Article 2. Organic Therapy of California Penal Code >> Title 1. >> Part 3. >> Chapter 4. >> Article 2.

It is hereby recognized and declared that all persons, including all persons involuntarily confined, have a fundamental right against enforced interference with their thought processes, states of mind, and patterns of mentation through the use of organic therapies; that this fundamental right requires that no person with the capacity for informed consent who refuses organic therapy shall be compelled to undergo such therapy; and that in order to justify the use of organic therapy upon a person who lacks the capacity for informed consent, other than psychosurgery as referred to in subdivision (c) of Section 2670.5 which is not to be administered to such persons, the state shall establish that the organic therapy would be beneficial to the person, that there is a compelling interest in administering such therapy, and that there are no less onerous alternatives to such therapy.

(a) No person confined or detained under Title 1 (commencing with Section 2000) and Title 2 (commencing with Section 3200) shall be administered or subjected to any organic therapy as defined in subdivision (c) without his or her informed consent, provided that:
  (1) If the person gives his or her informed consent to organic therapy, it shall be administered only if there has been compliance with Sections 2675 to 2680, inclusive.
  (2) If the person lacks the capacity for informed consent to organic therapy other than psychosurgery as referred to in subdivision (c), in order to proceed with the therapy, the warden shall secure an order from the superior court to authorize the administration of the therapy in accordance with Sections 2675 to 2680, inclusive.
  (b) No person confined or detained under Title 1 (commencing with Section 2000) or Title 2 (commencing with Section 3200) who lacks the capacity for informed consent shall be administered or subjected to psychosurgery as referred to in subdivision (c).
  (c) The term organic therapy refers to:
  (1) Psychosurgery, including lobotomy, stereotactic surgery, electronic, chemical or other destruction of brain tissues, or implantation of electrodes into brain tissue.
  (2) Shock therapy, including, but not limited to, any convulsive therapy and insulin shock treatments.
  (3) The use of any drugs, electric shocks, electronic stimulation of the brain, or infliction of physical pain when used as an aversive or reinforcing stimulus in a program of aversive, classical, or operant conditioning.
  (d) A person does not waive his or her right to refuse any organic therapy by having previously given his or her informed consent to the therapy, and the person may withdraw his or her consent at any time. If required by sound medical-psychiatric practice, the attending physician shall, after the person withdraws his or her previously given informed consent, gradually phase the person out of the therapy if sudden cessation would create a serious risk of mental or physical harm to the person.
  (e) Nothing in this article shall be construed to prevent the attending physician from administering nonorganic therapies such as psychotherapy, psychoanalysis, group therapy, milieu therapy, or other therapies or programs involving communication or interaction among physicians, patients, and others, with or without the use of drugs when used for purposes other than described in paragraph (3) of subdivision (c).
  (f) Nothing in this article shall be construed to prevent the administration of drugs not connected with a program of conditioning and intended to cause negative physical reactions to ingestion of alcohol or drugs.

(a) Notwithstanding Section 2670.5, if a confined person has inflicted or attempted to inflict substantial physical harm upon the person of another or himself, or presents, as a result of mental disorder, an imminent threat of substantial harm to others or himself, the attending physician may in such emergency employ or authorize for no longer than seven days in any three-month period the immediate use of shock treatments in order to alleviate such danger.
  (b) Notwithstanding Section 2670.5, if a confined person gives his informed consent to a program of shock therapy for a period not to exceed three months, the attending physician may administer such therapy for a period not to exceed three months in any one-year period without prior judicial authorization.

(a) For purposes of this article, "informed consent" means that a person must knowingly and intelligently, without duress or coercion, and clearly and explicitly manifest his consent to the proposed organic therapy to the attending physician.
  (b) A person confined shall not be deemed incapable of informed consent solely by virtue of being diagnosed with a mental health disorder.
  (c) A person confined shall be deemed incapable of informed consent if the person cannot understand, or knowingly and intelligently act upon, the information specified in Section 2673.
  (d) A person confined shall be deemed incapable of informed consent if, for any reason, he or she cannot manifest his or her consent to the attending physician.

