at the institution, such as Chief Physician and Surgeon or Chief Medical Executive to provide clarity as to the active decisionmaker at the institution where the inmate patient is housed, and to anticipate potential personnel changes. When the surrogate decisionmaker is specified by position, rather than by name, the person occupying that specified role at the institution at which the inmate patient is currently housed shall be considered and act as the appointed surrogate decisionmaker.
(3)The order appointing the surrogate decisionmaker shall be written and state the basis for the decision by reference to the particular mandates of this subdivision. The order shall also state that the surrogate decisionmaker shall honor and follow any advance health care directive, POLST, or other documented indication of the inmate patients directives or desires, and specify any such directive, order, or documented desire.
(4)The surrogate decisionmaker shall follow the inmate patients personal values and other wishes to the extent those values and wishes are known.
(r)The administrative law judges written decision and order appointing a surrogate decisionmaker shall be placed in the inmate patients Department of Corrections and Rehabilitation health care record.
(s)An order entered under this section is valid for one year and the expiration date shall be written on the order. The order shall be valid at any state correctional facility within California. If the inmate patient is moved, the sending institution shall inform the receiving institution of the existence of an order entered under this section.
(t)(1)This section applies only to orders appointing a surrogate decisionmaker with authority to make a health care decision for an inmate patient who lacks capacity to give informed consent or make a health care decision.
(2)This section does not apply to existing law regarding health care to be provided in an emergency or existing law governing health care for unemancipated minors. This section shall not be used for the purposes of determining or directing an inmate patients control over finances, marital status, or for convulsive treatment, as described in Section 5325 of the Welfare and Institutions Code, psychosurgery, as defined in Section 5325 of the Welfare and Institutions Code, sterilization, abortion, or involuntary administration of psychiatric medication, as described in Section 2602.
(u)The Secretary of the Department of Corrections and Rehabilitation may adopt regulations as necessary to carry out the purposes of this section.
The Legislature finds and declares all of the following:
(a)In recognition of the dignity and privacy a person has a right to expect, the law recognizes that adults housed in state prison have the fundamental right to control decisions relating to their own health care, including the decision to have life-sustaining treatment withheld or withdrawn.
(b)The determination of capacity for informed consent for adults housed in state prison is more appropriately conducted at the institution where the patient is housed and can attend, if he or she desires.
(c)Because of the confinement of these adults and their frequent movement between institutions, existing protections for patients regarding health care decisionmaking are inadequate.
(d)Existing statutory schemes centered on life-threatening emergent illness and court-ordered decisionmakers do not adequately address the needs of adults housed in state prison to have their capacity issues addressed and adjudicated by a neutral third party, even in the absence of a serious or life-threatening medical emergency.
SEC. 2.Section 2604 is added to the Penal Code, to read:2604.(a)Except as provided in subdivision (b), an adult housed in state prison is presumed to have the capacity to give informed consent and make a health care decision, to give or revoke an advance health care directive, and to designate or disqualify a surrogate. This presumption is a presumption affecting the burden of proof.
(b)(1)Except as provided in Section 2602, a licensed physician or dentist may file a petition with the Office of Administrative Hearings to request that an administrative law judge make a determination as to a patients capacity to give informed consent or make a health care decision, and request appointment of a surrogate decisionmaker, if all of the following conditions are satisfied:
(A)The licensed physician or dentist is treating a patient who is an adult housed in state prison.
(B)The licensed physician or dentist is unable to obtain informed consent from the inmate patient because the physician or dentist determines that the inmate patient appears to lack capacity to give informed consent or make a health care decision.
(C)There is no person with legal authority to provide informed consent for, or make decisions concerning the health care of, the inmate patient.
(2)Preference shall be given to the next of kin or a family member as a surrogate decisionmaker over other potential surrogate decisionmakers unless those individuals are unsuitable or unable to serve.
(c)The petition required by subdivision (b) shall allege all of the following:
(1)The inmate patients current physical condition, describing the health care conditions currently afflicting the inmate patient.
(2)The inmate patients current mental health condition resulting in the inmate patients inability to understand the nature and consequences of his or her need for care such that there is a lack of capacity to give informed consent or make a health care decision.
(3)The deficit or deficits in the inmate patients mental functions as listed in subdivision (a) of Section 811 of the Probate Code.
(4)An identification of a link, if any, between the deficits identified pursuant to paragraph (3) and an explanation of how the deficits identified pursuant to that paragraph result in the inmate patients inability to participate in a decision about his or her health care either knowingly and intelligently or by means of a rational thought process.
(5)A discussion of whether the deficits identified pursuant to paragraph (3) are transient, fixed, or likely to change during the proposed year-long duration of the court order.
(6)The efforts made to obtain informed consent or refusal from the inmate patient and the results of those efforts.
(7)The efforts made to locate next of kin who could act as a surrogate decisionmaker for the inmate patient. If those individuals are located, all of the following shall also be included, so far as the information is known:
(A)The names and addresses of the individuals.
(B)Whether any information exists to suggest that any of those individuals would not act in the inmate patients best interests.
(C)Whether any of those individuals are otherwise suitable to make health care decisions for the inmate patient.
(8)The probable impact on the inmate patient with, or without, the appointment of a surrogate decisionmaker.
(9)A discussion of the inmate patients desires, if known, and whether there is an advance health care directive, Physicians Orders for Life Sustaining Treatment (POLST), or other documented indication of the inmate patients directives or desires and how those indications might influence the decision to issue an order. Additionally, any known POLST or Advanced Health Care Directives executed while the inmate patient had capacity shall be disclosed.
(10)The petitioners recommendation specifying a qualified and willing surrogate decisionmaker as described in subdivision (q), and the reasons for that recommendation.
(d)The petition shall be served on the inmate patient and his or her counsel, and filed with the Office of Administrative Hearings on the same day as it was served. The Office of Administrative Hearings shall issue a notice appointing counsel.
(e)(1)At the time the initial petition is filed, the inmate patient shall be provided with counsel and a written notice advising him or her of all of the following:
(A)His or her right to be present at the hearing.
(B)His or her right to be represented by counsel at all stages of the proceedings.
(C)His or her right to present evidence.
(D)His or her right to cross-examine witnesses.
(E)The right of either party to seek one reconsideration of the administrative law judges decision per calendar year.
(F)His or her right to file a petition for writ of administrative mandamus in superior court pursuant to Section 1094.5 of the Code of Civil Procedure.
(G)His or her right to file a petition for writ of habeas corpus in superior court with respect to any decision.
(2)Counsel for the inmate patient shall have access to all relevant medical and central file records for the inmate patient, but shall not have access to materials unrelated to medical treatment located in the confidential section of the inmate patients central file. Counsel shall also have access to all health care appeals filed by the inmate patient and responses to those appeals, and, to the extent available, any habeas corpus petitions or health care related litigation filed by, or on behalf of, the inmate patient.
(f)The inmate patient shall be provided with a hearing before an administrative law judge within 30 days of the date of filing the petition, unless counsel for the inmate patient agrees to extend the date of the hearing.
(g)The inmate patient, or his or her counsel, shall have 14 days from the date of filing of any petition to file a response to the petition, unless a shorter time for the hearing is sought by the licensed physician or dentist and ordered by the administrative law judge, in which case the judge shall set the time for filing a response. The response shall be served to all parties who were served with the initial petition and the attorney for the petitioner.
(h)In case of an emergency, as described in Section 3351 of Title 15 of the California Code of Regulations, the inmate patients physician or dentist may administer a medical intervention that requires informed consent prior to the date of the administrative hearing. Counsel for the inmate patient shall be notified by the physician or dentist.
(i)In either an initial or renewal proceeding, the inmate patient has the right to contest the finding of an administrative law judge authorizing a surrogate decisionmaker by filing a petition for writ of administrative mandamus pursuant to Section 1094.5 of the Code of Civil Procedure.
(j)In either an initial or renewal proceeding, either party is entitled to file one motion for reconsideration per calendar year in front of the administrative law judge following a determination as to an inmate patients capacity to give informed consent or make a health care decision. The motion may seek to review the decision for the necessity of a surrogate decisionmaker, the individual appointed under the order, or both. The motion for reconsideration shall not require a formal rehearing unless ordered by the administrative law judge following submission of the motion, or upon the granting of a request for formal rehearing by any party to the action based on a showing of good cause.
(k)(1)To renew an existing order appointing a surrogate decisionmaker, the current physician or dentist, or a previously appointed surrogate decisionmaker shall file a renewal petition. The renewal shall be for an additional year at a time. The renewal hearing on any order issued under this section shall be conducted prior to the expiration of the current order, but not sooner than 10 days after the petition is filed, at which time the inmate patient shall be brought before an administrative law judge for a review of his or her current medical and mental health condition.
(2)A renewal petition shall be served on the inmate patient and his or her counsel, and filed with the Office of Administrative Hearings on the same day as it was served. The Office of Administrative Hearings shall issue a written order appointing counsel.
(3)(A)The renewal hearing shall be held in accordance with subdivisions (d) to (g), inclusive.
(B)(i)At the time the renewal petition is filed, the inmate patient shall be provided with counsel and a written notice advising him or her of all of the following:
(I)His or her right to be present at the hearing.
(II)His or her right to be represented by counsel at all stages of the proceedings.
(III)His or her right to present evidence.
(IV)His or her right to cross-examine witnesses.
(V)The right of either party to seek one reconsideration of the administrative law judges decision per calendar year.
(VI)His or her right to file a petition for writ of administrative mandamus in superior court pursuant to Section 1094.5 of the Code of Civil Procedure.
(VII)His or her right to file a petition for writ of habeas corpus in superior court with respect to any decision.
(ii)Counsel for the inmate patient shall have access to all relevant medical and central file records for the inmate patient, but shall not have access to materials unrelated to medical treatment located in the confidential section of the inmate patients central file. Counsel shall also have access to all health care appeals filed by the inmate patient and responses to those appeals, and, to the extent available, any habeas corpus petitions or health care related litigation filed by, or on behalf of, the inmate patient.
(4)The renewal petition shall request the matter be reviewed by an administrative law judge, and allege all of the following:
(A)The current status of each of the elements set forth in paragraphs (1) to (8), inclusive, of subdivision (c).
(B)Whether the inmate patient still requires a surrogate decisionmaker.
(C)Whether the inmate patient continues to lack capacity to give informed consent or make a health care decision.
(l)A licensed physician or dentist who submits a petition pursuant to this section shall not be required to obtain a court order pursuant to Section 3201 of the Probate Code prior to administering care that requires informed consent.
(m)This section does not affect the right of an inmate patient who has been determined to lack capacity to give informed consent or make a health care decision and for whom a surrogate decisionmaker has been appointed to do either of the following:
(1)Seek appropriate judicial relief to review the determination or appointment by filing a petition for writ of administrative mandamus pursuant to Section 1094.5 of the Code of Civil Procedure.
(2)File a petition for writ of habeas corpus in superior court regarding the determination or appointment, or any treatment decision by the surrogate decisionmaker.
(n)A licensed physician or other health care provider whose actions under this section are in accordance with reasonable health care standards, a surrogate decisionmaker appointed pursuant to this section, and an administrative law judge shall not be liable for monetary damages or administrative sanctions for his or her decisions or actions consistent with this section and the known and documented desires of the inmate patient, or if unknown, the best interests of the inmate patient.
(o)The determinations required to be made pursuant to subdivisions (c) and (k), and the basis for those determinations, shall be documented in the inmate patients medical record.
(p)(1)With regard to any petition filed pursuant to subdivision (c) or (k), the administrative law judge shall determine and provide a written order and findings setting forth whether there has been clear and convincing evidence that all of the following occurred:
(A)Adequate notice and an opportunity to be heard has been given to the inmate patient and his or her counsel.
(B)Reasonable efforts have been made to obtain informed consent from the inmate patient.
(C)As a result of one or more deficits in his or her mental functions, the inmate patient lacks capacity to give informed consent or make a health care decision and is unlikely to regain that capacity over the next year.
(D)Reasonable efforts have been made to identify family members or relatives who could serve as a surrogate decisionmaker for the inmate patient.
