BILL ANALYSIS Ó AB 1423 Page 1 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: 1)Finds and declares 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decisions relating to their own healthcare, including the decision to have life-sustaining treatment withheld or withdrawn.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 healthcare decision making are inadequate. AB 1423 Page 2 d) 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. 2)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. 3)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: 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 healthcare decision; and c) There is no person with legal authority to provide informed consent for, or make decisions concerning the healthcare of, the inmate patient. 4)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. AB 1423 Page 3 5)Provides that the petition shall allege all of the following: a) The inmate patient's current physical condition, describing the healthcare conditions currently afflicting the inmate patient; b) 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; c) The deficit or deficits in the inmate patient's mental functions as listed as specified in the Probate Code; d) 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; e) A discussion of whether the deficits identified are transient, fixed, or likely to change during the proposed year-long duration of the court order; f) The efforts made to obtain informed consent or refusal from the inmate patient and the results of those efforts; g) 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: i) The names and addresses of the individuals; ii) Whether any information exists to suggest that any of those individuals would not act in the inmate patient's best interests; and iii) Whether any of those individuals are otherwise suitable to make healthcare decisions for the inmate AB 1423 Page 4 patient. h) The probable impact on the inmate patient with, or without, the appointment of a surrogate decision maker; i) 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 j) The petitioner's recommendation specifying a qualified and willing surrogate decision maker, and the reasons for that recommendation. 6)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. 7)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: 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 AB 1423 Page 5 administrative mandamus in superior court; and g) His or her right to file a petition for writ of habeas corpus in superior court with respect to any decision. 8)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. 9)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. 10)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. 11)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. 12)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. 13)States that in either an initial or renewal proceeding, AB 1423 Page 6 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. 14)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: a) 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; b) Provides that the renewal hearing shall be held as specified; c) 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: 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; AB 1423 Page 7 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; and vi) His or her right to file a petition for writ of administrative mandamus in superior court. vii) His or her right to file a petition for writ of habeas corpus in superior court with respect to any decision. d) 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; e) States that the renewal petition shall request the matter be reviewed by an administrative law judge, and allege all of the following: i) The current status of each of the elements requiring notification of rights of the patient; ii) Whether the inmate patient still requires a surrogate decision maker; and iii) Whether the inmate patient continues to lack capacity to give informed consent or make a healthcare decision. 15)Provides that a licensed physician or dentist who submits a petition pursuant to this section shall not be required to AB 1423 Page 8 obtain a specified court order prior to administering care that requires informed consent. 16)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: a) Seek appropriate judicial relief to review the determination or appointment by filing a petition for writ of administrative mandamus; or b) 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. 17)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. 18)Provides that the determinations required to be made shall be documented in the inmate patient's medical record. 19)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: 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 AB 1423 Page 9 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. d) Reasonable efforts have been made to identify family members or relatives who could serve as a surrogate decision maker for the inmate patient. 20)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. 21)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: 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 interests. b) 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 AB 1423 Page 10 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. 22)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. 23)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. 24)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. 25)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 AB 1423 Page 11 involuntary administration of psychiatric medication. EXISTING LAW: 1)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.) 2)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.) a) The county in which the patient resides. b) The county in which the patient is temporarily living. c) Such other county as may be in the best interests of the patient. 3)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.) a) The patient. b) The patient's spouse. c) A relative or friend of the patient, or other interested person, including the patient's agent under a power of attorney for healthcare. d) The patient's physician. e) A person acting on behalf of the healthcare institution in which the patient is located if the patient is in a healthcare institution. AB 1423 Page 12 f) 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. 4)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.) a) The condition of the patient's health that requires treatment. b) The recommended healthcare that is considered to be medically appropriate. c) The threat to the patient's condition if authorization for the recommended healthcare is delayed or denied by the court. d) The predictable or probable outcome of the recommended healthcare. e) The medically available alternatives, if any, to the recommended healthcare. f) The efforts made to obtain consent from the patient. g) 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. h) 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. i) The names and addresses, so far as they are known to the petitioner, of the persons specified. AB 1423 Page 13 5)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.) 6)Provides specified notification procedures for a hearing on capacity to make healthcare decisions. (Prob. Code, § 3206.) 7)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.) a) The existing or continuing condition of the patient's health requires the recommended healthcare. b) 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. c) The patient is unable to consent to the recommended healthcare. d) 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. e) 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 AB 1423 Page 14 of the patient if the court determines from the evidence all of the following: i) 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. ii) The patient is unable to consent to the recommended healthcare. FISCAL EFFECT: Unknown COMMENTS: 1)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." 2)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 AB 1423 Page 15 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." 3)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 AB 1423 Page 16 California State Prisons, called Keyea hearings. Permitting these administrative proceedings to handle these healthcare decisions would arguably shorten the existing wait times. 4)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." 5)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 AB 1423 Page 17 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." 6)Prior Legislation: a) 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. b) AB 1114 (Lowenthal), Chapter 665, Statues of 2011, changed the procedures for involuntarily medicating inmates of CDCR. AB 1423 Page 18 c) 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. d) 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. e) AB 1424 (Thompson), Chapter 506, Statutes of 2001, related to the involuntary medication for individuals under the Lanterman-Petris-Short Act. f) 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 AB 1423 Page 19