BILL ANALYSIS �
SB 913
Page 1
Date of Hearing: June 21, 2011
ASSEMBLY COMMITTEE ON HEALTH
William W. Monning, Chair
SB 913 (Pavley) - As Amended: April 14, 2011
SENATE VOTE : 40-0
SUBJECT : Juvenile offenders: medical care.
SUMMARY : Provides authority for a probation officer to consent
to medical care for a minor who is taken into temporary custody
under specified circumstances. Specifically, this bill :
1)Permits the probation officer to authorize a medical exam that
complies with regulations promulgated by the Corrections
Standards Authority.
2)Revises existing authority to allow the probation officer to
authorize medical, surgical, dental, or other remedial care if
the probation officer has made reasonable efforts to notify,
and obtain consent of, the parent, guardian or person standing
in loco parentis of the minor instead of the existing
requirement of mandatory notification and obtaining parental
consent or alternatively a court order.
3)Permits the probation officer to authorize additional
treatment necessary for the health of the minor recommended by
a physician as a result of the medical examination if the
minor remains in the temporary custody of the probation office
and the probation officer has made reasonable efforts to
notify and obtain the consent of the parent, guardian or
person standing in loco parentis of the minor instead of the
existing requirements of mandatory notification, parental
consent or a court order.
4)Retains the requirement that provides that if the parent or
guardian objects, the care shall only be given upon order of
the court.
EXISTING LAW :
1)Authorizes a peace officer to take a minor into temporary
custody without a warrant if the officer has reasonable cause
to believe the minor is delinquent, a ward of the court, or in
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need of medical care, as specified.
2)Provides authority for how minors who have been taken into
temporary custody can receive medical, surgical, dental, or
other remedial care.
3)Requires that the probation officer notify the parent,
guardian, or person standing in loco parentis of the minor, if
any, of the care found to be needed before the care is
provided, and if the parent, guardian, or person standing in
loco parentis objects, the care shall be given only upon order
of the court in the exercise of its discretion.
4)Authorizes the court to make an order for the performance of
the necessary care, as specified, if there is no parent or
other person capable or willing to authorize treatment.
FISCAL EFFECT : None
COMMENTS :
1)PURPOSE OF THIS BILL . According to the author, the purpose of
this bill is to authorize a probation officer to consent to
routine medical care for minors who have been taken into
temporary custody if the parent or legal guardian cannot be
located or if they do not respond to request for consent. The
author states that minors detained in juvenile facilities
often have undetected health and mental health problems. The
author argues that physicians at the juvenile facilities are
unable to determine the condition of the patient without
thorough physical examination. According to the author, this
is further complicated by the fact that if the probation
department is forced to seek a court order for medical
treatment, a separate order must be sought for each
examination or medical procedure. The author states this
creates an unnecessary and costly burden for both the court
and the facility, but more importantly, it puts the minor's
health at risk, as well as the other juvenile detainees and
staff at the detention facility. The author points to
instances of delay in obtaining care for a minor because
medical consent cannot be obtained from a parent or legal
guardian. The author further argues that delaying treatment
may ultimately land the child in the emergency room, thus
aggravating the child's medical condition, overcrowding
emergency rooms, and exacerbating medical costs.
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2)BACKGROUND . Youth come within the jurisdiction of the
juvenile court based on an allegation that they habitually
disobey their parents or are truant (status offenders) or have
engaged in criminal behavior (delinquency). The juvenile may
be taken into custody by law enforcement and detained in a
county juvenile justice facility. If the probation officer
decides to pursue the prosecution a formal proceeding may be
filed to make the youth a ward of the court. The petition is
filed within 48 hours of the minor being taken into custody.