(2)The written decision shall also specify and describe any advance health care directives, POLST, or other documented indication of the inmate patients directives or desires regarding health care that were created and validly executed while the inmate patient had capacity.
(q)(1)If all findings required by subdivision (p) are made, the administrative law judge shall appoint a surrogate decisionmaker for health care for the inmate patient. In doing so, the administrative law judge shall consider all reasonable options presented, including those identified in the petition, and weigh how the proposed surrogate decisionmaker would represent the best interests of the inmate patient, the efficacy of achieving timely surrogate decisions, and the urgency of the situation. Family members or relatives of the inmate patient should be appointed when possible if such an individual is available and the administrative law judge determines the family member or relative will act in the inmate patients best interests.
(2)An employee or contract staff of the Department of Corrections and Rehabilitation, or other peace officer, shall not be appointed surrogate decisionmaker for health care for any inmate patient under this section, unless either of the following conditions apply:
(A)The individual is a family member or relative of the inmate patient and will, as determined by the administrative law judge, act in the inmate patients best interests.
(B)The individual is a health care staff member in a managerial position and does not provide direct care to the inmate patient. A surrogate decisionmaker appointed under this subparagraph may be specified by his or her functional role at the institution, such as Chief Physician and Surgeon or Chief Medical Executive to provide clarity as to the active decisionmaker at the institution where the inmate patient is housed, and to anticipate potential personnel changes. When the surrogate decisionmaker is specified by position, rather than by name, the person occupying that specified role at the institution at which the inmate patient is currently housed shall be considered and act as the appointed surrogate decisionmaker.
(3)The order appointing the surrogate decisionmaker shall be written and state the basis for the decision by reference to the particular mandates of this subdivision. The order shall also state that the surrogate decisionmaker shall honor and follow any advance health care directive, POLST, or other documented indication of the inmate patients directives or desires, and specify any such directive, order, or documented desire.
(r)The administrative law judges written decision and order appointing a surrogate decisionmaker shall be placed in the inmate patients Department of Corrections and Rehabilitation health care record.
(s)An order entered under this section is valid for one year and the expiration date shall be written on the order. The order shall be valid at any state correctional facility within California. If the inmate patient is moved, the sending institution shall inform the receiving institution of the existence of an order entered under this section.
(t)(1)This section applies only to orders appointing a surrogate decisionmaker with authority to make a health care decision for an inmate patient who lacks capacity to give informed consent or make a health care decision.
(2)This section does not apply to existing law regarding health care to be provided in an emergency or existing law governing health care for unemancipated minors. This section shall not be used for the purposes of determining or directing an inmate patients control over finances, marital status, or for convulsive treatment, as described in Section 5325 of the Welfare and Institutions Code, psychosurgery, as defined in Section 5325 of the Welfare and Institutions Code, sterilization, abortion, or involuntary administration of psychiatric medication, as described in Section 2602.
(u)The Secretary of the Department of Corrections and Rehabilitation may adopt regulations as necessary to carry out the purposes of this section.
SECTION 1.It is the intent of the Legislature to enact legislation that would establish a process for obtaining consent to release information to the relatives of, and to obtain consent for a proposed course of treatment for, a person sentenced to imprisonment in the state prison who is suffering from a debilitating, but not life-threatening, condition during his or her term of imprisonment.
It is the intent of the Legislature to enact legislation that would establish a process for obtaining consent to release information to the relatives of, and to obtain consent for a proposed course of treatment for, a person sentenced to imprisonment in the state prison who is suffering from a debilitating, but not life-threatening, condition during his or her term of imprisonment.
|
Date
|
Status
|
|---|---|
| May 22, 2015 | Read third time. Passed. Ordered to the Senate. |
| Sep 30, 2015 | Chaptered by Secretary of State - Chapter 381, Statutes of 2015. |
| Sep 30, 2015 | Approved by the Governor. |
| Sep 16, 2015 | Enrolled and presented to the Governor at 4 p.m. |
| Sep 2, 2015 | Read third time. Passed. Ordered to the Assembly. (Ayes 39. Noes 0. Page 2433.). |
| Sep 2, 2015 | Read third time. Passed. Ordered to the Assembly. |
| Sep 2, 2015 | In Assembly. Ordered to Engrossing and Enrolling. |
| Aug 31, 2015 | Read second time. Ordered to third reading. |
| Aug 27, 2015 | From committee: Do pass. (Ayes 7. Noes 0.) (August 27). |
| Aug 17, 2015 | In committee: Referred to APPR. suspense file. |
| Jul 7, 2015 | From committee: Do pass and re-refer to Com. on APPR. (Ayes 6. Noes 0.) (July 7). Re-referred to Com. on APPR. |
| Jun 4, 2015 | Referred to Com. on PUB. S. |
| May 22, 2015 | Read third time. Passed. Ordered to the Senate. (Ayes 74. Noes 0. Page 1564.) |
| Feb 27, 2015 | Introduced. To print. |
| May 22, 2015 | In Senate. Read first time. To Com. on RLS. for assignment. |
| May 14, 2015 | Read second time. Ordered to Consent Calendar. |
| May 13, 2015 | From committee: Do pass. To Consent Calendar. (Ayes 17. Noes 0.) (May 13). |
| Apr 29, 2015 | From committee: Do pass and re-refer to Com. on APPR. with recommendation: To Consent Calendar. (Ayes 19. Noes 0.) (April 28). Re-referred to Com. on APPR. |
| Apr 21, 2015 | Re-referred to Com. on HEALTH. |
| Apr 20, 2015 | From committee chair, with author's amendments: Amend, and re-refer to Com. on HEALTH. Read second time and amended. |
| Apr 15, 2015 | From committee: Do pass and re-refer to Com. on HEALTH. (Ayes 6. Noes 0.) (April 14). Re-referred to Com. on HEALTH. |
| Apr 6, 2015 | Re-referred to Com. on PUB. S. |
| Mar 26, 2015 | Referred to Coms. on PUB. S. and HEALTH. |
| Mar 26, 2015 | From committee chair, with author's amendments: Amend, and re-refer to Com. on PUB. S. Read second time and amended. |
| Mar 2, 2015 | Read first time. |
| Mar 1, 2015 | From printer. May be heard in committee March 31. |
|
Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Sep 2, 2015 | Assembly 3rd Reading AB1423 Mark Stone By Glazer | Senate Floor |
Passed |
|
| Aug 27, 2015 | Do pass | Senate Standing Committee on Appropriations |
Passed |
|
| Aug 17, 2015 | Placed on suspense file | Senate Standing Committee on Appropriations |
Passed |
|
| Jul 7, 2015 | Do pass, but first be re-referred to the Committee on [Appropriations] | Senate Standing Committee on Public Safety |
Passed |
|
| May 22, 2015 | AB 1423 STONE Consent Calendar Second Day Regular Session | Assembly Floor |
Passed |
|
| May 13, 2015 | Do pass. To Consent Calendar. | Assembly Standing Committee on Appropriations |
Passed |
|
| Apr 28, 2015 | Do pass and be re-referred to the Committee on [Appropriations] with recommendation: To Consent Calendar | Assembly Standing Committee on Health |
Passed |
|
| Apr 14, 2015 | Do pass and be re-referred to the Committee on [Health] | Assembly Standing Committee on Public Safety |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
|
Organization
|
Position
|
Date
|
|---|---|---|
| California Correctional Health Care Services | ** Support | Sep 2, 2015 |
| California Public Defenders Association | ** Support | Sep 2, 2015 |
| Disability Rights California | ** Against | Aug 17, 2015 |
| Prison Law Office | ** Support | Sep 2, 2015 |
| PUB. S. | ** Against | Aug 17, 2015 |
AB 1423
Page 8
|
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 |
THIRD READING
Bill No: AB 1423
Amended: 4/20/15 in Assembly
SENATE PUBLIC SAFETY COMMITTEE: 6-0, 7/7/15
AYES: Hancock, Glazer, Leno, Liu, Monning, Stone
NO VOTE RECORDED: Anderson
SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/27/15
AYES: Lara, Bates, Beall, Hill, Leyva, Mendoza, Nielsen
ASSEMBLY FLOOR: 74-0, 5/22/15 (Consent) - See last page for vote
SUBJECT: Prisoners: medical treatment
DIGEST: This bill creates a new process for appointing a person to make medical care decisions on behalf of a prison inmate who is not competent to make such decisions, as specified.
Existing law:
Specifies that a petition may be filed to determine that a patient has the capacity to make a healthcare decision concerning an existing or continuing condition. A petition may also be filed to determine that a patient lacks the capacity to make a healthcare decision concerning specified treatment for an existing or continuing condition, and further for an order authorizing a designated person to make a healthcare decision on behalf of the patient. (Probate Code § 3201.)
Provides, in Probate Code section 3202, that a petition to determine capacity to make healthcare decisions may be filed in the superior court, as specified.
Specifies, in Probate Code section 3203, that certain, listed individuals, may file a petition to determine whether a patient has capacity to make healthcare decisions.
Specifies, in Probate Code section 3204, that the contents of the petition should state or set forth, by a medical declaration attached to the petition, the following:
The condition of the patient’s health that requires treatment;
The recommended healthcare that is considered to be medically appropriate;
The threat to the patient’s condition if authorization for the recommended healthcare is delayed or denied by the court;
The predictable or probable outcome of the recommended healthcare;
The medically available alternatives, if any, to the recommended healthcare;
The efforts made to obtain consent from the patient;
If the petition is filed by a person on behalf of a healthcare institution, the name of the person to be designated to give consent to the recommended healthcare on behalf of the patient;
The deficit or deficits in the patient’s mental functions that are impaired, and an identification of a link between the deficit or deficits and the patient's inability to respond knowingly and intelligently to queries about the recommended healthcare or inability to participate in a decision about the recommended healthcare by means of a rational thought process; and,
The names and addresses, so far as they are known to the petitioner, of the persons specified.
Provides, upon the filing of the petition, the court shall determine the name of the attorney the patient has retained to represent the patient in the proceeding under this part or the name of the attorney the patient plans to retain for that purpose. If the patient has not retained an attorney and does not plan to retain one, the court shall appoint the public defender or private counsel to consult with and represent the patient at the hearing on the petition and, if such appointment is made. (Probate Code § 3205.)
Provides specified notification procedures for a hearing on capacity to make healthcare decisions. (Probate Code § 3206.)
States, in Probate Code section 3208, that, except as specified, the court may issue an order authorizing the recommended healthcare for the patient, and designating a person to give consent to the recommended healthcare on behalf of the patient, if the court determines from the evidence:
The existing or continuing condition of the patient's health requires the recommended healthcare;
If untreated, there is a probability that the condition will become life-endangering or result in a serious threat to the physical or mental health of the patient;
The patient is unable to consent to the recommended healthcare;
In determining whether the patient’s mental functioning is so severely impaired that the patient lacks the capacity to make any healthcare decision, the court may take into consideration the frequency, severity, and duration of periods of impairment;
The court may make an order authorizing withholding or withdrawing artificial nutrition and hydration, and all other forms of healthcare, and designating a person to give or withhold consent to the recommended healthcare on behalf of the patient, if the court determines from the evidence all of the following:
The recommended healthcare is in accordance with the patient’s best interest, taking into consideration the patient’s personal values to the extent known to the petitioner.
The patient is unable to consent to the recommended healthcare.
This bill:
Permits a licensed physician or dentist to file a petition with the Office of Administrative Hearings (OAH) to request that an administrative law judge (ALJ) make a determination as to an inmate patient’s capacity to give informed consent or make a health care decision, and request appointment of a surrogate decision maker, if all of the following conditions are satisfied:
The licensed physician or dentist is treating a patient who is an adult housed in state prison;
The licensed physician or dentist is unable to obtain informed consent from the inmate patient because the physician or dentist determines that the inmate patient appears to lack capacity to give informed consent or make a health care decision; and,
There is no person with legal authority to provide informed consent for, or make decisions concerning the health care of, the inmate patient.
Requires the next of kin or a family member to be given preference as a surrogate decision maker over other potential surrogate decision makers unless those individuals are unsuitable or unable to serve.
Specifies the requirements of the petition filed by a licensed physician or dentist.
Requires the petition to be served on the inmate patient and his or her counsel, and filed with the OAH on the same day as it was served.
