BILL ANALYSIS Ó
AB 1423
Page 1
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:
1)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.
2)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:
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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.
3)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.
4)Specifies the requirements of the petition filed by a licensed
physician or dentist with the OAH, which must include:
a) The inmate patient's current physical and health care
condition;
b) The inmate patient's current mental health condition
resulting in the inmate patient's inability to understand
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the nature and consequences of his or her need for care;
c) 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;
d) 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;
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;
h) The probable impact on the inmate patient with, or
without, the appointment of a surrogate decision maker;
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i) 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;
j) Requires any known POLST or Advanced Health Care
Directives executed while the inmate patient had capacity
to be disclosed; and,
aa) The petitioner's recommendation specifying a qualified
and willing surrogate decision maker, if such an individual
exists, and the reasons for that recommendation.
5)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.
6)Requires the OAH to issue a notice appointing counsel.
7)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:
a) His or her right to be present at the hearing;
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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 ALJ's decision per calendar year;
f) His or her right to file a petition for writ of
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)Requires counsel for the inmate patient to have access to all
relevant medical and central file records for the inmate
patient.
9)Prohibits counsel for the inmate patient from having access to
materials unrelated to medical treatment located in the
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confidential section of the inmate patient's central file.
10)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.
11)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.
12)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.
13)Requires the response to be served to all parties who were
served with the initial petition and the attorney for the
petitioner.
14)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.
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15)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.
16)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.
a) The motion may seek to review the decision for the
necessity of a surrogate decision maker, the individual
appointed under the order, or both.
b) 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.
17)Permits annual renewals of existing orders appointing a
surrogate decision maker, as specified.
18)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
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maker.
19)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.
20)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.
21)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.
22)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.
23)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
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the determination or appointment, or any treatment decision by
the surrogate decision maker.
24)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.
25)Permits, if all of the following findings are made, the ALJ
to appoint a surrogate decision maker for health care for the
inmate patient:
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; and,
d) Reasonable efforts have been made to identify family
members or relatives who could serve as a surrogate
decisionmaker for the inmate patient.
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26)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:
a) 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.
b) The individual is a health care staff member in a
managerial position and does not provide direct care to the
inmate patient, as specified.
27)Requires the ALJ's written decision and order appointing a
surrogate decisionmaker to be placed in the inmate patient's
health care record.
28)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.
29)Specifies that the order appointing a surrogate decisionmaker
is valid at any state correctional facility within California.
30)Requires that, if the inmate patient is moved, the sending
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institution inform the receiving institution of the existence
of an order appointing a surrogate decisionmaker.
31)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.
32)Permits the Secretary of CDCR to adopt regulations as
necessary.
EXISTING LAW:
1)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.
2)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.
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:
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;
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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; and,
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:
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
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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,
i) The names and addresses, so far as they are known to the
petitioner, of the persons specified.
5)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.
6)Provides specified notification procedures for a hearing on
capacity to make healthcare decisions.
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:
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; and,
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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
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; and,
ii) The patient is unable to consent to the recommended
healthcare.
FISCAL EFFECT: This bill has not yet been analyzed by a fiscal
committee.
COMMENTS:
1)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.
2)BACKGROUND.
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a) 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%.
b) 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
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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.
3)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
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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.
4)PREVIOUS 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.
b) AB 1114 (Lowenthal), Chapter 665, Statues of 2011,
changed the procedures for involuntarily medicating inmates
of CDCR.
c) SB 795 (Blakeslee), of 2011, would have changed the
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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 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.
e) AB 1424 (Thompson), Chapter 506, Statutes of 2001,
related to the involuntary medication for individuals under
the Lanterman-Petris-Short Act.
5)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
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Opposition
None on file.
Analysis Prepared by:Paula Villescaz / HEALTH / (916) 319-2097