It is filed by the probation officer in status offender cases
and in delinquency cases by the district attorney. The youth
is taken before the juvenile court before the expiration of
the next judicial day after the petition is filed. At this
initial detention hearing, the youth may be released or
detained in the juvenile hall pending adjudication. If the
minor is detained, the adjudication hearing must take place
within 15 days of the court's initial detention order. The
juvenile court considers the evidence and may declare the
minor a ward of the court or place the minor on probation
under the supervision of a probation officer. A minor who is
declared a ward may be placed in a county facility, a group
home or under parent or guardian supervision. The juvenile
court has authority to remove a parent's right to consent to
medical care once the minor is adjudicated a ward of the court
and to grant the right of primary consent to the probation
officer by court order.
According to the National Center for Youth Law (NCYL),"Consent
to Medical Treatment for Youth in the Juvenile Justice System,
California Law, A Guide for Health Care Providers," November
2009, adolescents involved with the juvenile justice system
have significant health care needs and worse health outcomes
than their peers not involved with the system. According to
the NCYL Guide, when juveniles are involuntarily confined by
the county there is a responsibility to ensure adequate
medical services are provided as specified by state law and
regulations. This includes a right to a health screen and
health evaluation. Immediately after a minor enters a county
juvenile detention facility, the facility must conduct a
medical health screening. The purpose of the screen is to
determine whether the minor has any health conditions that
could pose a hazard to the minor or anyone else at the
facility. In addition, minors also have a right to a health
evaluation within 96 hours of their admission.
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3)COUNTY JUVENILE JUSTICE STANDARDS . The Corrections Standards
Authority (CSA) (formerly the Board of Corrections) has the
responsibility to develop and maintain standards governing the
operation of local juvenile detention facilities. The CSA
also inspects local juvenile detention facilities.
Specifically, the Facilities Standards and Operation (FSO)
Division of CSA, in concert with local corrections agencies
and other experts establishes minimum standards regarding the
operation of juvenile detention facilities through the
adoption of regulations which are updated as needed. In
addition, the FSO inspects local detention facilities every
two years and assists the local agencies in their efforts to
remain in compliance with the minimum standards.
The standards pertaining to programs, procedures, health care,
nutrition, and sanitation are in Title 15 of the California
Code of Regulations. According to the Title 15 Guidelines,
effective July 2007, these minimum standards are the result of
careful consideration by facility administrators, managers,
staff, and other subject matter experts working in conjunction
with CSA Board members and staff. The Title 15 Guidelines
further explain the intent of the regulations, identify
issues, and propose options that could be considered when
developing policies and procedures for implementation. The
Title 15 Guidelines state that there are many ways to comply
with regulations and the guidelines offer ideas from
professionals in facility management, health services,
nutrition, and sanitation as to what facility administrators
might do, or at least consider, when implementing regulations.
They are neither mandatory nor limiting, nor do they cover
every possible contingency. They are intended to assist
administrators and others in understanding the regulations and
applying them to the needs of their particular detention
system.
4)CONSENT TO HEALTHCARE . Existing law and regulation specify
that all medical and dental examinations, treatments, and
procedures that require verbal or written informed consent in
the community also require that consent for confined minors.
Therefore with the exception of emergencies or where the
minor's consent is sufficient, parental consent is required.
If there is no parent, guardian, or other person standing in
loco parentis, the facility is required to obtain
authorization from the court. The Title 15 Guidelines suggest
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that the facility pursue an initial form of consent that would
allow general, routine health care services and further state
that it is highly desirable that parental or guardian consent
be obtained, whenever possible. According to the guidelines,
this allows for the appropriate involvement of parents, as
well as an opportunity to gain additional important
information about the minor, such as a history of medication
allergies. The Title 15 Guidelines further state that only
when attempts to obtain parental consent are ineffective is
the court to be utilized as a substitute. The NCYL Guide
points out that because parents may be difficult to locate and
consent difficult to obtain within 96 hours, some counties
have adopted special protocols and standing court orders
regarding consent for screening and evaluation to ensure these
screens and exams occur in a timely manner. According to the
sponsors, in Los Angeles County approximately 145 out of
approximately 1213 cases, or for about 12% the detainees, a
parent or legal guardian cannot be located.
