Section 3999.204.2 - Capacity Determination Hearings(a) Hearing location.(1) The hearing shall take place at the outside facility or institution where the patient is located.(2) On the day of the hearing, the outside facility or institution shall provide a space for the patient's attorney and each patient to meet confidentially if the patient is ambulatory. If the patient is not ambulatory, the Administrative Law Judge (ALJ) may determine how to best accommodate a meeting between the patient's attorney and the patient.(3) The ALJ and the attorneys may conduct a hearing in a medical setting as long as safety precautions are in place.(4) The ALJ may elect to hold the hearing remotely at their discretion. (A) Notwithstanding subsection (a)(4), the ALJ shall hold the hearing remotely if recommended by the California Department of Public Health or institutional leadership based on public health guidance.(b) Required appearances. (1) The patient shall be brought to the hearing unless one of the following exceptions has occurred: (A) The patient is unable to attend the hearing by reason of medical unavailability. The Department shall establish the patient's medical unavailability by declaration or testimony of a health care provider familiar with the patient's condition. Medical unavailability is presumed if the patient is at an outside facility for emergent care. The ALJ may conduct a hearing with the patient in absentia if the patient is medically unavailable.1. If the patient is unable to attend the hearing due to a medical unavailability, the ALJ may continue the hearing if it appears that the patient will be able to attend the hearing within a reasonable time; issue temporary orders based on the circumstance presented, including orders that any necessary treatment may proceed; or proceed with the hearing in the absence of the patient if it appears the patient's medical condition will preclude appearance within a reasonable time period.2. The ALJ may conduct a hearing in a Mental Health Crisis Bed, at the patient's cell or housing unit, or other medical setting as long as safety precautions are in place and custody staff is able to accommodate the ALJ's request to conduct a hearing at the selected location.(B) If a sworn correctional officer or health care staff indicates that the patient is not willing to attend the hearing, or the patient expressly chooses not to attend the hearing, or that the patient does not wish to contest the petition, the ALJ presiding over the hearing shall appoint the Medication Court Administrator (MCA), the patient's attorney, or other sworn person to do the following:1. Interview the patient personally, or in a language the patient can understand, and provide facts to allow the ALJ to determine whether the patient has capacity to knowingly and intelligently waive his or her attendance at the hearing.2. If the patient has capacity to understand the nature of the proceedings, inform the patient, in a language the patient can understand, of the contents of the petition, of the nature, purpose and effect of the proceeding, and of the following rights of the patient: the right of the patient to attend the hearing; to oppose the request for determination of capacity and appointment of a surrogate decisionmaker; to be represented by legal counsel; to confront the witnesses; to have his or her attorney cross-examine witnesses; and to testify on his or her own behalf.3. Determine whether the patient is able to attend and participate in the hearing and, if able to attend, whether the patient wishes to attend the hearing.4. Determine whether the patient wishes to contest the petition.5. Determine whether the patient wishes to speak to his or her appointed attorney or, if the patient has retained private counsel, obtain the name or any other identifying information about private counsel so that the petition and supporting documentation can be served by the MCA on privately retained counsel and a new hearing date can be set within a reasonable time for the appearance of private counsel.(2) If the licensed health care provider with the most knowledge of the patient's condition is not available to testify in person, that licensed health care provider may present either an initial case or a renewal case by way of videoconference or teleconference.(3) The ALJ may allow attendance by telephone.(A) If the recommended surrogate or alternate surrogate decisionmaker is a family member, the ALJ may direct or allow the family member to appear at the hearing by telephone.(B) Any proposed surrogate decisionmaker may request to attend the hearing by telephone.(C) A next friend may request to attend the hearing by telephone in condemned cases.(D) The MCA is responsible for ensuring that a telephone is available to facilitate testimony or attendance by telephone on the day of the hearing.(c) Timing and frequency of hearings. (1) Hearings on CDCR 7702 petitions shall be scheduled within the timeframes of Penal Code (PC), section 2604. (A) Hearings may be rescheduled based on availability of attorneys, witnesses, and/or the ALJ.(2) Upon good cause, such as the patient's clinical condition or the availability of a needed witness, the Department may seek to advance a hearing or may ask appointed counsel to stipulate to an accelerated hearing date.(d) Hearing procedure. (1) On the day of the hearing, the patient shall again be given the advisements listed in PC, section 2604(e)(1), in a language the patient can understand, and be further advised that the patient may attend the hearing and may contest the petition with the assistance of counsel. In the event the patient refuses to meet with their attorney, if the petition is the initial petition, the patient's attorney shall be taken to the patient's housing location to attempt an interview and assessment. If the petition is a renewal petition and the patient refuses to meet with their attorney, the advisements shall be given to the patient by a sworn correctional officer or by a sworn MCA.(2) The ALJ shall take sworn testimony from the individual who contacted the patient to establish that procedures were followed to obtain a knowing and intelligent waiver.(A) If the agent of the court reports the patient may have capacity or limited capacity, the ALJ shall make further inquiry before proceeding. After receiving this information, the ALJ shall make an express finding by a preponderance of evidence that the patient's presence at the hearing is excused and/or find that the patient has made a knowing and intelligent waiver of the right to be present at the hearing or is medically unavailable.(B) If any party, or the ALJ, raises a question as to the patient's capacity to waive presence at the hearing, the ALJ shall order the patient brought to the hearing, or conduct the hearing at the patient's housing unit.(3) ALJs shall retain the discretion to manage all aspects of the hearing and courtroom process on the day of the hearing.(e) Record of proceedings.(1) A record of proceedings shall be created for all hearings conducted pursuant to this section. The record consists of the findings of fact and determinations of law in the order issued by the ALJ following the hearing, the petition, all documents related to the petition, and a record of the hearing. The record shall be retained by the Department.(2) The record of hearing shall be a sound recording.(3) The ALJ shall make findings by a preponderance of evidence or by stipulation of the parties that the patient is an adult committed to State prison; that there is no person with legal authority to provide informed consent for the patient; that no valid advance directive exists that was executed while the patient had capacity and that based on the record of proceedings, the ALJ determines which proposed surrogate and proposed alternate surrogate shall be appointed. (A) The ALJ may review the CDCR 7705 for any family member who has returned the form, and shall consider the supplemental petition prepared by Office of Legal Affairs, CDCR, summarizing the available candidates and their relative suitability or lack of suitability.(B) Any expression of agreement or disagreement by the patient's family members with the contents of the petition shall be disclosed to the ALJ and the patient's attorney.(4) In the event the Department files both a PC, section 2602, and a PC, section 2604 petition, on the same patient to be heard the same day, and if the ALJ consolidates the two cases and conducts only one hearing, the ALJ shall prepare and execute separate findings and orders for each case.Cal. Code Regs. Tit. 15, § 3999.204.2
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).