BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 1419 Hearing Date: April 19, 2016
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|Author: |Galgiani |
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|Version: |April 13, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|JRD |
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Subject: Uniform Anatomical Gift Act: Prison Inmates
HISTORY
Source: Author
Prior Legislation:SB 1395 (Alquist)-Chapter 217, Statutes of
2010
AB 2440 (Berryhill, of 2010)-died in the Assembly
Health Committee
AB 289 (Plescia, of 2003)-died in the Assembly
Health Committee
Support: Unknown
Opposition:None known
PURPOSE
The purpose of this bill is to require the Department of
Corrections and Rehabilitation (CDCR) to develop a form, as
specified, allowing a prisoner to elect to make an anatomical
gift in the event of his or her death, as specified.
Existing law establishes the Uniform Anatomical Gift Act, which
regulates the making and distribution of organ donations.
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(Health and Safety Code § 7150, et seq.)
This bill requires CDCR to develop and adopt a form that allows
a prisoner to elect to make an anatomical gift in the event of
his or her death, as specified.
This bill requires the form to be titled "Document of
Gift-Donate Life California Organ and Tissue Donor Registry" and
to have at a minimum the following characteristics:
Clearly indicates the prisoner's election to be added to
the donor registry.
Allows the prisoner to designate whether the prisoner
would like to donate his or her organs or tissues for
transplantation or research, or both.
Allows the prisoner to state any donation limitations
specifying the organs and tissues that the prisoner does
not provide legal consent to be recovered.
Contains an advisement that states all of the following:
o Electing to make an anatomical gift is
completely voluntary.
o There are no repercussions for declining to, or
benefits for agreeing to, elect to make an anatomical
gift.
o The prisoner may consult with a medical
professional or counselor about his or her decision.
o The prisoner may revoke his or her election to
make an anatomical gift at any time, as specified.
Contains a statement notifying the prisoner that by
signing or placing his or her mark on the form that the
prisoner is legally authorizing the recovery of organs or
tissues in the event of his or her death; and,
Contains the prisoner's signature or mark if the
prisoner cannot write.
This bill requires the form to be presented to the prisoner upon
his or her first admittance into the state prison system and
allows the prisoner to elect to sign the form or refuse to sign
at that time.
This bill requires the form to be made available for completion
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and signature at the prisoner's request, consistent with the
policies and procedures of CDCR.
This bill allows the prisoner to revoke his or her election to
make an anatomical gift at any time by delivery of a written
statement to the official in charge of the facility where the
prisoner is confined. Also, requires CDCR, upon receipt of this
statement to mark the form above as revoked and to retain the
revoked document of gift and the statement revoking the gift in
the prisoner's central file.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past several 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 December of 2015 the administration reported that as "of
December 9, 2015, 112,510 inmates were housed in the State's 34
adult institutions, which amounts to 136.0% of design bed
capacity, and 5,264 inmates were housed in out-of-state
facilities. The current population is 1,212 inmates below the
final court-ordered population benchmark of 137.5% of design bed
capacity, and has been under that benchmark since February
2015." (Defendants' December 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).) One
year ago, 115,826 inmates were housed in the State's 34 adult
institutions, which amounted to 140.0% of design bed capacity,
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and 8,864 inmates were housed in out-of-state facilities.
(Defendants' December 2014 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 must stabilize these advances and
demonstrate to the federal court that California has in place
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 Legislation
According to the author:
California's Health and Safety Code does not provide a process
for prison inmate organ donation. Currently, inmates who
would like to sign up to be an organ donor are not provided a
chance to register, as there is no official procedure in
place. Federally, the Federal Bureau of Prisons allows organ
and tissue donation by inmates only when the recipient is a
member of the inmate donor's immediate family, defined as
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parents, siblings, and biological children.
The United States is currently facing a shortage of anatomical
gift donors, with California making up 20% of the national
donor waiting list. Additionally, less than one percent of
hospital deaths meet the criteria for organ donation. It is
estimated that one individual organ donor can save the lives
of up to eight people, and tissue donors can help more than 50
people. Due to the fact that there is no process in place to
provide inmates with the chance to donate, potential donors
are prevented from registering. This bill will create a
voluntary process for an inmate to register as an organ donor,
which could increase the donor pool. It is important to note
that this bill also requires a process to be in place for the
inmate to remove him- or herself from registration at any
time. In Utah, where similar legislation allowing for
voluntary sign up has been enacted into law, over 250 inmates
have signed up.
2. The Organ Procurement and Transplantation Network
The Organ Procurement and Transplantation Network (OPTN) is a
public-private partnership that links all professionals involved
in the United States donation and transplantation system. The
United Network for Organ Sharing (UNOS) serves as the OPTN under
contract with the Health Resources and Services Administration
of the U.S. Department of Health and Human Services. Currently,
every transplant hospital program and organ procurement
organization in the U.S. is an OPTN member. Membership means
that their transplant programs are certified by UNOS and that
they play an active role in forming the policies that govern the
transplant community. In California, there are 21 transplant
centers (hospitals) and four organ procurement organizations
(OPOs), which are authorized by the Centers for Medicare and
Medicaid Services to procure organs for transplantation. Each
individual hospital comes up with their own policies to evaluate
patients and determine eligibility to receive an organ
transplant. UNOS develops the policies to determine how
available organs are distributed among eligible patients waiting
for a transplant. According to Donate Life California's Web
site, there are currently more than 123,000 people in the U.S.
waiting for a life-saving organ transplant, and nearly 22,000
live in California. Every 10 minutes another person is added to
the waiting list.
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3. Effect of this Legislation
According to CDCR, inmates are screened at intake by a nurse to
identify any physical and mental health care needs. The inmate
is tested for tuberculosis and hepatitis C, and, if requested,
for HIV. Within 14 days of entering CDCR's custody, all inmates
undergo a comprehensive medical evaluation in which a physician
obtains a medical history from the inmate. Any information
obtained during the medical evaluation is self-disclosed by the
inmate, as CDCR does not have access to any prior medical
records. Any process involving informed consent is required to
be done by a physician during the comprehensive medical
evaluation. CDCR does not solicit an inmate's interest in being
an organ and tissue donor. Inmates are responsible for
disclosing whether they are already registered as organ and
tissue donors during the medical evaluation, and that
information is noted in the medical record.
CDCR provides an Advance Directive for Health Care to an inmate
if it is requested specifically by the inmate or the inmate's
medical condition warrants it because the inmate is facing a
life-threatening condition or treatment. This document consists
of a durable power of attorney, which allows inmates to
designate someone to make decisions on their behalf if they are
unable to do it on their own, and a living will, which allows
inmates to state their goals or desires for the types of health
care they do or do not want. The advance directive form
includes an optional section for an inmate to choose whether or
not he or she is willing to donate organs or other tissues upon
death. If an inmate chooses to complete this part of the form,
the inmate is instructed to check the box that applies to the
inmate's wish. The inmate may give any needed organs or
tissues, may specify which organs and tissues he or she wants to
donate, or may select the box choosing not to donate. The inmate
may also designate whether his or her gift is for purposes of
transplantation, therapy, research, or education. Before an
inmate signs the advance directive, a medical staff person is
required to document that the inmate has been fully informed and
understands the form, and two additional witnesses are required
to verify that the inmate has willingly signed the form and
completed it according to the inmate's wishes.
This bill would require that, in addition to the form currently
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provided, CDCR provide an inmate with an organ donation form
upon first admittance.
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