Minors have the right to consent in certain specified
situations and the right to refuse any non-emergency
treatment, regardless of who gave consent in the first place.
The Title 15 Guidelines advise that only a court order can
override a minor's desire to refuse treatment. There are a
myriad of additional consent requirements that apply in
specific circumstances such as in the administration of
psychotropic drugs which may not be given to minors in a
juvenile facility on an involuntary basis. Finally, the Title
15 Guidelines point out that treatment beyond routine, such as
invasive surgery, requires specific informed consent and
should not be covered under a more general consent.
5)HEALTH ASSESSMENT/MEDICAL EXAMINATION. The juvenile
facilities are required to complete the mandatory health
appraisal/medical examination within 96 hours of admission to
the facility. The time frame is not modified due to weekends,
holidays, or other factors. The Title 15 regulations provide
detailed requirements that must be followed by the facility
and are modeled on the National Commission on Correctional
Health Care Standards. The exam is intended to result in a
comprehensive medical record that compiles identified problems
to be considered in the classification, treatment, and
multi-disciplinary management of the minor while in custody
and pre-release planning. The regulations include
requirements relating to how it should be conducted and by
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whom. The regulations provide that at a minimum there should
be health history, examination, laboratory and diagnostic
testing, and necessary immunizations. With regard to
immunizations, the Title 15 Guidelines provide that a two-week
time frame is allowed to avoid "over-immunization" where a
history cannot be obtained immediately. It is suggested that
whenever possible, information should be obtained from the
parents or possibly the schools.
6)SUPPORT . The County of Los Angeles, sponsors of this bill,
write in support that this bill would provide the probation
officers and the medical staff with the legal authority to
consent to, and provide routine medical care for juvenile
offenders if a parent or legal guardian cannot be found or if
they do not respond to requests for consent. The sponsors
point to the requirement of a routine physical examination of
all minors within 96-hours of being taken into custody and
detained in juvenile halls. The County of Los Angeles
explains that the routine physical examination includes, but
is not limited to, blood tests and other lab work,
immunizations, administration of medication, and X-rays, all
of which requires the consent of a parent or legal guardian.
According to the sponsor, if the parent or legal guardian
cannot be found or does not respond to requests for consent
the minor, as well as other juvenile detainees are left at
risk for undetected medical conditions. The County of Los
Angeles further argues that it is therefore critical that
statutory authority be given to county probation officers to
provide consent for routine medical examinations if the parent
or legal guardian cannot be found or does not respond to
requests for consent. The California State Association of
Counties (CSAC) writes in support that this bill provides a
sound framework whereby a probation officer may provide
consent for routine exam and may needed follow-up as long as
the probation officer had made reasonable efforts to contact
the juvenile's parents or guardian. According to CSAC,
seeking consent through the court can be a lengthy process,
taking much more than 96 hours to navigate. These situations
mean that a probation department often cannot comply with
regulations despite its best efforts and through no fault of
its own. The California Probation, Parole and Correctional
Association, in support, writes that the despite state
regulations requiring medical exams for youth detained in
juvenile facilities, the current law is ambiguous as to the
extent of the probation officer's authority to consent to
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medical exams when the parent/guardian authorized to consent
to medical care is unavailable or does not respond to the
probation officer's attempt to contact and give notice of the
need for medical exam and related medical care.
7)OPPOSE UNLESS AMENDED . Commonweal Juvenile Justice Program
(Commonweal) writes that it acknowledges the interest of the
sponsors in seeking to ensure that minors needing medical
care, beyond an emergency, will be provided when parents
cannot be located and does not oppose permitting the probation
officer to obtain a medical exam without parental consent.
