California Penal Code § 2604

(a) Except as provided in subdivision (b), an adult housed in state prison is presumed to have the capacity to give informed consent and make a health care decision, to give or revoke an advance health care directive, and to designate or disqualify a surrogate. This presumption is a presumption affecting the burden of proof. (b) (1) Except as provided in Section 2602, a licensed physician or dentist may file a petition with the Office of Administrative Hearings to request that an administrative law judge make a determination as to a patient’s capacity to give informed consent or make a health care decision, and request appointment of a surrogate decisionmaker, if all of the following conditions are satisfied: (A) The licensed physician or dentist is treating a patient who is an adult housed in state prison. (B) The licensed physician or dentist is unable to obtain informed consent from the inmate patient because the physician or dentist determines that the inmate patient appears to lack capacity to give informed consent or make a health care decision. (C) There is no person with legal authority to provide informed consent for, or make decisions concerning the health care of, the inmate patient. (2) Preference shall be given to the next of kin or a family member as a surrogate decisionmaker over other potential surrogate decisionmakers unless those individuals are unsuitable or unable to serve. (c) The petition required by subdivision (b) shall allege all of the following: (1) The inmate patient’s current physical condition, describing the health care conditions currently afflicting the inmate patient. (2) The inmate patient’s current mental health condition resulting in the inmate patient’s inability to understand the nature and consequences of their need for care such that there is a lack of capacity to give informed consent or make a health care decision. (3) The deficit or deficits in the inmate patient’s mental functions as listed in subdivision (a) of Section 811 of the Probate Code. (4) An identification of a link, if any, between the deficits identified pursuant to paragraph (3) and an explanation of how the deficits identified pursuant to that paragraph result in the inmate patient’s inability to participate in a decision about their health care either knowingly and intelligently or by means of a rational thought process. (5) A discussion of whether the deficits identified pursuant to paragraph (3) are transient, fixed, or likely to change during the proposed year-long duration of the court order. (6) The efforts made to obtain informed consent or refusal from the inmate patient and the results of those efforts. (7) The efforts made to locate next of kin who could act as a surrogate decisionmaker for the inmate patient. If those individuals are located, all of the following shall also be included, so far as the information is known: (A) The names and addresses of the individuals. (B) Whether any information exists to suggest that any of those individuals would not act in the inmate patient’s best interests. (C) Whether any of those individuals are otherwise suitable to make health care decisions for the inmate patient. (8) The probable impact on the inmate patient with, or without, the appointment of a surrogate decisionmaker. (9) A discussion of the inmate patient’s desires, if known, and whether there is an advance health care directive or other documented indication of the inmate patient’s directives or desires and how those indications might influence the decision to issue an order. Additionally, any known advanced health care directives executed while the inmate patient had capacity shall be disclosed. (10) The petitioner’s recommendation specifying a qualified and willing surrogate decisionmaker as described in subdivision (q), and the reasons for that recommendation. (d) The petition shall be served on the inmate patient and the inmate patient’s counsel, and filed with the Office of Adminis

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