BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 1423


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          Date of Hearing:  May 13, 2015


                        ASSEMBLY COMMITTEE ON APPROPRIATIONS


                                 Jimmy Gomez, Chair


          AB  
          1423 (Mark Stone) - As Amended April 20, 2015


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          Urgency:  No  State Mandated Local Program:  NoReimbursable:  No


          SUMMARY:


          This bill creates a process for an administrative hearing to  
          determine a healthcare decision maker for incarcerated persons  
          who lack the capacity to make their own healthcare decisions.  









                                                                    AB 1423


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          FISCAL EFFECT:


          1)One-time cost of $100,000 (GF) to the California Department of  
            Corrections and Rehabilitation (CDCR) to adopt necessary  
            regulations to implement the provision of the bill.


          2)Ongoing annual savings of approximately $20,000 by eliminating  
            approximately 20 trips to Superior Court.


          3)By establishing a new protocol for obtaining consent from  
            inmates who lack capacity to give consent or refuse treatment,  
            CDCR may avoid litigation from individuals claiming that  
            CDCR's actions manifested in deliberate indifference to  
            serious medical needs of inmates.


          COMMENTS:


          1)Purpose.  According to the author, "The state faces an aging  
            prison population.  Many inmates have no remaining family ties  
            and lack capacity to sign a release of information or to  
            appoint a decision-maker.  When an inmate suffers a stroke or  
            develops dementia during a prison term, existing legal avenues  
            for obtaining consent to release information to relatives or  
            to obtain consent to a proposed course of treatment do not  
            work well in a correctional setting.  This bill will establish  
            a readily available process to ensure that an appropriate,  
            qualified person is designated to act on behalf of a medically  
            or mentally compromised inmate."

            "This bill establishes a streamlined process for obtaining  
            consent to release information to relatives or to obtain  
            consent for a proposed course of treatment for inmates  
            suffering from a debilitating medical condition that is not  








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            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."  





          2)Background.  Current law specifies that a petition may be  
            filed in Superior Court, by any number of individuals (on  
            behalf of an inmate), to determine that a patient has the  
            capacity to make a healthcare decision concerning an existing  
            or continuing condition and a petition may be filed to  
            determine that a patient lacks the capacity to make a  
            healthcare decision concerning specified treatment for an  
            existing or continuing condition, and further for an order  
            authorizing a designated person to make a healthcare decision  
            on behalf of the patient.  



            Current law also states that, except as specified, the court  
            may make an order authorizing the recommended healthcare for  
            the patient and designating a person to give consent to the  
            recommended healthcare on behalf of the patient if the court  
            so determines.





            This bill would move the Superior Court hearings into the  








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            ongoing hearing schedule (Keyhea hearing) operated by the  
            Office of Administrative Hearings in the Department of General  
            Services, and would use the already scheduled inmate counsel  
            and Administrative Law Judge (ALJ).  





          1)Argument in Support:  According to California Correctional  
            Health Care Services (CCHCS), "Currently state prisoners over  
            the age of 50 are the fastest growing segment of the prison  
            population.  As these prisoners age, many lose the capacity to  
            make medical determinations on their own, due to dementia,  
            strokes, and other debilitating medical conditions.  Under  
            existing law, prison officials are required to go through the  
            process under Probate Code Section 3200, which requires a  
            Superior court hearing to appoint an individual responsible  
            for making medical determinations for the prisoner."  
            
            "The bill is a common sense measure that will provide added  
            benefit to the inmate population by speeding up the process  
            for obtaining the necessary authority to provide treatment  
            services in cases where the inmate lacks decision making  
            capability."  

          2)Argument in Opposition:  According to Disability Rights  
            California, "This bill would establish a process for a  
            licensed physician or dentist to file a petition with the  
            Office of Administrative Hearings to request an administrative  
            law judge make a determination as to a patient's capacity to  
            give informed consent or make a health care decision, and  
            request appointment of a surrogate decision maker. The bill  
            would require the petition to contain specified information,  
            including, among other things, the inmate patient's current  
            physical condition and a description of the health care  
            conditions currently afflicting the inmate patient. 










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             "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." 





          4)Prior Legislation. AB 1114 (Lowenthal), Chapter 665, Statues  
            of 2011, changed the procedures for involuntarily medicating  
            inmates of CDCR.  











          Analysis Prepared by:Pedro Reyes / APPR. / (916)  
          319-2081