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 3 - Health Care Operations › Article 5 - Mental Health Care › Section 3999.346 - Involuntary Medication Hearing Procedures

Current through Register 2024 Notice Reg. No. 28, July 12, 2024
(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.