Requires the OAH to issue a notice appointing counsel.
Requires, at the time the initial petition is filed, the inmate patient to be provided with counsel and a written notice advising him or her of his or her rights, as specified.
Prohibits counsel for the inmate patient from having access to materials unrelated to medical treatment located in the confidential section of the inmate patient’s central file.
Requires counsel for the inmate patient to have access to all health care appeals filed by the inmate patient and responses to those appeals, and, to the extent available, any habeas corpus petitions or health care related litigation filed by, or on behalf of, the inmate patient.
Requires the inmate patient to be provided with a hearing before an ALJ within 30 days of the date of filing the petition, unless counsel for the inmate patient agrees to extend the date of the hearing.
Requires the inmate patient, or his or her counsel, to be given 14 days from the date of filing of any petition to file a response to the petition, unless a shorter time for the hearing is sought by the licensed physician or dentist and ordered by the ALJ, in which case the judge shall set the time for filing a response.
Requires the response to be served to all parties who were served with the initial petition and the attorney for the petitioner.
Permits the inmate patient’s physician or dentist to administer a medical intervention that requires informed consent prior to the date of the administrative hearing, in the event of a health care emergency.
Specifies that, in either an initial or renewal proceeding, the inmate patient has the right to contest the finding of an ALJ authorizing a surrogate decision maker by filing a petition for writ of administrative mandamus.
Permits, in either an initial or renewal proceeding, either party to file one motion for reconsideration per calendar year in front of the ALJ following a determination as to an inmate patient’s capacity to give informed consent or make a health care decision. The motion may seek to review the decision for the necessity of a surrogate decision maker, the individual appointed under the order, or both. And, prohibits the motion for reconsideration from requiring formal rehearing unless ordered by the ALJ following submission of the motion, or upon the granting of a request for formal rehearing by any party to the action based on a showing of good cause.
Permits annual renewals of existing orders appointing a surrogate decision maker, as specified.
Requires the current physician, dentist, or previous surrogate decision maker to file a renewal petition in order to renew an existing order appointing a surrogate decision maker.
Requires a renewal hearing to be conducted prior to the expiration of the current order, but not sooner than 10 days after the petition is filed, at which time the inmate patient shall be brought before an ALJ for a review of his or her current medical and mental health condition.
Requires the renewal petition to be reviewed by an ALJ, and to include whether the inmate patient still requires a surrogate decision maker and whether the inmate patient continues to lack capacity to give informed consent or make a health care decision.
Specifies that a licensed physician or dentist who submits a renewal petition is not required to obtain a court order prior to administering care that requires informed consent.
Permits, if certain findings are made, the ALJ to appoint a surrogate decision maker for health care for the inmate patient.
Prohibits an employee or contract staff of California Department of Corrections and Rehabilitation (CDCR) or other peace officer, from being appointed surrogate decision maker for health care for any inmate patient unless either of the following conditions apply:
The individual is a family member or relative of the inmate patient and will, as determined by the ALJ, act in the inmate patient’s best interests.
The individual is a health care staff member in a managerial position and does not provide direct care to the inmate patient, as specified.
Requires the ALJ’s written decision and order appointing a surrogate decision maker to be placed in the inmate patient’s health care record.
Background
CDCR prison census data indicates there is a growing population of elderly inmates, a population that, as the author notes, has increasingly complicated and acute medical conditions.
The existing conservatorship process presents a number of hurdles for prison medical staff attempting to conserve inmates. This process requires that staff go through the superior court of the county in which the inmate is housed whenever a medical emergency arises, or an episodic injury occurs that incapacitates an inmate. Going through this process takes six weeks to six months. During that period, while the inmate is incapacitated, prison officials are unable to update the inmate’s family members as to his or her condition because of the federal Health Insurance Portability and Accountability Act (HIPAA). HIPAA protects patient confidentiality through strict restrictions on dissemination of information. Due to the fact that these patients often do not have advanced healthcare directives, healthcare information cannot be dissemination until a court issues an order.
This bill creates a new process with existing procedures in the prison system. That is, under existing practices administrative law judges already hold hearings in California State Prisons, called Keyea hearings. Permitting healthcare decisions to be heard at these administrative proceedings would arguably shorten the existing wait times, which will benefit inmate-patients and their families.
[NOTE: See Senate Public Safety Committee analysis for a full discussion]
FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No
According to the Senate Appropriations Committee, the fiscal impact includes:
Potential one-time costs of about $100,000 (General Fund) to CDCR to the extent regulations are developed for this process.
Future minor net cost savings of about $20,000 (General Fund) annually resulting from reduced CDCR administrative costs formerly incurred to participate in probate court proceedings.
Potential future cost savings (General Fund) to the California Correctional Health Care Services resulting from the revised process.
Minor, absorbable costs (General Fund) to the Office of Administrative Hearings (OAH) to contract with CDCR for this process.
California Association of Public Administrators, Public Guardians, and Public Conservators
California Correctional Health Care Services
California Public Defenders Association
Prison Law Office
OPPOSITION: (Verified 8/28/15)
None received
ARGUMENTS IN SUPPORT: According to California Correctional Health Care Services:
Currently state prisoners over the age of 50 are the fastest growing segment of the prison population. As these prisoners age, many lose the capacity to make medical determinations on their own, due to dementia, strokes, and other debilitating medical conditions. Under existing law, prison officials are required to go through the process under Probate Code Section 3200, which requires a Superior court hearing to appoint an individual responsible for making medical determinations for the prisoner.
The bill is a common sense measure that will provide added benefit to the inmate population by speeding up the process for obtaining the necessary authority to provide treatment services in cases where the inmate lacks decision making capability.
ASSEMBLY FLOOR: 74-0, 5/22/15
AYES: Achadjian, Travis Allen, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, Patterson, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Wilk, Williams, Wood, Atkins
NO VOTE RECORDED: Alejo, Jones, O'Donnell, Olsen, Waldron, Weber
Prepared by: Jessica Devencenzi / PUB. S. /
8/30/15 19:12:10
**** END ****
AB 1423 (Mark Stone) Page 4 of 4
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2015 - 2016 Regular Session
AB 1423 (Mark Stone) - Prisoners: medical treatment
|
|
Version: April 20, 2015 |
Policy Vote: PUB. S. 6 - 0 |
Urgency: No |
Mandate: No |
Hearing Date: August 17, 2015 |
Consultant: Jolie Onodera |
This bill meets the criteria for referral to the Suspense File.
Bill Summary:
This bill would create a process for appointing a person to make health care decisions on behalf of a state prison inmate who lacks the capacity to give informed consent or make health care decisions, as specified.
Fiscal Impact:
Potential one-time costs of about $100,000 (General Fund) to the Department of Corrections and Rehabilitation (CDCR) to the extent regulations are developed for this process.
Future minor net cost savings of about $20,000 (General Fund) annually resulting from reduced CDCR administrative costs formerly incurred to participate in probate court proceedings.
Potential future cost savings (General Fund) to the CCHCS resulting from the revised process.
Minor, absorbable costs (General Fund) to the Office of Administrative Hearings (OAH) to contract with CDCR for this process.
Background:
Under existing law, in order to obtain authority for a designated person to make health care decisions on behalf of a patient, a petition must be filed in court pursuant to Section 3201 of the Probate Code. In the case of prison inmates, prison officials are required to proceed through the superior court of the county in which the inmate is housed whenever a medical emergency arises or an episodic injury occurs that incapacitates the inmate. This process can take up to several months, delaying the ability of staff to both treat the inmate as well as inform the inmate’s family members due to federal privacy protections under the Health Insurance Portability and Accountability Act (HIPAA).
This bill seeks to provide additional benefits to inmate-patients and their families by streamlining the existing process for obtaining the necessary authority to provide necessary treatment services to inmates in circumstances in which the inmate lacks the capability to make such decisions while at the same time preserving the inmate’s due process rights.
Proposed Law:
This bill would create a new process for appointing a “surrogate decisionmaker” to make health care decisions on behalf of a prison inmate, as follows:
Establishes a presumption that unless otherwise specified, an adult housed in state prison is presumed to have the capacity to give informed consent and make a health care decision, to give or revoke an advance health care directive, and to designate or disqualify a surrogate.
Permits a licensed physician or dentist to file a petition with the Office of Administrative Hearings (OAH) to request that an administrative law judge (ALJ) make a determination as to an inmate patient’s capacity to give informed consent or make a health care decision, and request appointment of a surrogate decisionmaker, if all of the following conditions are satisfied:
The licensed physician or dentist is treating a patient who is an adult housed in state prison;
The licensed physician or dentist is unable to obtain informed consent from the inmate patient because the physician or dentist determines that the inmate patient appears to lack capacity to give informed consent or make a health care decision; and,
There is no person with legal authority to provide informed consent for, or make decisions concerning the health care of, the inmate patient.
Requires the next of kin or a family member to be given preference as a surrogate decisionmaker over other potential surrogate decisionmakers unless those individuals are unsuitable or unable to serve.
Specifies the requirements of the petition filed by a licensed physician or dentist, must include various information including the inmate patient’s current physical and health care condition and current mental health condition resulting in the inmate patient’s inability to understand the nature and consequences of his or her need for care.
Requires the petition to be served on the inmate patient and his or her counsel, and filed with the OAH on the same day as it was served.
Requires the OAH to issue a notice appointing counsel, and at the time the initial petition is filed, the inmate patient to be provided with counsel and a written notice advising him or her of specified due process rights.
Requires counsel for the inmate patient to have access to all relevant medical and central file records for the inmate patient.
Requires the inmate patient to be provided with a hearing before an ALJ within 30 days of the date of filing the petition, and to be given 14 days from the date of filing of any petition to file a response to the petition, as specified.
Requires the response to be served to all parties who were served with the initial petition and the attorney for the petitioner.
Permits the inmate patient’s physician or dentist to administer a medical intervention that requires informed consent prior to the date of the administrative hearing, in the event of a health care emergency.
Specifies that, in either an initial or renewal proceeding, the inmate patient has the right to contest the finding of an ALJ authorizing a surrogate decisionmaker by filing a petition for writ of administrative mandamus.
Permits, in either an initial or renewal proceeding, either party to file one motion for reconsideration per calendar year in front of the ALJ following a determination as to an inmate patient’s capacity to give informed consent or make a health care decision.
Permits annual renewals of existing orders appointing a surrogate decisionmaker, as specified.
Requires a renewal hearing to be conducted prior to the expiration of the current order, but not sooner than 10 days after the petition is filed, at which time the inmate patient shall be brought before an ALJ for a review of his or her current medical and mental health condition.
Requires a renewal petition to be served on the inmate patient and his or her counsel, and filed with the OAH on the same day as it was served.
Requires the renewal petition to be reviewed by an ALJ, and to include whether the inmate patient still requires a surrogate decisionmaker and whether the inmate patient continues to lack capacity to give informed consent or make a health care decision.
Specifies that an inmate patient who has been determined to lack capacity to give informed consent or make a health care decision and for whom a surrogate decision maker has been appointed still has the right to seek appropriate judicial relief to review the determination or appointment by filing a petition for writ of administrative mandamus and file a petition for writ of habeas corpus in superior court regarding the determination or appointment, or any treatment decision by the surrogate decisionmaker.
Absolves a licensed physician or other health care provider whose actions are in accordance with reasonable health care standards, a surrogate decisionmaker, and an ALJ from liability for monetary damages or administrative sanctions for his or her decisions or actions consistent with the known and documented desires of the inmate patient, or if unknown, the best interests of the inmate patient.
Permits, if specified findings are made, the ALJ to appoint a surrogate decisionmaker for health care for the inmate patient. Prohibits an employee or contract staff of CDCR or other peace officer, from being appointed surrogate decisionmaker for health care for any inmate patient, as specified.
Requires the ALJ’s written decision and order appointing a surrogate decisionmaker to be placed in the inmate patient’s health care record.
Specifies that an order appointing a surrogate decisionmaker be entered under this section is valid for one year and requires that the expiration date be written on the order.
Requires that, if the inmate patient is moved, the sending institution inform the receiving institution of the existence of an order appointing a surrogate decisionmaker.
