BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 1423 Hearing Date: July 7, 2015
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|Author: |Mark Stone |
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|Version: |April 20, 2015 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|JRD |
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Subject: Prisoners: Medical Treatment
HISTORY
Source: Author
Prior Legislation:SB 1412 (Nielsen) - Chapter 759, Statutes of
2014
AB 1907 (Lowenthal) - Chapter 814, Statutes of
2012
AB 1114 (Lowenthal) - Chapter 665, Statutes of
2011
Support: California Association of Public Administrators,
Public Guardians, and Public Conservators; California
Correctional Health Care Services; California Public
Defenders Association; Prison Law Office
Opposition:None known
Assembly Floor Vote: 74 - 0
PURPOSE
The purpose of this legislation is to create a new process for
appointing a person to make medical care decisions on behalf of
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a prison inmate who is not competent to make such decisions, as
specified.
Existing law 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. A petition may
also 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. (Probate Code § 3201.)
Existing law provides that a petition to determine capacity to
make healthcare decisions may be filed in the superior court of
any of the following counties:
The county in which the patient resides;
The county in which the patient is temporarily living;
or
Any other county as may be in the best interests of the
patient.
(Probate Code § 3202.)
Existing law specifies the person who may file a petition to
determine whether a patient has capacity to make healthcare
decisions as any of the following:
The patient;
The patient's spouse;
A relative or friend of the patient, or other interested
person, including the patient's agent under a power of
attorney for healthcare;
The patient's physician;
A person acting on behalf of the healthcare institution
in which the patient is located if the patient is in a
healthcare institution; or
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.
(Probate Code § 3203.)
Existing law specifies that the contents of the petition should
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state or set forth, by a medical declaration attached to the
petition, the following:
The condition of the patient's health that requires
treatment;
The recommended healthcare that is considered to be
medically appropriate;
The threat to the patient's condition if authorization
for the recommended healthcare is delayed or denied by the
court;
The predictable or probable outcome of the recommended
healthcare;
The medically available alternatives, if any, to the
recommended healthcare;
The efforts made to obtain consent from the patient;
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;
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; and
The names and addresses, so far as they are known to the
petitioner, of the persons specified.
(Probate Code § 3204.)
Existing law 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. (Probate Code § 3205.)
Existing law provides specified notification procedures for a
hearing on capacity to make healthcare decisions. (Probate Code
§ 3206.)
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Existing law states that, except as specified, the court may
issue 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:
The existing or continuing condition of the patient's
health requires the recommended healthcare;
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;
The patient is unable to consent to the recommended
healthcare;
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;
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:
o 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.
o The patient is unable to consent to the recommended
healthcare.
This bill 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.
This bill permits a licensed physician or dentist to file a
petition with the Office of Administrative Hearings (OAH) to
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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:
The licensed physician or dentist is treating a patient
who is an adult housed in state prison;
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; and
There is no person with legal authority to provide
informed consent for, or make decisions concerning the
health care of, the inmate patient.
This bill 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.
This bill specifies the requirements of the petition filed by a
licensed physician or dentist, must include:
The inmate patient's current physical and health care
condition;
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;
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;
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;
A discussion of whether the deficits identified are
transient, fixed, or likely to change during the proposed
year-long duration of the court order;
The efforts made to obtain informed consent or refusal
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from the inmate patient and the results of those efforts;
The efforts made to locate next of kin who could act as
a surrogate decision maker for the inmate patient;
The probable impact on the inmate patient with, or
without, the appointment of a surrogate decision maker;
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;
Requires any known POLST or Advanced Health Care
Directives executed while the inmate patient had capacity
to be disclosed; and
The petitioner's recommendation specifying a qualified
and willing surrogate decision maker, if such an individual
exists, and the reasons for that recommendation.
This bill 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.
This bill requires the OAH to issue a notice appointing counsel.
This bill 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:
His or her right to be present at the hearing;
His or her right to be represented by counsel at all
stages of the proceedings;
His or her right to present evidence;
His or her right to cross-examine witnesses;
The right of either party to seek one reconsideration of
the ALJ's decision per calendar year;
His or her right to file a petition for writ of
administrative mandamus in superior court; and
His or her right to file a petition for writ of habeas
corpus in superior court with respect to any decision.
This bill requires counsel for the inmate patient to have access
to all relevant medical and central file records for the inmate
patient.
