CDCR and California Correctional Health Care Services are successfully implementing a new law that provides a quicker way to make sure adult inmates who are not able to provide informed consent are provided with due process and ultimately a surrogate decision maker, allowing for full access to necessary health care.

The new measure, Penal Code section 2604, provides the following:

  • A procedure to have an administrative law judge (ALJ) makes a determination of a CDCR inmate’s capacity for informed consent.
  • A process to have appointment of a surrogate decision maker with an annual review by an administrative law judge.
  • An alternative to Probate Code 3200, but it can also be used in situations where the inmate may not have a serious medical condition but lacks capacity and needs, or should have a decision maker.
  • A way to give inmates more access to attend the proceeding, to include family where appropriate, and to better manage clinician time by having the hearing at the prison.
  • A way to provide faster intervention and more access to care for inmates who lack the capacity to consent.

The new law has already proven to be a big help. In a recent case where clinicians could not obtain appropriate consent from the patient, the Office of Legal Affairs was able to coordinate the selection of a surrogate, a hearing in front of an ALJ, and have a surrogate appointed by a judge, all within 48 hours.

The inmate’s counsel and next of kin cooperated, CCHCS, Office of Administrative Hearings, and the CDCR health care team worked closely together to quickly clear the path for the inmate to have the matter adjudicated and surgery scheduled before the inmate’s health was severely impacted.