Provides that the Secretary of CDCR may adopt regulations as necessary to carry out the purposes of this section.
Related Legislation:
SB 1412 (Nielsen) Chapter 759/2014 applies procedures relative to persons who are incompetent to stand trial (IST) to persons who may be mentally incompetent and face revocation of probation, mandatory supervision, postrelease community supervision (PRCS), or parole.
Staff Comments:
To the extent the CDCR develops regulations to implement this new process, one-time costs of approximately $100,000 could be incurred. The CDCR has indicated it anticipates the provisions of this bill will result in future minor net cost savings of about $20,000 annually in reduced administrative costs associated with travel and staff time to attend probate court proceedings. Similarly, the California Correctional Health Care Services has indicated future cost savings associated with this new process.
The Office of Administrative Hearings (OAH) has indicated likely minor, absorbable costs to administer the program assuming the number of cases being processed is not significant. The OAH has indicated this would be a program administered through contract with the CDCR with pro tem ALJs to perform the hearing services, as well as contract with counsel to represent the inmates.
-- END --
AB 1423 (Mark Stone ) Page 9 of 9
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 1423 Hearing Date: July 7, 2015
Author: |
Mark Stone |
||
Version: |
April 20, 2015 |
||
Urgency: |
No |
Fiscal: |
Yes |
Consultant: |
JRD |
||
Subject: Prisoners: Medical Treatment
HISTORY
Source: Author
Prior Legislation: SB 1412 (Nielsen) – Chapter 759, Statutes of 2014
AB 1907 (Lowenthal) – Chapter 814, Statutes of 2012
AB 1114 (Lowenthal) – Chapter 665, Statutes of 2011
Support: California Association of Public Administrators, Public Guardians, and Public Conservators; California Correctional Health Care Services; California Public Defenders Association; Prison Law Office
Opposition: None known
Assembly Floor Vote: 74 - 0
PURPOSE
The purpose of this legislation is to create a new process for appointing a person to make medical care decisions on behalf of a prison inmate who is not competent to make such decisions, as specified.
Existing
law specifies that a
petition may be filed to determine that a patient has the capacity to
make a healthcare decision concerning an existing or continuing
condition. A petition may also be filed to determine that a patient
lacks the capacity to make a healthcare decision concerning specified
treatment for an existing or continuing condition, and further for an
order authorizing a designated person to make a healthcare decision
on behalf of the patient. (Probate Code § 3201.)
Existing
law provides that a
petition to determine capacity to make healthcare decisions may
be filed in the superior court of any of the following counties:
The county in which the patient resides;
The county in which the patient is temporarily living; or
Any other county as may be in the best interests of the patient.
(Probate
Code § 3202.)
Existing
law specifies the
person who may file a petition to determine whether a patient has
capacity to make healthcare decisions as any of the following:
The patient;
The patient’s spouse;
A relative or friend of the patient, or other interested person, including the patient's agent under a power of attorney for healthcare;
The patient’s physician;
A person acting on behalf of the healthcare institution in which the patient is located if the patient is in a healthcare institution; or
The public guardian or other county officer designated by the board of supervisors of the county in which the patient is located or resides or is temporarily living.
(Probate
Code § 3203.)
Existing
law specifies that
the contents of the petition should state or set forth, by a medical
declaration attached to the petition, the following:
The condition of the patient’s health that requires treatment;
The recommended healthcare that is considered to be medically appropriate;
The threat to the patient’s condition if authorization for the recommended healthcare is delayed or denied by the court;
The predictable or probable outcome of the recommended healthcare;
The medically available alternatives, if any, to the recommended healthcare;
The efforts made to obtain consent from the patient;
If the petition is filed by a person on behalf of a healthcare institution, the name of the person to be designated to give consent to the recommended healthcare on behalf of the patient;
The deficit or deficits in the patient’s mental functions that are impaired, and an identification of a link between the deficit or deficits and the patient's inability to respond knowingly and intelligently to queries about the recommended healthcare or inability to participate in a decision about the recommended healthcare by means of a rational thought process; and
The names and addresses, so far as they are known to the petitioner, of the persons specified.
(Probate Code § 3204.)
Existing
law provides,
upon the filing of the petition, the court shall determine the name
of the attorney the patient has retained to represent the patient in
the proceeding under this part or the name of the attorney the
patient plans to retain for that purpose. If the patient has not
retained an attorney and does not plan to retain one, the court shall
appoint the public defender or private counsel to consult with and
represent the patient at the hearing on the petition and, if such
appointment is made. (Probate Code § 3205.)
Existing
law provides
specified notification procedures for a hearing on capacity to make
healthcare decisions. (Probate Code § 3206.)
Existing
law states
that, except as specified, the court may issue an order authorizing
the recommended healthcare for the patient, and designating a person
to give consent to the recommended healthcare on behalf of the
patient, if the court determines from the evidence:
The existing or continuing condition of the patient's health requires the recommended healthcare;
If untreated, there is a probability that the condition will become life-endangering or result in a serious threat to the physical or mental health of the patient;
The patient is unable to consent to the recommended healthcare;
In determining whether the patient’s mental functioning is so severely impaired that the patient lacks the capacity to make any healthcare decision, the court may take into consideration the frequency, severity, and duration of periods of impairment;
The court may make an order authorizing withholding or withdrawing artificial nutrition and hydration, and all other forms of healthcare, and designating a person to give or withhold consent to the recommended healthcare on behalf of the patient, if the court determines from the evidence all of the following:
The recommended healthcare is in accordance with the patient’s best interest, taking into consideration the patient’s personal values to the extent known to the petitioner.
The patient is unable to consent to the recommended healthcare.
This bill establishes a presumption that unless otherwise specified, an adult housed in state prison is presumed to have the capacity to give informed consent and make a health care decision, to give or revoke an advance health care directive, and to designate or disqualify a surrogate.
This bill permits a licensed physician or dentist to file a petition with the Office of Administrative Hearings (OAH) to request that an administrative law judge (ALJ) make a determination as to an inmate patient’s capacity to give informed consent or make a health care decision, and request appointment of a surrogate decision maker, if all of the following conditions are satisfied:
The licensed physician or dentist is treating a patient who is an adult housed in state prison;
The licensed physician or dentist is unable to obtain informed consent from the inmate patient because the physician or dentist determines that the inmate patient appears to lack capacity to give informed consent or make a health care decision; and
There is no person with legal authority to provide informed consent for, or make decisions concerning the health care of, the inmate patient.
This bill requires the next of kin or a family member to be given preference as a surrogate decision maker over other potential surrogate decision makers unless those individuals are unsuitable or unable to serve.
This bill specifies the requirements of the petition filed by a licensed physician or dentist, must include:
The inmate patient’s current physical and health care condition;
The inmate patient’s current mental health condition resulting in the inmate patient’s inability to understand the nature and consequences of his or her need for care;
The deficit or deficits in the inmate patient’s mental functions that establish them as unable to give informed consent or make a health care decision;
An identification of a link, if any, between the deficits in the inmate’s mental functions and how the deficits identified result in the inmate patient’s inability to participate in a decision about his or her health care either knowingly and intelligently or by means of a rational thought process;
A discussion of whether the deficits identified are transient, fixed, or likely to change during the proposed year-long duration of the court order;
The efforts made to obtain informed consent or refusal from the inmate patient and the results of those efforts;
The efforts made to locate next of kin who could act as a surrogate decision maker for the inmate patient;
The probable impact on the inmate patient with, or without, the appointment of a surrogate decision maker;
A discussion of the inmate patient’s desires, if known, and whether there is an advance health care directive, Physicians Orders for Life Sustaining Treatment (POLST), or other documented indication of the inmate patient’s directives or desires and how those indications might influence the decision to issue an order;
Requires any known POLST or Advanced Health Care Directives executed while the inmate patient had capacity to be disclosed; and
The petitioner’s recommendation specifying a qualified and willing surrogate decision maker, if such an individual exists, and the reasons for that recommendation.
This bill requires the petition to be served on the inmate patient and his or her counsel, and filed with the OAH on the same day as it was served.
This bill requires the OAH to issue a notice appointing counsel.
This bill requires, at the time the initial petition is filed, the inmate patient to be provided with counsel and a written notice advising him or her of all of the following:
His or her right to be present at the hearing;
His or her right to be represented by counsel at all stages of the proceedings;
His or her right to present evidence;
His or her right to cross-examine witnesses;
The right of either party to seek one reconsideration of the ALJ’s decision per calendar year;
His or her right to file a petition for writ of administrative mandamus in superior court; and
His or her right to file a petition for writ of habeas corpus in superior court with respect to any decision.
This bill requires counsel for the inmate patient to have access to all relevant medical and central file records for the inmate patient.
This
bill prohibits counsel
for the inmate patient from having access to materials unrelated to
medical treatment located in the confidential section of the inmate
patient’s central file.
This bill requires counsel for the inmate patient to have access to all health care appeals filed by the inmate patient and responses to those appeals, and, to the extent available, any habeas corpus petitions or health care related litigation filed by, or on behalf of, the inmate patient.
This bill requires the inmate patient to be provided with a hearing before an ALJ within 30 days of the date of filing the petition, unless counsel for the inmate patient agrees to extend the date of the hearing.
This bill requires the inmate patient, or his or her counsel, to be given 14 days from the date of filing of any petition to file a response to the petition, unless a shorter time for the hearing is sought by the licensed physician or dentist and ordered by the ALJ, in which case the judge shall set the time for filing a response.
This bill requires the response to be served to all parties who were served with the initial petition and the attorney for the petitioner.
This bill permits the inmate patient’s physician or dentist to administer a medical intervention that requires informed consent prior to the date of the administrative hearing, in the event of a health care emergency.
This bill specifies that, in either an initial or renewal proceeding, the inmate patient has the right to contest the finding of an ALJ authorizing a surrogate decision maker by filing a petition for writ of administrative mandamus.
This bill permits, in either an initial or renewal proceeding, either party to file one motion for reconsideration per calendar year in front of the ALJ following a determination as to an inmate patient’s capacity to give informed consent or make a health care decision. The motion may seek to review the decision for the necessity of a surrogate decision maker, the individual appointed under the order, or both. And, prohibits the motion for reconsideration from requiring formal rehearing unless ordered by the ALJ following submission of the motion, or upon the granting of a request for formal rehearing by any party to the action based on a showing of good cause.
This bill permits annual renewals of existing orders appointing a surrogate decision maker, as specified.
This bill requires the current physician, dentist, or previous surrogate decision maker to file a renewal petition in order to renew an existing order appointing a surrogate decision maker.
This bill requires a renewal hearing to be conducted prior to the expiration of the current order, but not sooner than 10 days after the petition is filed, at which time the inmate patient shall be brought before an ALJ for a review of his or her current medical and mental health condition.
This bill requires a renewal petition to be served on the inmate patient and his or her counsel, and filed with the OAH on the same day as it was served. The OAH is required to issue a written order appointing counsel.
This bill requires the renewal petition to be reviewed by an ALJ, and to include whether the inmate patient still requires a surrogate decision maker and whether the inmate patient continues to lack capacity to give informed consent or make a health care decision.
This bill specifies that a licensed physician or dentist who submits a renewal petition is not required to obtain a court order prior to administering care that requires informed consent.
This bill specifies that an inmate patient who has been determined to lack capacity to give informed consent or make a health care decision and for whom a surrogate decision maker has been appointed still has the right to seek appropriate judicial relief to review the determination or appointment by filing a petition for writ of administrative mandamus and file a petition for writ of habeas corpus in superior court regarding the determination or appointment, or any treatment decision by the surrogate decision maker.
This bill absolves a licensed physician or other health care provider whose actions are in accordance with reasonable health care standards, a surrogate decision maker, and an ALJ from liability for monetary damages or administrative sanctions for his or her decisions or actions consistent with the known and documented desires of the inmate patient, or if unknown, the best interests of the inmate patient.
This
bill permits, if all
of the following findings are made, the ALJ to appoint a surrogate
decision maker for health care for the inmate patient:
Adequate notice and an opportunity to be heard has been given to the inmate patient and his or her counsel;
Reasonable efforts have been made to obtain informed consent from the inmate patient;
As a result of one or more deficits in his or her mental functions, the inmate patient lacks capacity to give informed consent or make a health care decision and is unlikely to regain that capacity over the next year; and
Reasonable efforts have been made to identify family members or relatives who could serve as a surrogate decision maker for the inmate patient.
