Cal. Code Regs. Tit. 15, § 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.
Notes
Note: Authority cited: Section 5058, Penal Code. Reference: Sections 2600 and 2602, Penal Code.
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