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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| |Health | |19 - 0 |
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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.
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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