This
bill prohibits an
employee or contract staff of California Department of Corrections
and Rehabilitation (CDCR) or other peace officer, from being
appointed surrogate decision maker for health care for any inmate
patient unless either of the following conditions apply:
The individual is a family member or relative of the inmate patient and will, as determined by the ALJ, act in the inmate patient’s best interests.
The individual is a health care staff member in a managerial position and does not provide direct care to the inmate patient, as specified.
This bill requires the ALJ’s written decision and order appointing a surrogate decision maker to be placed in the inmate patient’s health care record.
This bill specifies that an order appointing a surrogate decision maker be entered under this section is valid for one year and requires that the expiration date be written on the order.
This bill specifies that the order appointing a surrogate decision maker is valid at any state correctional facility within California.
This bill requires that, if the inmate patient is moved, the sending institution inform the receiving institution of the existence of an order appointing a surrogate decision maker.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past eight years, this Committee has scrutinized legislation referred to its jurisdiction for any potential impact on prison overcrowding. Mindful of the United States Supreme Court ruling and federal court orders relating to the state’s ability to provide a constitutional level of health care to its inmate population and the related issue of prison overcrowding, this Committee has applied its “ROCA” policy as a content-neutral, provisional measure necessary to ensure that the Legislature does not erode progress in reducing prison overcrowding.
On February 10, 2014, the federal court ordered California to reduce its in-state adult institution population to 137.5% of design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In February of this year the administration reported that as “of February 11, 2015, 112,993 inmates were housed in the State’s 34 adult institutions, which amounts to 136.6% of design bed capacity, and 8,828 inmates were housed in out-of-state facilities. This current population is now below the court-ordered reduction to 137.5% of design bed capacity.” ( Defendants’ February 2015 Status Report In Response To February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman v. Brown, Plata v. Brown (fn. omitted).
While significant gains have been made in reducing the prison population, the state now must stabilize these advances and demonstrate to the federal court that California has in place the “durable solution” to prison overcrowding “consistently demanded” by the court. (Opinion Re: Order Granting in Part and Denying in Part Defendants’ Request For Extension of December 31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court, Coleman v. Brown, Plata v. Brown (2-10-14). The Committee’s consideration of bills that may impact the prison population therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed to reducing the prison population;
Whether a proposal addresses a major area of public safety or criminal activity for which there is no other reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly dangerous to the physical safety of others for which there is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or legislative drafting error; and
Whether a proposal proposes penalties which are proportionate, and cannot be achieved through any other reasonably appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
The California Department of Corrections and Rehabilitation (CDCR) has a growing population of elderly inmates, a complex population that has increasingly complicated and acute medical conditions. When an inmate suffers a stroke or develops dementia during a prison term, existing legal avenues under the Probate Code for obtaining consent to release information to relatives or to obtain consent for a proposed course of treatment do not work well in a correctional setting. A readily available process is required to ensure that an appropriate, qualified person is designated to act on behalf of a medically or mentally compromised inmate-patient.
This bill establishes a streamlined process for obtaining consent to release information to relatives or to obtain consent for a proposed course of treatment for inmate-patients suffering from a debilitating medical condition that is not life threatening, but renders them unable to give consent. This protocol solicits assistance from the Office of Administrative Hearings to obtain consent through a process similar to the procedure for administrating psychiatric medication to inmates, which establishes due process through required participation from Administrative Law Judges and inmate counsel. If the ALJ determines that the inmate patient-lacks capacity, the ALJ may appoint a surrogate decision maker that would be required to make decisions in the best interests of the inmate-patient. Whenever possible, a family member or a relative of the inmate-patient would be appointed as the surrogate decision-maker.
2. Effect of Legislation
CDCR prison census data indicates there is a growing population of elderly inmates, a population that, as the author notes, has increasingly complicated and acute medical conditions.
Prisoner's Age
-
-
-
-
50-54
55-59
60+
1998
5,081
2,292
1,868
2013
12,724
7,665
7,191
-
-
-
The existing conservatorship process presents a number of hurdles for prison medical staff attempting to conserve inmates. This process requires that staff go through the superior court of the county in which the inmate is housed whenever a medical emergency arises, or an episodic injury occurs that incapacitates an inmate. Going through this process takes six weeks to six months. During that period, while the inmate is incapacitated, prison officials are unable to update the inmate’s family members as to his or her condition because of the federal Health Insurance Portability and Accountability Act (HIPAA). HIPAA protects patient confidentiality through strict restrictions on dissemination of information. Due to the fact that these patients often do not have advanced healthcare directives, healthcare information cannot be dissemination until a court issues an order.
This bill creates a new process with existing procedures in the prison system. That is, under existing practices administrative law judges already hold hearings in California State Prisons, called Keyea hearings. Permitting healthcare decisions to be heard at these administrative proceedings would arguably shorten the existing wait times, which will benefit inmate-patients and their families.
3. Argument in Support
According to California Correctional Health Care Services (CCHCS):
Currently state prisoners over the age of 50 are the fastest growing segment of the prison population. As these prisoners age, many lose the capacity to make medical determinations on their own, due to dementia, strokes, and other debilitating medical conditions. Under existing law, prison officials are required to go through the process under Probate Code Section 3200, which requires a Superior court hearing to appoint an individual responsible for making medical determinations for the prisoner.
The bill is a common sense
measure that will provide added benefit to the inmate population by
speeding up the process for obtaining the necessary authority to
provide treatment services in cases where the inmate lacks decision
making capability.
-- END –
AB 1423
Page 2
Date of Hearing: May 13, 2015
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Jimmy Gomez, Chair
AB 1423
(Mark Stone) – As Amended April 20, 2015
Policy Committee: |
Public Safety |
Vote: |
6 - 0 |
|
Health |
|
19 - 0 |
|
|
|
|
Urgency: No State Mandated Local Program: No Reimbursable: No
SUMMARY:
This bill creates a process for an administrative hearing to determine a healthcare decision maker for incarcerated persons who lack the capacity to make their own healthcare decisions.
FISCAL EFFECT:
One-time cost of $100,000 (GF) to the California Department of Corrections and Rehabilitation (CDCR) to adopt necessary regulations to implement the provision of the bill.
Ongoing annual savings of approximately $20,000 by eliminating approximately 20 trips to Superior Court.
By establishing a new protocol for obtaining consent from inmates who lack capacity to give consent or refuse treatment, CDCR may avoid litigation from individuals claiming that CDCR’s actions manifested in deliberate indifference to serious medical needs of inmates.
COMMENTS:
Purpose. According to the author, "The state faces an aging prison population. Many inmates have no remaining family ties and lack capacity to sign a release of information or to appoint a decision-maker. When an inmate suffers a stroke or develops dementia during a prison term, existing legal avenues for obtaining consent to release information to relatives or to obtain consent to a proposed course of treatment do not work well in a correctional setting. This bill will establish a readily available process to ensure that an appropriate, qualified person is designated to act on behalf of a medically or mentally compromised inmate."
"This bill establishes a streamlined process for obtaining consent to release information to relatives or to obtain consent for a proposed course of treatment for inmates suffering from a debilitating medical condition that is not life threatening but renders them unable to give consent. This protocol solicits assistance from the Office of Administrative Hearings to obtain consent through a process similar to the procedure for administering psychiatric medication to inmates, which establishes due process through required participation from Administrative Law Judges and inmate counsel. The new system would incorporate the substantive rules of capacity determinations and healthcare decisions for adults without conservators, including notice to next of kin and procedural safeguards for treatment."
Background. Current law specifies that a petition may be filed in Superior Court, by any number of individuals (on behalf of an inmate), to determine that a patient has the capacity to make a healthcare decision concerning an existing or continuing condition and a petition may be filed to determine that a patient lacks the capacity to make a healthcare decision concerning specified treatment for an existing or continuing condition, and further for an order authorizing a designated person to make a healthcare decision on behalf of the patient.
Current law also states that, except as specified, the court may make an order authorizing the recommended healthcare for the patient and designating a person to give consent to the recommended healthcare on behalf of the patient if the court so determines.
This bill would move the Superior Court hearings into the ongoing hearing schedule (Keyhea hearing) operated by the Office of Administrative Hearings in the Department of General Services, and would use the already scheduled inmate counsel and Administrative Law Judge (ALJ).
Argument in Support: According to California Correctional Health Care Services (CCHCS), "Currently state prisoners over the age of 50 are the fastest growing segment of the prison population. As these prisoners age, many lose the capacity to make medical determinations on their own, due to dementia, strokes, and other debilitating medical conditions. Under existing law, prison officials are required to go through the process under Probate Code Section 3200, which requires a Superior court hearing to appoint an individual responsible for making medical determinations for the prisoner."
"The bill is a common sense measure that will provide added
benefit to the inmate population by speeding up the process for
obtaining the necessary authority to provide treatment services in
cases where the inmate lacks decision making capability."
Argument in Opposition: According to Disability Rights California, "This bill would establish a process for a licensed physician or dentist to file a petition with the Office of Administrative Hearings to request an administrative law judge make a determination as to a patient’s capacity to give informed consent or make a health care decision, and request appointment of a surrogate decision maker. The bill would require the petition to contain specified information, including, among other things, the inmate patient’s current physical condition and a description of the health care conditions currently afflicting the inmate patient.
"This process is redundant and unnecessary. There is already a process to get a medical treatment order from the Superior Court. Current procedures are adequate and contain appropriate due process protections. There is simply no need for this bill."
Prior Legislation. AB 1114 (Lowenthal), Chapter 665, Statues of 2011, changed the procedures for involuntarily medicating inmates of CDCR.
Analysis Prepared by: Pedro Reyes / APPR. / (916) 319-2081
AB 1423
Page 9
Date of Hearing: April 28, 2015
ASSEMBLY COMMITTEE ON HEALTH
Rob Bonta, Chair
AB 1423
Mark Stone – As Amended April 20, 2015
SUBJECT: Prisoners: medical treatment.
SUMMARY: Creates a process for establishing, for up to one year, a surrogate healthcare decision maker for incarcerated persons who lack the capacity to make their own healthcare. Specifically, this bill:
Establishes a presumption that unless otherwise specified, an adult housed in state prison is presumed to have the capacity to give informed consent and make a health care decision, to give or revoke an advance health care directive, and to designate or disqualify a surrogate.
Permits a licensed physician or dentist to file a petition with the Office of Administrative Hearings (OAH) to request that an administrative law judge (ALJ) make a determination as to an inmate patient’s capacity to give informed consent or make a health care decision, and request appointment of a surrogate decision maker, if all of the following conditions are satisfied:
The licensed physician or dentist is treating a patient who is an adult housed in state prison.
The licensed physician or dentist is unable to obtain informed consent from the inmate patient because the physician or dentist determines that the inmate patient appears to lack capacity to give informed consent or make a health care decision.
There is no person with legal authority to provide informed consent for, or make decisions concerning the health care of, the inmate patient.
Requires the next of kin or a family member to be given preference as a surrogate decision maker over other potential surrogate decision makers unless those individuals are unsuitable or unable to serve.
Specifies the requirements of the petition filed by a licensed physician or dentist with the OAH, which must include:
The inmate patient’s current physical and health care condition;
The inmate patient’s current mental health condition resulting in the inmate patient’s inability to understand the nature and consequences of his or her need for care;
The deficit or deficits in the inmate patient’s mental functions that establish them as unable to give informed consent or make a health care decision;
An identification of a link, if any, between the deficits in the inmate's mental functions and how the deficits identified result in the inmate patient’s inability to participate in a decision about his or her health care either knowingly and intelligently or by means of a rational thought process;
A discussion of whether the deficits identified are transient, fixed, or likely to change during the proposed year-long duration of the court order;
The efforts made to obtain informed consent or refusal from the inmate patient and the results of those efforts;
The efforts made to locate next of kin who could act as a surrogate decision maker for the inmate patient;
The probable impact on the inmate patient with, or without, the appointment of a surrogate decision maker;
A discussion of the inmate patient’s desires, if known, and whether there is an advance health care directive, Physicians Orders for Life Sustaining Treatment (POLST), or other documented indication of the inmate patient’s directives or desires and how those indications might influence the decision to issue an order;
Requires any known POLST or Advanced Health Care Directives executed while the inmate patient had capacity to be disclosed; and,
The petitioner’s recommendation specifying a qualified and willing surrogate decision maker, if such an individual exists, and the reasons for that recommendation.
