Section 3999.204 - Petitions for Capacity Determination(a) Preparation of petition.(1) Initial proceedings to determine a patient's capacity to give informed consent and make a health care decision shall be legibly documented and noticed by the CDCR 7702, Petition for Capacity Determination, and CDCR 7701, Penal Code 2604 Rights.(2) These forms may be dictated, completed by hand, or completed on computer. (A) Clinical or administrative staff may help gather necessary data or record observations to complete portions of the forms as needed.(3) Additional pages may be added using the CDCR 7702-A, Petition for Capacity Determination-Additional Page.(4) The CDCR 7702 shall be verified by the declarant pursuant to California Code of Civil Procedure section 446, prior to filing.(A) The CDCR 7702 shall be reviewed and signed under penalty of perjury by the licensed health care provider who completes the petition prior to filing with the Office of Administrative Hearings (OAH).(B) Petitions signed under penalty of perjury may utilize digital authentication and verification to facilitate electronic transmission.(b) Supplemental petitions. (1) Office of Legal Affairs, California Department of Corrections and Rehabilitation (OLA) shall file a supplemental petition prior to any hearing. The supplemental petition shall be served on counsel appointed by OAH.(2) The supplemental petition shall include the Department's recommendation for an appointed surrogate and an alternate appointed surrogate.(c) Identification of surrogate decisionmaker.(1) The OLA shall attempt to locate and contact family members identified in the petition, or identifiable from the patient's chart, who are potential surrogate decisionmakers. OLA shall utilize the CDCR 7705, Confidential Surrogate Decisionmaker Screening, to ensure consistency of data when contacting potential surrogate decisionmakers. The CDCR 7705 will be confidential and not part of the administrative filing but may be shared with the Administrative Law Judge (ALJ) or patient's attorney upon request or direction from the ALJ. Each potential surrogate decisionmaker shall be asked to fill out background information on a CDCR 7705. (A) Evaluation of the suitability of family members as potential surrogate decisionmakers shall be conducted by OLA.(B) If the Department is recommending a particular family member to the exclusion of other candidates, the Department shall articulate its reasoning in the supplemental petition, and confirm the proposed candidate's willingness to act on behalf of the patient.(2) If there is no suitable family member to serve as surrogate decisionmaker, the Department may recommend an institutional executive not directly involved in the patient's care or have the Health Care Ethics Committee serve as surrogate decisionmaker for the patient.(3) The patient's attorney may attempt to contact the potential surrogate decisionmakers as identified either by the patient or by OLA.(d) Service of petition. (1) The completed petition and notice of rights shall be served on the patient, the patient's appointed or retained attorney, and the State's attorney.(2) The patient shall be personally served. (A) For purposes of this section, personal service means the patient receives the forms CDCR 7701 and the CDCR 7702.(B) In cases where the patient may not be able to communicate and/or the patient meets any of the criteria listed in section 3999.201(a), the person serving the forms shall document efforts made at effective communication to the patient pursuant to section 3999.201.(3) A copy shall be filed electronically with OAH the same day the patient is served with the CDCR 7701 and CDCR 7702.(4) The institution's Medication Court Administrator (MCA) shall collect and securely transmit supporting documentation of any filed petition, as well as contact information for family members who may have an interest in the case, by electronic means to both the State's and patient's attorney within seven business days from the date of service on the patient.(5) The outside facility or institution shall allow the patient's attorney access to view the pertinent records on site prior to the hearing, if the patient's attorney was not previously served under subsection (c)(4).(e) Independent expert. (1) If the petition alleges a health care condition that a reasonably competent attorney could not properly investigate or litigate by speaking to the declarant in the petition, the patient's attorney may request in writing that the ALJ appoint an independent expert to evaluate the patient at the Department's expense.(2) The Department shall have seven business days to respond to any such request.(3) The decision to appoint an independent expert is at the discretion of the ALJ to make a finding by a preponderance that the case cannot be fairly presented without an additional expert.(f) Condemned patients.(1) In any proceeding involving a condemned patient, in addition to service under subsection (b), a digital version of any petition initiating or renewing a capacity determination shall be sent by the institution's MCA to the California Appellate Project via encrypted or secure email to keyhea@capsf.org.(2) Service under this subsection shall not include discovery materials.(3) OAH shall retain the authority to appoint an attorney, unless an attorney from the California Appellate Project or an attorney otherwise retained on behalf of the patient enters an appearance on behalf of the condemned patient.Cal. Code Regs. Tit. 15, § 3999.204
1. New section filed 3-1-2021; operative 3-1-2021 pursuant to Government Code section 11343.4(b)(3) (Register 2021, No. 10). Note: Authority cited: Section 5058, Penal Code. Reference: Sections 2604 and 5054, Penal Code.
1. New section filed 3-1-2021; operative 3/1/2021 pursuant to Government Code section 11343.4(b)(3) (Register 2021, No. 10).