California Code of Regulations
Title 15 - Crime Prevention and Corrections
Division 3 - Adult Institutions, Programs and Parole
Chapter 2 - Rules and Regulations of Health Care Services
Subchapter 2 - Patient's Entitlements and Responsibilities
Article 1 - Provisions of Health Care Services
Section 3999.204 - Petitions for Capacity Determination

(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.

(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.

(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.

(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.

(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.

(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.

(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).

(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.

(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.