Requires the petition to be served on the inmate patient and his or her counsel, and filed with the OAH on the same day as it was served.
Requires the OAH to issue a notice appointing counsel.
Requires, at the time the initial petition is filed, the inmate patient to be provided with counsel and a written notice advising him or her of all of the following:
His or her right to be present at the hearing;
His or her right to be represented by counsel at all stages of the proceedings;
His or her right to present evidence;
His or her right to cross-examine witnesses;
The right of either party to seek one reconsideration of the ALJ's decision per calendar year;
His or her right to file a petition for writ of administrative mandamus in superior court; and,
His or her right to file a petition for writ of habeas corpus in superior court with respect to any decision.
Requires counsel for the inmate patient to have access to all relevant medical and central file records for the inmate patient.
Prohibits counsel for the inmate patient from having access to materials unrelated to medical treatment located in the confidential section of the inmate patient’s central file.
Requires counsel for the inmate patient to have access to all health care appeals filed by the inmate patient and responses to those appeals, and, to the extent available, any habeas corpus petitions or health care related litigation filed by, or on behalf of, the inmate patient.
Requires the inmate patient to be provided with a hearing before an ALJ within 30 days of the date of filing the petition, unless counsel for the inmate patient agrees to extend the date of the hearing.
Requires the inmate patient, or his or her counsel, to be given 14 days from the date of filing of any petition to file a response to the petition, unless a shorter time for the hearing is sought by the licensed physician or dentist and ordered by the ALJ, in which case the judge shall set the time for filing a response.
Requires the response to be served to all parties who were served with the initial petition and the attorney for the petitioner.
Permits the inmate patient's physician or dentist to administer a medical intervention that requires informed consent prior to the date of the administrative hearing, in the event of a health care emergency.
Specifies that, in either an initial or renewal proceeding, the inmate patient has the right to contest the finding of an ALJ authorizing a surrogate decision maker by filing a petition for writ of administrative mandamus.
Permits, in either an initial or renewal proceeding, either party to file one motion for reconsideration per calendar year in front of the ALJ following a determination as to an inmate patient’s capacity to give informed consent or make a health care decision.
The motion may seek to review the decision for the necessity of a surrogate decision maker, the individual appointed under the order, or both.
Prohibits the motion for reconsideration from requiring formal rehearing unless ordered by the ALJ following submission of the motion, or upon the granting of a request for formal rehearing by any party to the action based on a showing of good cause.
Permits annual renewals of existing orders appointing a surrogate decision maker, as specified.
Requires the current physician, dentist, or previous surrogate decision maker to file a renewal petition in order to renew an existing order appointing a surrogate decision maker.
Requires a renewal hearing to be conducted prior to the expiration of the current order, but not sooner than 10 days after the petition is filed, at which time the inmate patient shall be brought before an ALJ for a review of his or her current medical and mental health condition.
Requires a renewal petition to be served on the inmate patient and his or her counsel, and filed with the OAH on the same day as it was served. The OAH is required to issue a written order appointing counsel.
Requires the renewal petition to be reviewed by an ALJ, and to include whether the inmate patient still requires a surrogate decision maker and whether the inmate patient continues to lack capacity to give informed consent or make a health care decision.
Specifies that a licensed physician or dentist who submits a renewal petition is not required to obtain a court order prior to administering care that requires informed consent.
Specifies that an inmate patient who has been determined to lack capacity to give informed consent or make a health care decision and for whom a surrogate decision maker has been appointed still has the right to seek appropriate judicial relief to review the determination or appointment by filing a petition for writ of administrative mandamus and file a petition for writ of habeas corpus in superior court regarding the determination or appointment, or any treatment decision by the surrogate decision maker.
Absolves a licensed physician or other health care provider whose actions are in accordance with reasonable health care standards, a surrogate decision maker, and an ALJ from liability for monetary damages or administrative sanctions for his or her decisions or actions consistent with the known and documented desires of the inmate patient, or if unknown, the best interests of the inmate patient.
Permits, if all of the following findings are made, the ALJ to appoint a surrogate decision maker for health care for the inmate patient:
Adequate notice and an opportunity to be heard has been given to the inmate patient and his or her counsel;
Reasonable efforts have been made to obtain informed consent from the inmate patient;
As a result of one or more deficits in his or her mental functions, the inmate patient lacks capacity to give informed consent or make a health care decision and is unlikely to regain that capacity over the next year; and,
Reasonable efforts have been made to identify family members or relatives who could serve as a surrogate decisionmaker for the inmate patient.
Prohibits an employee or contract staff of California Department of Corrections and Rehabilitation (CDCR) or other peace officer, from being appointed surrogate decisionmaker for health care for any inmate patient unless either of the following conditions apply:
The individual is a family member or relative of the inmate patient and will, as determined by the ALJ, act in the inmate patient’s best interests.
The individual is a health care staff member in a managerial position and does not provide direct care to the inmate patient, as specified.
Requires the ALJ’s written decision and order appointing a surrogate decisionmaker to be placed in the inmate patient’s health care record.
Specifies that an order appointing a surrogate decisionmaker be entered under this section is valid for one year and requires that the expiration date be written on the order.
Specifies that the order appointing a surrogate decisionmaker is valid at any state correctional facility within California.
Requires that, if the inmate patient is moved, the sending institution inform the receiving institution of the existence of an order appointing a surrogate decisionmaker.
This section applies only to orders appointing a surrogate decisionmaker with authority to make a health care decision for an inmate patient who lacks capacity to give informed consent or make a health care decision.
Permits the Secretary of CDCR to adopt regulations as necessary.
EXISTING LAW:
Permits a petition to be filed to determine whether or not a patient has the capacity to make a healthcare decision concerning an existing or continuing condition.
Permits and provides for an order authorizing a designated person to make a healthcare decision on behalf of the patient to be filed in superior court.
Specifies the person who may file a petition to determine whether a patient has capacity to make healthcare decisions as any of the following:
The patient;
The patient's spouse;
A relative or friend of the patient, or other interested person, including the patient's agent under a power of attorney for healthcare;
The patient's physician;
A person acting on behalf of the healthcare institution in which the patient is located if the patient is in a healthcare institution; and,
The public guardian or other county officer designated by the board of supervisors of the county in which the patient is located or resides or is temporarily living.
Specifies that the contents of the petition should state or set forth by a medical declaration attached to the petition, all of the following known to the petitioner at the time the petition is filed:
The condition of the patient's health that requires treatment;
The recommended healthcare that is considered to be medically appropriate;
The threat to the patient's condition if authorization for the recommended healthcare is delayed or denied by the court;
The predictable or probable outcome of the recommended healthcare;
The medically available alternatives, if any, to the recommended healthcare.
The efforts made to obtain consent from the patient.
If the petition is filed by a person on behalf of a healthcare institution, the name of the person to be designated to give consent to the recommended healthcare on behalf of the patient;
The deficit or deficits in the patient's mental functions that are impaired, and an identification of a link between the deficit or deficits and the patient's inability to respond knowingly and intelligently to queries about the recommended healthcare or inability to participate in a decision about the recommended healthcare by means of a rational thought process; and,
The names and addresses, so far as they are known to the petitioner, of the persons specified.
Provides for the retention of representation or a court appointed public defender or private counsel to consult with and represent the patient at the hearing on the petition as specified.
Provides specified notification procedures for a hearing on capacity to make healthcare decisions.
States that, except as specified, the court may make an order authorizing the recommended healthcare for the patient and designating a person to give consent to the recommended healthcare on behalf of the patient if the court determines from the evidence all of the following:
The existing or continuing condition of the patient's health requires the recommended healthcare;
If untreated, there is a probability that the condition will become life-endangering or result in a serious threat to the physical or mental health of the patient;
The patient is unable to consent to the recommended healthcare;
In determining whether the patient's mental functioning is so severely impaired that the patient lacks the capacity to make any healthcare decision, the court may take into consideration the frequency, severity, and duration of periods of impairment; and,
The court may make an order authorizing withholding or withdrawing artificial nutrition and hydration and all other forms of healthcare and designating a person to give or withhold consent to the recommended healthcare on behalf of the patient if the court determines from the evidence all of the following:
The recommended healthcare is in accordance with the patient's best interest, taking into consideration the patient's personal values to the extent known to the petitioner; and,
The patient is unable to consent to the recommended healthcare.
FISCAL EFFECT: This bill has not yet been analyzed by a fiscal committee.
COMMENTS:
PURPOSE OF THIS BILL. According to the author, the state faces an aging prison population. Many people in prison have no remaining family ties and lack capacity to sign a release of information or to appoint a decision-maker. For people in prison who suffer strokes or develop dementia, existing legal avenues for obtaining consent to release information to relatives or to obtain consent to a proposed course of treatment do not work well in a correctional setting. The author concludes that this bill will establish a readily available process to ensure that an appropriate, qualified person is designated to act on behalf of a medically or mentally compromised prisoner.
BACKGROUND.
Aging Prisoners. CDCR prison census data indicates there is a growing population of elderly inmates, a complex population that has increasingly complicated and acute medical conditions.
Prisoner's Age
-
-
-
-
50-54
55-59
60+
1998
5,081
2,292
1,868
2013
12,724
7,665
7,191
-
-
-
This
growing population mirrors an aging population of prisoners
nationwide, with U.S. prisoners over the age of 44 increasing more
than 8% annually from 1991 to 2011—four times the rate of prisoners
under the age of 35, according to the Bureau of Justice Statistics,
the research arm of the Justice Department. The proportion of inmates
54 years or older nearly tripled in that time, from 3% to more than
8%.
Conservatorship Process. Conservatorships governed by the Probate Code are the most common type of conservatorship. Probate conservatorships can be established for adults who are unable to provide properly for their personal needs for physical health, food, clothing, or shelter. These conservatees are often elderly people, but can also be seriously impaired younger people. Conservatorship petitions must be filed with and approved by a superior court judge. The existing process for conservatorships must also be followed for inmates in the California State Prison System, which can present a number of challenges. This process requires that prison medical staff must go through the superior court of the county in which the inmate is housed whenever a medical emergency arises, or an episodic injury occurs which incapacitates an inmate. Going through the existing process causes a significant wait time of six weeks to six months. During that period, while the inmate is incapacitated, prison officials are unable to update the inmate's family members as to their condition in fear of violating the federal Health Insurance Portability and Accountability Act (HIPAA). HIPAA protects patient confidentiality through strict restrictions on dissemination of information. Due to the fact that these patients often do not have advanced healthcare directives, the information as to their health is privileged from dissemination until a decision by the Superior Court can be made.
SUPPORT. The California Association of Public Administrators, Public Guardians, and Public Conservators (CAPAPGPC), this measure would create a process for an administrative hearing to determine a health care decision maker for incarcerated persons who lack the capacity to make their own health care decisions. All adults, including inmates of the California Correctional System, retain the right to fundamental personal decision making such as health care choices or end of life planning. However, not all adults remain able to make such decisions through the course of their lifetime. Establishemnt of a streamlined process for obtaining consent to release information to relatives or to obtain consent for a proposed course of treatment involing an inmate suffering from a condition such as dementia will provide expedient health care to the impaired inmate while preserving their basic rights to dignity and privacy. CAPAPGPC states that this bill would allow an ALJ to appoint a qualified and willing surrogate decision maker for impaired inmates. The bill further states that the ALJ should consider appointing a family member or relative when appropriate to serve as the surrogate decision maker. CAPAPGPC concludes that this guidance will greatly assist ALJs who may otherwise immediately move to appoint a public guardian to serve in this capacity.
