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withdrawn.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.
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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.
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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
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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
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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,
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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;
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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
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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
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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
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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
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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.
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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.
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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
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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
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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
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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
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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.
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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
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