Amended in Assembly April 20, 2015

Amended in Assembly March 26, 2015

California Legislature—2015–16 Regular Session

Assembly Bill No. 1423

Introduced by Assembly Member Mark Stone

February 27, 2015

An act to add Section 2604 to the Penal Code, relating to medical treatment of prisoners.

LEGISLATIVE COUNSEL’S DIGEST

AB 1423, as amended, Mark Stone. Prisoners: medical treatment.

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 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 patient’s 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 patient’s 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 begin delete provided inmate patient. end delete begin insert provided. end insert 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, begin delete the ’s end delete begin insert the inmate patient’s end insert 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 patient’s 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.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

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

SECTION 1.  

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 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:

(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 patient’s current physical condition, describing
the health care conditions currently afflicting the inmate patient.

(2) 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 health care decision.

(3) The deficit or deficits in the inmate patient’s 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
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.

(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 patient’s 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 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.
Additionally, any known POLST or Advanced Health Care
Directives executed while the inmate patient had capacity shall be
disclosed.

(10) The petitioner’s 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 judge’s 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 patient’s 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 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.

(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 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 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 judge’s 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 patient’s 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 patient’s 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 patient’s 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 patient’s best interests.

(2) An employee begin delete or contract staff end delete 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 patient’s best begin delete interests. end delete begin insert interests and consider the
inmate patient’s personal values and other wishes to the extent
those values and wishes are known. end insert

(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 patient’s directives or desires, and specify
any such directive, order, or documented desire.

begin insert

(4) The surrogate decisionmaker shall follow the inmate
patient’s personal values and other wishes to the extent those
values and wishes are known.

end insert

(r) The administrative law judge’s written decision and order
appointing a surrogate decisionmaker shall be placed in the inmate
patient’s 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
patient’s 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.