The California Correctional Health Care Services, California Public Defenders Association and others write in strong support of the bill that currently, state prisoners over the age of 50 are the fastest growing segment of the prison population. As these prisoners age, many lose the capacity to make medical determinations on their own, due to dementia, strokes, and other debilitating medical conditions. Under existing law, prison officials are required to go through the process under Probate Code Section 3200, which requires a Superior Court hearing to appoint an individual responsible for making medical determinations for the prisoner. This bill would establish a streamlined legal process, using ALJs, to make this determination and which is patterned after the existing process used for obtaining consent for involuntary medication for prisoners. Supporters concludes that this bill is a common sense measure that will provide added benefit to the inmate population by speeding up the process for obtaining the necessary authority to provide treatment services in cases where the inmate lack decision-making capability.
PREVIOUS LEGISLATION.
AB 1907 (Lowenthal), Chapter 814, Statutes of 2012, provided that no individual sentenced to imprisonment in county jail for specified felonies shall be administered any psychiatric medication without his or her prior informed consent, unless specified circumstances are met.
AB 1114 (Lowenthal), Chapter 665, Statues of 2011, changed the procedures for involuntarily medicating inmates of CDCR.
SB 795 (Blakeslee), of 2011, would have changed the process for involuntary medication of defendants found mentally incompetent during the criminal process. SB 795 failed passage in the Senate Public Safety Committee.
AB 2380 (Dymally), of 2006, would have clarified that “treatment” for medically disordered offenders paroled to other facilities for treatment includes involuntary medication. AB 2380 failed passage in the Assembly Public Safety Committee.
AB 1424 (Thompson), Chapter 506, Statutes of 2001, related to the involuntary medication for individuals under the Lanterman-Petris-Short Act.
DOUBLE REFERRAL. This bill has been double referred. It passed the Assembly Committee on Public Safety with a vote of 6-0 on April 14, 2015.
REGISTERED SUPPORT / OPPOSITION:
Support
California Association of Public Administrators, Public Guardians, and Public Conservators
California Correctional Health Care Services
California Public Defenders Association
Prison Law Office
Opposition
None on file.
Analysis Prepared by: Paula Villescaz / HEALTH / (916) 319-2097
AB 1423
Page 12
Date of Hearing: April 14, 2015
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Bill Quirk, Chair
AB 1423
(Mark Stone) – As Amended March 26, 2015
SUMMARY:
Creates a process for an administrative hearing to determine a healthcare decision maker for incarcerated persons who lack the capacity to make their own healthcare decisions. Specifically, this bill:
Finds and declares the following:
In recognition of the dignity and privacy a person has a right to expect, the law recognizes that adults housed in state prison have the fundamental right to control decisions relating to their own healthcare, including the decision to have life-sustaining treatment withheld or withdrawn.
The determination of capacity for informed consent for adults housed in state prison is more appropriately conducted at the institution where the patient is housed and can attend, if he or she desires.
Because of the confinement of these adults and their frequent movement between institutions, existing protections for patients regarding healthcare decision making are inadequate.
Existing statutory schemes centered on life-threatening emergent illness and court-ordered decision makers do not adequately address the needs of adults housed in state prison to have their capacity issues addressed and adjudicated by a neutral third party, even in the absence of a serious or life-threatening medical emergency.
Provides, subject to enumerated exceptions, that an adult housed in state prison is presumed to have the capacity to give informed consent and make a healthcare decision, to give or revoke an advance healthcare directive, and to designate or disqualify a surrogate. This presumption is a presumption affecting the burden of proof.
States that, subject to specified existing exceptions related to administration of psychiatric medications, a licensed physician or dentist may file a petition with the Office of Administrative Hearings to request that an administrative law judge make a determination as to a patient’s capacity to give informed consent or make a healthcare decision, and request appointment of a surrogate decision maker, if all of the following conditions are satisfied:
The licensed physician or dentist is treating a patient who is an adult housed in state prison;
The licensed physician or dentist is unable to obtain informed consent from the inmate patient because the physician or dentist determines that the inmate patient appears to lack capacity to give informed consent or make a healthcare decision; and
There is no person with legal authority to provide informed consent for, or make decisions concerning the healthcare of, the inmate patient.
Provides that in appointing a surrogate decision maker, preference shall be given to the next of kin or a family member as a surrogate decision maker over other potential surrogate decision makers unless those individuals are unsuitable or unable to serve.
Provides that the petition shall allege all of the following:
The inmate patient’s current physical condition, describing the healthcare conditions currently afflicting the inmate patient;
The inmate patient’s current mental health condition resulting in the inmate patient’s inability to understand the nature and consequences of his or her need for care such that there is a lack of capacity to give informed consent or make a healthcare decision;
The deficit or deficits in the inmate patient’s mental functions as listed as specified in the Probate Code;
An identification of a link, if any, between the deficits identified and an explanation of how the deficits identified that result in the inmate patient’s inability to participate in a decision about his or her healthcare either knowingly and intelligently or by means of a rational thought process;
A discussion of whether the deficits identified are transient, fixed, or likely to change during the proposed year-long duration of the court order;
The efforts made to obtain informed consent or refusal from the inmate patient and the results of those efforts;
The efforts made to locate next of kin who could act as a surrogate decision maker for the inmate patient. If those individuals are located, all of the following shall also be included, so far as the information is known:
The names and addresses of the individuals;
Whether any information exists to suggest that any of those individuals would not act in the inmate patient’s best interests; and
Whether any of those individuals are otherwise suitable to make healthcare decisions for the inmate patient.
The probable impact on the inmate patient with, or without, the appointment of a surrogate decision maker;
A discussion of the inmate patient’s desires, if known, and whether there is an advance healthcare directive, Physicians Orders for Life Sustaining Treatment (POLST), or other documented indication of the inmate patient’s directives or desires and how those indications might influence the decision to issue an order. Additionally, any known POLST or Advanced Health Care Directives executed while the inmate patient had capacity shall be disclosed; and
The petitioner’s recommendation specifying a qualified and willing surrogate decision maker, and the reasons for that recommendation.
States that the petition shall be served on the inmate patient and his or her counsel, and filed with the Office of Administrative Hearings on the same day as it was served. The Office of Administrative Hearings shall issue a notice appointing counsel.
Provides at the time the initial petition is filed, the inmate patient shall be provided with counsel and a written notice advising him or her of all of the following:
His or her right to be present at the hearing;
His or her right to be represented by counsel at all stages of the proceedings;
His or her right to present evidence;
His or her right to cross-examine witnesses;
The right of either party to seek one reconsideration of the administrative law judge’s decision per calendar year;
His or her right to file a petition for writ of administrative mandamus in superior court; and
His or her right to file a petition for writ of habeas corpus in superior court with respect to any decision.
States that counsel for the inmate patient shall have access to all relevant medical and central file records for the inmate patient, but shall not have access to materials unrelated to medical treatment located in the confidential section of the inmate patient’s central file. Counsel shall also have access to all healthcare appeals filed by the inmate patient and responses to those appeals, and, to the extent available, any habeas corpus petitions or healthcare related litigation filed by, or on behalf of, the inmate patient.
States that the inmate patient shall be provided with a hearing before an administrative law judge within 30 days of the date of filing the petition, unless counsel for the inmate patient agrees to extend the date of the hearing.
Provides that the inmate patient, or his or her counsel, shall have 14 days from the date of filing of any petition to file a response to the petition, unless a shorter time for the hearing is sought by the licensed physician or dentist and ordered by the administrative law judge, in which case the judge shall set the time for filing a response. The response shall be served to all parties who were served with the initial petition and the attorney for the petitioner.
Provides that in case of an emergency, the inmate patient’s physician or dentist may administer a medical intervention that requires informed consent prior to the date of the administrative hearing. Counsel for the inmate patient shall be notified by the physician or dentist.
Provides that in either an initial or renewal proceeding, the inmate patient has the right to contest the finding of an administrative law judge authorizing a surrogate decision maker by filing a petition for writ of administrative mandamus.
States that in either an initial or renewal proceeding, either party is entitled to file one motion for reconsideration per calendar year in front of the administrative law judge following a determination as to an inmate patient’s capacity to give informed consent or make a healthcare decision. The motion may seek to review the decision for the necessity of a surrogate decision maker, the individual appointed under the order, or both. The motion for reconsideration shall not require a formal rehearing unless ordered by the administrative law judge following submission of the motion, or upon the granting of a request for formal rehearing by any party to the action based on a showing of good cause.
Provides that to renew an existing order appointing a surrogate decision maker, the current physician or dentist, or a previously appointed surrogate decision maker shall file a renewal petition. The renewal shall be for an additional year at a time. The renewal hearing on any order issued under this section shall be conducted prior to the expiration of the current order, but not sooner than 10 days after the petition is filed, at which time the inmate patient shall be brought before an administrative law judge for a review of his or her current medical and mental health condition:
Specifies that a renewal petition shall be served on the inmate patient and his or her counsel, and filed with the Office of Administrative Hearings on the same day as it was served. The Office of Administrative Hearings shall issue a written order appointing counsel;
Provides that the renewal hearing shall be held as specified;
States that at the time the renewal petition is filed, the inmate patient shall be provided with counsel and a written notice advising him or her of all of the following:
His or her right to be present at the hearing;
His or her right to be represented by counsel at all stages of the proceedings;
His or her right to present evidence;
His or her right to cross-examine witnesses;
The right of either party to seek one reconsideration of the administrative law judge’s decision per calendar year; and
His or her right to file a petition for writ of administrative mandamus in superior court.
His or her right to file a petition for writ of habeas corpus in superior court with respect to any decision.
Specifies that counsel for the inmate patient shall have access to all relevant medical and central file records for the inmate patient, but shall not have access to materials unrelated to medical treatment located in the confidential section of the inmate patient’s central file. Counsel shall also have access to all healthcare appeals filed by the inmate patient and responses to those appeals, and, to the extent available, any habeas corpus petitions or healthcare related litigation filed by, or on behalf of, the inmate patient;
States that the renewal petition shall request the matter be reviewed by an administrative law judge, and allege all of the following:
The current status of each of the elements requiring notification of rights of the patient;
Whether the inmate patient still requires a surrogate decision maker; and
Whether the inmate patient continues to lack capacity to give informed consent or make a healthcare decision.
Provides that a licensed physician or dentist who submits a petition pursuant to this section shall not be required to obtain a specified court order prior to administering care that requires informed consent.
States that this section does not affect the right of an inmate patient who has been determined to lack capacity to give informed consent or make a healthcare decision and for whom a surrogate decision maker has been appointed to do either of the following:
Seek appropriate judicial relief to review the determination or appointment by filing a petition for writ of administrative mandamus; or
File a petition for writ of habeas corpus in superior court regarding the determination or appointment, or any treatment decision by the surrogate decision maker.
States that a licensed physician or other healthcare provider whose actions under this section are in accordance with reasonable healthcare standards, a surrogate decision maker appointed pursuant to this section, and an administrative law judge shall not be liable for monetary damages or administrative sanctions for his or her decisions or actions consistent with this section and the known and documented desires of the inmate patient, or if unknown, the best interests of the inmate patient.
Provides that the determinations required to be made shall be documented in the inmate patient’s medical record.
Provides with regard to any petition, the administrative law judge shall determine and provide a written order and findings setting forth whether there has been clear and convincing evidence that all of the following occurred:
Adequate notice and an opportunity to be heard has been given to the inmate patient and his or her counsel.
Reasonable efforts have been made to obtain informed consent from the inmate patient.
As a result of one or more deficits in his or her mental functions, the inmate patient lacks capacity to give informed consent or make a healthcare decision and is unlikely to regain that capacity over the next year.
Reasonable efforts have been made to identify family members or relatives who could serve as a surrogate decision maker for the inmate patient.
Provides that the written decision shall also specify and describe any advance healthcare directives, POLST, or other documented indication of the inmate patient’s directives or desires regarding healthcare that were created and validly executed while the inmate patient had capacity. Further specifies that if all findings related to directives are made, the administrative law judge shall appoint a surrogate decision maker for healthcare for the inmate patient. In doing so, the administrative law judge shall consider all reasonable options presented, including those identified in the petition, and weigh how the proposed surrogate decision maker would represent the best interests of the inmate patient, the efficacy of achieving timely surrogate decisions, and the urgency of the situation. Family members or relatives of the inmate patient should be appointed when possible if such an individual is available and the administrative law judge determines the family member or relative will act in the inmate patient’s best interests.
