Section 3999.346 - Involuntary Medication Hearing Procedures(a) Initial involuntary medication proceedings shall be legibly documented and noticed by CDCR MH-7363, Involuntary Medication Notice, and CDCR MH-7366, Inmate Rights Notice-Involuntary Medication. Any information that will not fit on the initial Involuntary Medication Notice form (CDCR MH-7363) should be put on the CDCR MH-7363-B, Involuntary Medication Notice: ADD-A-PAGE. These forms may be either dictated, filled out by hand or by computer, and served to the patient, the patient's appointed or retained attorney, and the state's attorney. The patient shall be personally served. A copy shall be filed with the Office of Administrative Hearings the same day the patient is served with CDCR MH-7363 and CDCR MH-7366.(b) Renewal involuntary medication proceedings shall be legibly documented and noticed by CDCR MH-7368, Renewal of Involuntary Medication Notice, and CDCR MH-7366. Any information that will not fit on the CDCR MH-7368 should be put on the CDCR MH-7368-B, Renewal of Involuntary Medication Notice: ADD-A-PAGE. These forms may be either dictated or filled out by hand or computer, and served on the patient, the patient's appointed or retained attorney, and the state's attorney. The patient shall be personally served. A copy shall be filed with the Office of Administrative Hearings the same day the patient is served with CDCR MH-7366 and CDCR MH-7368.(c) The CDCR MH-7363 and CDCR MH-7368 forms shall be reviewed and signed under penalty of perjury by a Psychiatrist prior to filing with the Office of Administrative Hearings. Declarations signed under penalty of perjury may utilize digital authentication and verification by a Psychiatrist to facilitate electronic transmission. Staff such as Psychologists, nurses, Psychiatric Technicians, and Licensed Clinical Social Workers who work with a Psychiatrist may be used to record observations or help gather necessary data to complete portions of the CDCR MH-7363 or CDCR MH-7368.(d) Pleadings that affect the substantial rights of the patient, such as the addition of a new factual basis, or the dismissal of a case, shall be served on the patient and the patient's attorney. Supplemental petitions, notices from the Office of Administrative Hearings, and orders setting a matter for hearing do not need to be served on the patient, but must be served on the patient's attorney.(e) Next of kin are not notified unless the patient requests they be notified.(f) The institution's Medication Court Administrator (MCA) shall collect and securely transmit appropriate supporting documentation of any filed petition by electronic means to both state and patient attorneys within three business days from the date of service on the patient. In the unlikely event this is not possible, the institution should attempt to allow the patient's attorney access to view the pertinent records on site prior to the hearing.(g) In any proceeding involving a condemned patient, a digital version of any petition initiating or renewing the involuntary medication order shall be sent by the institution's MCA to the California Appellate Project via email to keyhea@capsf.org, who will act as a distribution point for involved capital attorneys, and to the Department of Justice, Capital Unit. This is a courtesy notice, and the Office of Administrative Hearings shall continue to appoint an attorney for the patient unless an outside retained attorney enters an appearance. Administrative Law Judges (ALJ) shall retain the discretion to manage all aspects of the hearing and courtroom process on the day of the hearing.(h) On or before the day of hearing, the institution shall provide a space for patient counsel and each patient-client to meet confidentially.(i) On the day of the hearing, the patient shall again be given the advisements listed in Penal Code (PC) section 2602(c)(7)(B) and further advised that he or she may attend the hearing and, if mentally capable, may elect to personally agree to the petition in the presence of the ALJ, or may contest the petition with the assistance of counsel. In the event the patient refuses to meet with his/her attorney, the advisements may be given to the patient by a sworn correctional officer or by a sworn MCA.(j) The judicial hearing for an order authorizing the involuntary administration of psychiatric medication to a patient shall be conducted by an ALJ. The hearing shall be conducted at the institution or facility designated in the petition that has been served on the patient.(k) The patient shall be brought to the hearing unless one of the following exceptions has occurred: (1) Where the patient is unable to attend the hearing by reason of a medical inability. CDCR shall establish the patient's medical inability by declaration or testimony of a medical doctor, Psychiatrist or Psychologist. Emotional or psychological instability is not good cause for the absence of the patient from the hearing unless, by reason of such instability, attendance at the hearing is likely to cause serious and immediate physiological damage to the patient. The ALJ and the attorneys may conduct a hearing in a Mental Health Crisis Bed or other medical setting as long as safety precautions are in place.(2) If a sworn correctional officer or other CDCR employee indicates that the patient is not willing to attend the hearing or that 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 MCA, the patient's attorney, or other sworn person to do the following:(A) Interview the patient personally and provide enough facts to allow the judge to determine whether the patient is competent to knowingly and intelligently waive his or her attendance at the hearing.(B) Inform the patient of the contents of the petition, of the nature, purpose and effect of the proceeding, the right of the patient to attend the hearing, to oppose the request for involuntary medication, 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.(C) 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.(D) Determine whether the patient wants to contest the petition.(E) 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.(l) The ALJ shall take sworn testimony from the person who contacted the patient to establish that the patient had capacity to enter into a waiver of appearance and that the waiver was knowing and voluntary.(m) After receiving this information, the ALJ must make an express finding that the patient's presence at the hearing is excused and/or find that the patient has made a knowing and intelligent waiver of his or her right to be present at the hearing. If any party raises a question as to the patient's competency to waive presence at the hearing, the judge should order the patient brought to the hearing, or conduct the hearing at the patient's cell.(n) If the patient is unable to attend the hearing due to a medical condition, the ALJ may continue the hearing if it appears that the patient will be able to attend the hearing within a reasonable time, order that involuntary medication of the patient may be administered until the new hearing date, or proceed with the hearing in the absence of the patient if it appears that the patient's medical condition will preclude his or her appearance within a reasonable time period.(o) Where feasible, renewal interviews shall be conducted in person with the patient by a Psychiatrist. When it is not possible to conduct the interview in person, the use of telepsychiatry (video conference) is acceptable.(p) Patients subject to involuntary medication who wish to seek reconsideration pursuant to PC section 2602(c)(10) shall be provided a CDCR MH-7369, Penal Code Section 2602 Reconsideration. The patient shall be responsible for sending the form as legal mail to the Office of Administrative Hearings within one year of the decision for which review is sought. The Office of Administrative Hearings shall notice all involved parties of its decision on the patient's reconsideration application.(q) Termination of psychiatric medication and re-initiation, if warranted. In any situation where the prescribing physician or an ALJ orders termination of psychiatric medication, regardless of the reason, the patient shall be withdrawn from the medication in a medically appropriate manner consistent with standards of professional practice. In the event the patient then begins to show signs or symptoms that would warrant re-initiation of involuntary medication, clinicians must allow 72 hours between the termination of the earlier medication event before starting a new medication event. Under no circumstances does this section prohibit a physician from acting in a medical emergency.Cal. Code Regs. Tit. 15, § 3999.346
1. Change without regulatory effect renumbering former section 3364.2 to new section 3999.346, including amendment of section and NOTE, filed 4-15-2019 pursuant to section 100, title 1, California Code of Regulations (Register 2019, No. 16). Note: Authority cited: Section 5058, Penal Code. Reference: Sections 2600 and 2602, Penal Code.
1. Change without regulatory effect renumbering former section 3364.2 to new section 3999.346, including amendment of section and Note, filed 4-15-2019 pursuant to section 100, title 1, California Code of Regulations (Register 2019, No. 16).