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

          
                            ---------------------------- 
                           |     |50-54  |55-59 |60+    |
                           |-----+-------+------+-------|
                           |1998 |5,081  |2,292 |1,868  |
                           |-----+-------+------+-------|
                           |2013 |12,724 |7,665 |7,191  |
                           |     |       |      |       |
                            ---------------------------- 

          
          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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