Specifies that an employee or contract staff of the Department of Corrections and Rehabilitation, or other peace officer, shall not be appointed surrogate decision maker for healthcare for any inmate patient under this section, unless either of the following conditions apply:
The individual is a family member or relative of the inmate patient and will, as determined by the administrative law judge, act in the inmate patient’s best interests.
The individual is a healthcare staff member in a managerial position and does not provide direct care to the inmate patient. A surrogate decision maker appointed under this subparagraph may be specified by his or her functional role at the institution, such as “Chief Physician and Surgeon” or “Chief Medical Executive” to provide clarity as to the active decision maker at the institution where the inmate patient is housed, and to anticipate potential personnel changes. When the surrogate decision maker is specified by position, rather than by name, the person occupying that specified role at the institution at which the inmate patient is currently housed shall be considered and act as the appointed surrogate decision maker.
Provides that the order appointing the surrogate decision maker shall be written and state the basis for the decision by reference to the particular mandates of this subdivision. The order shall also state that the surrogate decision maker shall honor and follow any advance healthcare directive, POLST, or other documented indication of the inmate patient’s directives or desires, and specify any such directive, order, or documented desire.
Requires that the administrative law judge’s written decision and order appointing a surrogate decision maker shall be placed in the inmate patient’s Department of Corrections and Rehabilitation healthcare record.
Provides an order entered under this section is valid for one year and the expiration date shall be written on the order. The order shall be valid at any state correctional facility within California. If the inmate patient is moved, the sending institution shall inform the receiving institution of the existence of an order entered under this section.
Clarifies that this section applies only to orders appointing a surrogate decision maker with authority to make a healthcare decision for an inmate patient who lacks capacity to give informed consent or make a healthcare decision. Specifies that this section does not apply to existing law regarding healthcare to be provided in an emergency or existing law governing healthcare for un-emancipated minors. This section shall not be used for the purposes of determining or directing an inmate patient’s control over finances, marital status, or for convulsive treatment, as described in the Welfare and Institutions Code, psychosurgery, sterilization, abortion, or involuntary administration of psychiatric medication.
EXISTING LAW:
Specifies that a petition may be filed to determine that a patient has the capacity to make a healthcare decision concerning an existing or continuing condition and a petition may be filed to determine that a patient lacks the capacity to make a healthcare decision concerning specified treatment for an existing or continuing condition, and further for an order authorizing a designated person to make a healthcare decision on behalf of the patient. (Prob. Code, § 3201.)
Provides that a petition to determine capacity to make healthcare decisions may be filed in the superior court of any of the following counties: (Prob. Code, § 3202.)
The county in which the patient resides.
The county in which the patient is temporarily living.
Such other county as may be in the best interests of the patient.
Specifies the person who may file a petition to determine whether a patient has capacity to make healthcare decisions as any of the following: (Prob. Code, § 3203.)
The patient.
The patient's spouse.
A relative or friend of the patient, or other interested person, including the patient's agent under a power of attorney for healthcare.
The patient's physician.
A person acting on behalf of the healthcare institution in which the patient is located if the patient is in a healthcare institution.
The public guardian or other county officer designated by the board of supervisors of the county in which the patient is located or resides or is temporarily living.
Specifies that the contents of the petition should state or set forth by a medical declaration attached to the petition, all of the following known to the petitioner at the time the petition is filed: (Prob. Code, § 3204.)
The condition of the patient's health that requires treatment.
The recommended healthcare that is considered to be medically appropriate.
The threat to the patient's condition if authorization for the recommended healthcare is delayed or denied by the court.
The predictable or probable outcome of the recommended healthcare.
The medically available alternatives, if any, to the recommended healthcare.
The efforts made to obtain consent from the patient.
If the petition is filed by a person on behalf of a healthcare institution, the name of the person to be designated to give consent to the recommended healthcare on behalf of the patient.
The deficit or deficits in the patient's mental functions that are impaired, and an identification of a link between the deficit or deficits and the patient's inability to respond knowingly and intelligently to queries about the recommended healthcare or inability to participate in a decision about the recommended healthcare by means of a rational thought process.
The names and addresses, so far as they are known to the petitioner, of the persons specified.
Provides, upon the filing of the petition, the court shall determine the name of the attorney the patient has retained to represent the patient in the proceeding under this part or the name of the attorney the patient plans to retain for that purpose. If the patient has not retained an attorney and does not plan to retain one, the court shall appoint the public defender or private counsel to consult with and represent the patient at the hearing on the petition and, if such appointment is made, specified procedures shall apply. (Prob. Code, § 3205.)
Provides specified notification procedures for a hearing on capacity to make healthcare decisions. (Prob. Code, § 3206.)
States that, except as specified, the court may make an order authorizing the recommended healthcare for the patient and designating a person to give consent to the recommended healthcare on behalf of the patient if the court determines from the evidence all of the following: (Prob. Code, § 3208.)
The existing or continuing condition of the patient's health requires the recommended healthcare.
If untreated, there is a probability that the condition will become life-endangering or result in a serious threat to the physical or mental health of the patient.
The patient is unable to consent to the recommended healthcare.
In determining whether the patient's mental functioning is so severely impaired that the patient lacks the capacity to make any healthcare decision, the court may take into consideration the frequency, severity, and duration of periods of impairment.
The court may make an order authorizing withholding or withdrawing artificial nutrition and hydration and all other forms of healthcare and designating a person to give or withhold consent to the recommended healthcare on behalf of the patient if the court determines from the evidence all of the following:
The recommended healthcare is in accordance with the patient's best interest, taking into consideration the patient's personal values to the extent known to the petitioner.
The patient is unable to consent to the recommended healthcare.
FISCAL EFFECT:
Unknown
COMMENTS:
Author's Statement: According to the author, "The state faces an aging prison population. Many inmates have no remaining family ties and lack capacity to sign a release of information or to appoint a decision-maker. When an inmate suffers a stroke or develops dementia during a prison term, existing legal avenues for obtaining consent to release information to relatives or to obtain consent to a proposed course of treatment do not work well in a correctional setting. This bill will establish a readily available process to ensure that an appropriate, qualified person is designated to act on behalf of a medically or mentally compromised inmate."
Background: According to the background submitted by the author, "The California Department of Corrections and Rehabilitation (CDCR) has a growing population of elderly inmates, a population with varied and complex needs, and which has the largest share of complicated and acute medical conditions. Because this population is growing, it is becoming more common for inmates to develop conditions that render them temporarily or permanently incapacitated; this has created legal dilemmas for inmates, family members, and prison administrators. Under current law, when an inmate suffers a stroke or develops dementia during a prison term, existing legal avenues under the Probate Code for obtaining consent to release information to relatives or to obtain consent for a proposed course of treatment do not anticipate the needs of an incapacitated person in a correctional setting. A readily available process is needed to ensure that an appropriate, qualified person is designated to act on behalf of a medically or mentally compromised inmate.
"This bill establishes a streamlined process for obtaining consent to release information to relatives or to obtain consent for a proposed course of treatment for inmates suffering from a debilitating medical condition that is not life threatening but renders them unable to give consent. This protocol solicits assistance from the Office of Administrative Hearings to obtain consent through a process similar to the procedure for administering psychiatric medication to inmates, which establishes due process through required participation from Administrative Law Judges and inmate counsel. The new system would incorporate the substantive rules of capacity determinations and healthcare decisions for adults without conservators, including notice to next of kin and procedural safeguards for treatment."
Difficulties with the Existing Probate Law Process: The existing process outlined in the existing law section of this analysis presents a number of hurdles for inmates in the California State Prison System. The existing law is modeled on a conservator system. This process requires that prison medical staff must go through the superior court of the county in which the inmate is housed whenever a medical emergency arises, or an episodic injury occurs which incapacitates an inmate. Going through the existing process causes a significant wait time of six weeks to six months. During that period, while the inmate is incapacitated, prison officials are unable to update the inmate's family members as to their condition in fear of violating the federal Health Insurance Portability and Accountability Act (HIPAA). HIPAA protects patient confidentiality through strict restrictions on dissemination of information. Due to the fact that these patients often do not have advanced healthcare directives, the information as to their health is privileged from dissemination until a decision by the Superior Court can be made. This bill would authorize an administrative procedure with existing procedures in the prison system. Under existing practices administrative law judges already hold hearings in California State Prisons, called Keyea hearings. Permitting these administrative proceedings to handle these healthcare decisions would arguably shorten the existing wait times.
Argument in Support: According to California Correctional Health Care Services (CCHCS), "Currently state prisoners over the age of 50 are the fastest growing segment of the prison population. As these prisoners age, many lose the capacity to make medical determinations on their own, due to dementia, strokes, and other debilitating medical conditions. Under existing law, prison officials are required to go through the process under Probate Code Section 3200, which requires a Superior court hearing to appoint an individual responsible for making medical determinations for the prisoner.
"AB 1423 would establish a streamlined legal process, using Administrative Law Judges, to make this determination and which is patterned after the existing process used for obtaining consent for involuntary medication for prisoners. This process, called a Keyea hearing, has been in place since the mid-1900s and has proven throughout the years to provide the necessary legal safeguards while providing a savings to the State through elimination of Superior Court resources.
"The bill is a common sense measure that will provide added
benefit to the inmate population by speeding up the process for
obtaining the necessary authority to provide treatment services in
cases where the inmate lacks decision making capability."
Argument in Opposition: According to Disability Rights California, "Existing law provides for the designation and selection of health care surrogates, and for the manner of making health care decisions for patients without surrogates.
"Existing law prohibits the administration of psychiatric medication to an inmate in state prison on a nonemergency basis without the inmate’s informed consent, unless certain conditions are satisfied, including, among other things that a psychiatrist determines the inmate is gravely disabled and does not have the capacity to refuse medication. Existing law authorizes a physician to administer psychiatric medication to a prison inmate in emergency situations.
"This bill would establish a process for a licensed physician or dentist to file a petition with the Office of Administrative Hearings to request an administrative law judge make a determination as to a patient’s capacity to give informed consent or make a health care decision, and request appointment of a surrogate decision maker. The bill would require the petition to contain specified information, including, among other things, the inmate patient’s current physical condition and a description of the health care conditions currently afflicting the inmate patient.
"This
process is redundant and unnecessary. There is already a process to
get a medical treatment order from the Superior Court. Current
procedures are adequate and contain appropriate due process
protections. There is simply no need for this bill."
Prior Legislation:
AB 1907 (Lowenthal), Chapter 814, Statutes of 2012, provided that no individual sentenced to imprisonment in county jail for specified felonies shall be administered any psychiatric medication without his or her prior informed consent, unless specified circumstances are met. Additionally, made conforming changes to the process by which inmates of the California Department of Corrections and Rehabilitation (CDCR) can be involuntarily medicated.
AB 1114 (Lowenthal), Chapter 665, Statues of 2011, changed the procedures for involuntarily medicating inmates of CDCR.
SB 795 (Blakeslee), of the 2011-12 Legislative Session, would have changed the process for involuntary medication of defendants found mentally incompetent during the criminal process. SB 795 failed passage in the Senate Public Safety Committee.
AB 2380 (Dymally), of the 2005-06 Legislative Session, would have clarified that “treatment” for medically disordered offenders paroled to other facilities for treatment includes involuntary medication. AB 2380 failed passage in this Committee.
AB 1424 (Thompson), Chapter 506, Statutes of 2001, related to the involuntary medication for individuals under the Lanterman-Petris-Short Act.
AB 2798 (Thompson), of the 1999-2000 Legislative Session, would have authorized a judicially committed forensic patient in a state hospital to be medicated involuntarily with antipsychotic mediation in accordance with specified procedures. AB 2798 was never heard by this Committee.
REGISTERED SUPPORT / OPPOSITION:
Support
California Correctional Health Care Services
California Public Defenders Association
Opposition
Disability Rights California
Analysis Prepared by:
Gabriel Caswell / PUB. S. / (916) 319-3744
Discussed in Hearing
View Older Hearings
Bill Author
Bill Co-Author(s):