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This bill prohibits counsel for the inmate patient from having
access to materials unrelated to medical treatment located in
the confidential section of the inmate patient's central file.
This bill 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.
This bill 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.
This bill 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.
This bill requires the response to be served to all parties who
were served with the initial petition and the attorney for the
petitioner.
This bill 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.
This bill 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.
This bill 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. The motion may seek to review the
decision for the necessity of a surrogate decision maker, the
individual appointed under the order, or both. And, prohibits
the motion for reconsideration from requiring formal rehearing
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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.
This bill permits annual renewals of existing orders appointing
a surrogate decision maker, as specified.
This bill 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 maker.
This bill 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.
This bill 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.
This bill 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.
This bill 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.
This bill 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 the
determination or appointment, or any treatment decision by the
surrogate decision maker.
This bill absolves a licensed physician or other health care
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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.
This bill permits, if all of the following findings are made,
the ALJ to appoint a surrogate decision maker for health care
for the inmate patient:
Adequate notice and an opportunity to be heard has been
given to the inmate patient and his or her counsel;
Reasonable efforts have been made to obtain informed
consent from the inmate patient;
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
Reasonable efforts have been made to identify family
members or relatives who could serve as a surrogate
decision maker for the inmate patient.
This bill prohibits an employee or contract staff of California
Department of Corrections and Rehabilitation (CDCR) or other
peace officer, from being appointed surrogate decision maker for
health care for any inmate patient unless either of the
following conditions apply:
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.
The individual is a health care staff member in a
managerial position and does not provide direct care to the
inmate patient, as specified.
This bill requires the ALJ's written decision and order
appointing a surrogate decision maker to be placed in the inmate
patient's health care record.
This bill specifies that an order appointing a surrogate
decision maker be entered under this section is valid for one
year and requires that the expiration date be written on the
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order.
This bill specifies that the order appointing a surrogate
decision maker is valid at any state correctional facility
within California.
This bill requires that, if the inmate patient is moved, the
sending institution inform the receiving institution of the
existence of an order appointing a surrogate decision maker.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past eight years, this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In February of this year the administration reported that as "of
February 11, 2015, 112,993 inmates were housed in the State's 34
adult institutions, which amounts to 136.6% of design bed
capacity, and 8,828 inmates were housed in out-of-state
facilities. This current population is now below the
court-ordered reduction to 137.5% of design bed capacity." (
Defendants' February 2015 Status Report In Response To February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).
While significant gains have been made in reducing the prison
population, the state now must stabilize these advances and
demonstrate to the federal court that California has in place
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the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
The California Department of Corrections and
Rehabilitation (CDCR) has a growing population of
elderly inmates, a complex population that has
increasingly complicated and acute medical conditions.
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 work well in a
correctional setting. A readily available process is
required to ensure that an appropriate, qualified
person is designated to act on behalf of a medically
or mentally compromised inmate-patient.
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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 inmate-patients 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 administrating psychiatric medication
to inmates, which establishes due process through
required participation from Administrative Law Judges
and inmate counsel. If the ALJ determines that the
inmate patient-lacks capacity, the ALJ may appoint a
surrogate decision maker that would be required to make
decisions in the best interests of the inmate-patient.
Whenever possible, a family member or a relative of the
inmate-patient would be appointed as the surrogate
decision-maker.
2. Effect of Legislation
CDCR prison census data indicates there is a growing population
of elderly inmates, a population that, as the author notes, has
increasingly complicated and acute medical conditions.
Prisoner's Age
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| |50-54 |55-59 |60+ |
|-----+-------+------+-------|
|1998 |5,081 |2,292 |1,868 |
|-----+-------+------+-------|
|2013 |12,724 |7,665 |7,191 |
| | | | |
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The existing conservatorship process presents a number of
hurdles for prison medical staff attempting to conserve inmates.
This process requires that staff go through the superior court
of the county in which the inmate is housed whenever a medical
emergency arises, or an episodic injury occurs that
incapacitates an inmate. Going through this process takes six
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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 his or her condition because of
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, healthcare information cannot be dissemination until
a court issues an order.
This bill creates a new process with existing procedures in the
prison system. That is, under existing practices administrative
law judges already hold hearings in California State Prisons,
called Keyea hearings. Permitting healthcare decisions to be
heard at these administrative proceedings would arguably shorten
the existing wait times, which will benefit inmate-patients and
their families.
3. 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.
-- END -
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