BILL ANALYSIS Ó AB 1423 Page 1 Date of Hearing: May 13, 2015 ASSEMBLY COMMITTEE ON APPROPRIATIONS Jimmy Gomez, Chair AB 1423 (Mark Stone) - As Amended April 20, 2015 ----------------------------------------------------------------- |Policy |Public Safety |Vote:|6 - 0 | |Committee: | | | | | | | | | | | | | | |-------------+-------------------------------+-----+-------------| | |Health | |19 - 0 | | | | | | | | | | | |-------------+-------------------------------+-----+-------------| | | | | | | | | | | | | | | | ----------------------------------------------------------------- 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 Page 2 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 AB 1423 Page 3 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 AB 1423 Page 4 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. AB 1423 Page 5 "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