BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 1423|
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THIRD READING
Bill No: AB 1423
Author: Mark Stone (D)
Amended: 4/20/15 in Assembly
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE: 6-0, 7/7/15
AYES: Hancock, Glazer, Leno, Liu, Monning, Stone
NO VOTE RECORDED: Anderson
SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/27/15
AYES: Lara, Bates, Beall, Hill, Leyva, Mendoza, Nielsen
ASSEMBLY FLOOR: 74-0, 5/22/15 (Consent) - See last page for
vote
SUBJECT: Prisoners: medical treatment
SOURCE: Author
DIGEST: This bill creates a new process for appointing a person
to make medical care decisions on behalf of a prison inmate who
is not competent to make such decisions, as specified.
ANALYSIS:
Existing law:
1)Specifies that a petition may be filed to determine that a
patient has the capacity to make a healthcare decision
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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.)
2)Provides, in Probate Code section 3202, that a petition to
determine capacity to make healthcare decisions may be filed
in the superior court, as specified.
3)Specifies, in Probate Code section 3203, that certain, listed
individuals, may file a petition to determine whether a
patient has capacity to make healthcare decisions.
4)Specifies, in Probate Code section 3204, that the contents of
the petition should state or set forth, by a medical
declaration attached to the petition, the following:
a) The condition of the patient's health that requires
treatment;
b) The recommended healthcare that is considered to be
medically appropriate;
c) The threat to the patient's condition if authorization
for the recommended healthcare is delayed or denied by the
court;
d) The predictable or probable outcome of the recommended
healthcare;
e) The medically available alternatives, if any, to the
recommended healthcare;
f) The efforts made to obtain consent from the patient;
g) 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;
h) The deficit or deficits in the patient's mental
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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,
i) The names and addresses, so far as they are known to the
petitioner, of the persons specified.
5)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.)
6)Provides specified notification procedures for a hearing on
capacity to make healthcare decisions. (Probate Code § 3206.)
7)States, in Probate Code section 3208, 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:
a) The existing or continuing condition of the patient's
health requires the recommended healthcare;
b) 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;
c) The patient is unable to consent to the recommended
healthcare;
d) 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
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periods of impairment;
e) 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:
i) 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.
ii) The patient is unable to consent to the recommended
healthcare.
This bill:
1)Permits a licensed physician or dentist to file a petition
with the Office of Administrative Hearings (OAH) to 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:
a) The licensed physician or dentist is treating a patient
who is an adult housed in state prison;
b) 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,
c) There is no person with legal authority to provide
informed consent for, or make decisions concerning the
health care of, the inmate patient.
2)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.
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3)Specifies the requirements of the petition filed by a licensed
physician or dentist.
4)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.
5)Requires the OAH to issue a notice appointing counsel.
6)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 his or her rights, as specified.
7)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.
8) 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.
9) 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.
10)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.
11)Requires the response to be served to all parties who were
served with the initial petition and the attorney for the
petitioner.
12)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.
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13)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.
14)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 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.
15)Permits annual renewals of existing orders appointing a
surrogate decision maker, as specified.
16)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.
17)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.
18)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.
19)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.
20)Permits, if certain findings are made, the ALJ to appoint a
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surrogate decision maker for health care for the inmate
patient.
21)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:
a) 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.
b) The individual is a health care staff member in a
managerial position and does not provide direct care to the
inmate patient, as specified.
22)Requires the ALJ's written decision and order appointing a
surrogate decision maker to be placed in the inmate patient's
health care record.
Background
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.
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
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
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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.
[NOTE: See Senate Public Safety Committee analysis for a full
discussion]
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: No
According to the Senate Appropriations Committee, the fiscal
impact includes:
Potential one-time costs of about $100,000 (General Fund) to
CDCR to the extent regulations are developed for this process.
Future minor net cost savings of about $20,000 (General Fund)
annually resulting from reduced CDCR administrative costs
formerly incurred to participate in probate court proceedings.
Potential future cost savings (General Fund) to the California
Correctional Health Care Services resulting from the revised
process.
Minor, absorbable costs (General Fund) to the Office of
Administrative Hearings (OAH) to contract with CDCR for this
process.
SUPPORT: (Verified8/28/15)
California Association of Public Administrators, Public
Guardians, and Public Conservators
California Correctional Health Care Services
California Public Defenders Association
Prison Law Office
OPPOSITION: (Verified8/28/15)
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None received
ARGUMENTS IN SUPPORT: According to California Correctional
Health Care Services:
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.
ASSEMBLY FLOOR: 74-0, 5/22/15
AYES: Achadjian, Travis Allen, Baker, Bigelow, Bloom, Bonilla,
Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau,
Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly,
Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina
Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez,
Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden,
Irwin, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low,
Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin,
Nazarian, Obernolte, Patterson, Perea, Quirk, Rendon,
Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark
Stone, Thurmond, Ting, Wagner, Wilk, Williams, Wood, Atkins
NO VOTE RECORDED: Alejo, Jones, O'Donnell, Olsen, Waldron,
Weber
Prepared by:Jessica Devencenzi / PUB. S. /
8/30/15 19:12:10
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