Commonweal however, goes on to state that this bill goes too
far in several respects, such as relaxing the parental notice
and consent requirements in existing law. Commonweal argues
that this relaxation of the notice standard opens the door to
lax contact efforts that leave parents out of the consent loop
on medical interventions involving their children. It creates
a zone of possible abuse in which children may be misdiagnosed
or poorly treated while parents are deprived of the
opportunity to know about the situation or to engage their own
medical or dental providers. Commonweal also opposes lumping
dental treatment into the same category as most non-emergency
dental care could wait until it is clear that parents are
unavailable or uncooperative and the Court's authority to
decide comes into play. Commonweal points out that some and
perhaps many of these "temporary custody" children are status
offenders will not qualify for continued custody. This raises
the question of whether the juvenile justice system, with its
custody hook, should become the default clinic for detained
adolescents, in lieu of interventions by families, health
agencies, and community healthcare providers. Commonweal
therefore has suggested that, at a minimum, probation officers
seeking to authorize medical treatment under the provisions
proposed by this bill should be required to document, in
writing, the efforts made to locate parents and obtain their
consent. Secondly, the time period in which the probation
officer can authorize non-emergency medical care, without
parental consent should be limited to the custody period
between referral to the probation department and the detention
hearing. Commonweal has also requested that the authorization
for additional treatment be deleted as it would in effect
expand the scope of the probation officer's unilateral
authority beyond the period of to a custody period without
defined boundaries. Commonweal also has suggested a modest
expansion of the existing definition of emergency to cover
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situations cited by the sponsors such as the need for
epileptic medications or immediate treatment. Finally
Commonweal has suggested that this bill incorporate provisions
that permit some minors, under defined circumstances, to
consent or refuse consent to medical care.
8)OPPOSITION . The Youth Law Center (YLC) is opposed to this bill
to the extent that it is in intended to give consent authority
to the probation officer for the entire period of the child's
detention. YLC expresses concern that this is a significant
expansion of the existing consent authority and unnecessary
because the court can authorize care in the absence of consent
by the minor or his or her parents. According to YLC, it is
unclear why such an expansion is necessary. YLC points out
that under existing law, probation officers are required to
take immediate steps to notify a minor's parent, guardian, or
responsible relative when taking a child into custody, and if
the minor is to be detained the court must provide parents
with notice of the juvenile court petition and the detention
hearing. YLC argues that these contacts and the juvenile
facility intake process provide an opportunity for the
probation officer to obtain parental consent. YLC further
points out that if the probation officer is unable to obtain
consent during the temporary custody period, the detention
hearing provides an additional opportunity to obtain parental
consent or an initial opportunity to request a court order if
the a parent does not appear. YLC also opposes this bill
because it does not give sufficient attention to the minor's
right to consent or refuse care.
9)AUTHOR'S AMENDMENTS. The author is proposing to offer the
following amendments as suggested by the opposition:
a) Clarify that the authority of the probations officer is
limited to the initial period of temporary custody prior to
detention and adjudication;
b) Limit the scope of the authority of the probation
office's consent to obtain treatment recommended by the
exam and considered necessary for the health of the minor
based on parental consent or after reasonable efforts to
notify the parent and obtain consent;
c) Require that attempts to notify the parents be
documented;
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d) Delete the authority for additional treatment;
e) Expand the definition of "emergency situation" to
include known conditions or illnesses which, during any
period of secure detention of the minor by the probation
officer, require immediate laboratory testing, medication,
or treatment to prevent an imminent and severe or
life-threatening risk to the health of the minor; and,
f) Clarify that existing law relating to a minor's right to
consent and to refuse to consent applies.
10)DOUBLE REFERRED . This bill is double referred. Should it
pass out of this committee, it will be referred to the
Assembly Committee on Public Safety.
REGISTERED SUPPORT / OPPOSITION :
Support
Los Angeles County Board of Supervisors (sponsor)
California Probation, Parole and Correctional Association
California State Association of Counties
Chief Probation Officers of California
Los Angeles County Probation Department
Los Angeles County Sheriff's Department
Oppose unless amended
Commonweal Juvenile Justice Project
Opposition
Youth Law Center
Analysis Prepared by : Marjorie Swartz / HEALTH / (916)
319-2097