(a) For purposes of this article, "informed consent" requires that the attending physician directly communicate with the person and clearly and explicitly provide all the following information prior to the person's decision:
  (1) The nature and seriousness of the person's illness, disorder or defect.
  (2) The nature of the proposed organic therapy and its intended duration.
  (3) The likelihood of improvement or deterioration, temporary or permanent, without the administration of the proposed organic therapy.
  (4) The likelihood and degree of improvement, remission, control, or cure resulting from the administration of such organic therapy, and the likelihood, nature, and extent of changes in and intrusions upon the person's personality and patterns of behavior and thought or mentation and the degree to which these changes may be irreversible. This information shall indicate the probable duration and intensity of such therapy and whether such therapy may have to be continued indefinitely for optimum therapeutic benefit.
  (5) The likelihood, nature, extent, and duration of side effects of the proposed organic therapy, and how and to what extent they may be controlled, if at all.
  (6) The uncertainty of the benefits and hazards of the proposed organic therapy because of the lack of sufficient data available to the medical profession, or any other reason for such uncertainty.
  (7) The reasonable alternative organic therapy or psychotherapeutic modality of therapy, or nonorganic behavior modification programs, and why the organic therapy recommended is the therapy of choice. These alternatives shall be described and explained to the person in the manner specified in this section.
  (8) Whether the proposed therapy is generally regarded as sound by the medical profession, or is considered experimental.

A written manifestation of informed consent shall be obtained in all cases by the attending physician and shall be preserved and available to the person, his attorney, his guardian, or his conservator.

(a) If the proposed organic therapy is not prohibited by subdivision (a) or (b) of Section 2670.5, then in order to administer the therapy the warden of the institution in which the person is confined shall petition the superior court of the county in which the person is confined for an order authorizing such organic therapy.
  (b) The petition shall summarize the facts which the attending physician is required to communicate to the person pursuant to Section 2673, and shall state whether the person has the capacity for informed consent, and, if so, whether the person has given his or her informed consent to the proposed therapy. The petition shall clearly specify what organic therapy the institution proposes to administer to the person. The petition shall specify what mental illness, disorder, abnormality, or defect justifies the administration of such therapy. Copies of the petition shall be personally served upon the person and served upon his or her attorney, guardian or conservator on the same day as it is filed with the clerk of the superior court.
  (c) The person confined, or his or her attorney, guardian, or conservator may file a response to the petition for organic therapy. The response shall be filed no later than 10 days after service of the petition unless the court grants a continuance not to exceed 10 additional days, and shall be served on the warden on the same day it is filed.

(a) Any person, or his or her attorney, guardian, or conservator may file a petition with the superior court of the county in which he or she is confined for an order to prohibit the administration upon him or her of an organic therapy. The filing of such a petition shall constitute a refusal of consent or withdrawal of any prior consent to an organic therapy. The clerk of the court shall serve a copy of the petition, on the same day it is filed, upon the warden.
  (b) The warden shall file a response to the petition to prohibit the enforced administration of any organic therapy. The response shall be filed no later than 10 days after the filing of the petition, unless the court grants a continuance not to exceed 10 additional days, and shall be personally served upon the person and served upon his or her attorney, guardian, or conservator on the same day as it is filed with the clerk of the superior court. The response shall not constitute a petition for an order to proceed with any organic therapy pursuant to Section 2675, which shall be the exclusive procedure for authorization to administer any organic therapy.

At the time of filing of a petition pursuant to Section 2676 by the person, or pursuant to Section 2675 by the warden, the court shall appoint the public defender or other attorney to represent the person unless the person is financially able to provide his or her own attorney. The attorney shall advise the person of his or her rights in relation to the proceeding in question and shall represent him or her before the court. The court shall also appoint an independent medical expert on the person's behalf to examine the person's medical, mental, or emotional condition and to testify thereon, unless the person is financially able to obtain the expert testimony. However, if the person has given his or her informed consent to the proposed organic therapy, other than psychosurgery as referred to in subdivision (c) of Section 2670.5, and his or her attorney concurs in the proposed administration of the organic therapy, the court may waive the requirement that an independent medical expert be appointed.

The court shall conduct the proceedings within 10 judicial days from the filing of the petition described in Section 2675 or 2676, whichever is filed earlier, unless the warden's attorney or the person's attorney requests a continuance, which may be for a maximum of 10 additional judicial days. The court shall conduct the proceedings in accordance with constitutional guarantees of due process of law and the procedures under Section 13 of Article I of the California Constitution.

(a) The court shall determine whether the state has proven, by clear and convincing evidence, that the confined person has the capacity for informed consent and has manifested his informed consent.
  (b) If the court has determined that the person lacks the capacity for informed consent, the court shall determine by clear and convincing evidence that such therapy, other than psychosurgery as referred to in subdivision (c) of Section 2670.5, would be beneficial; that there is a compelling interest justifying the use of the organic therapy upon the person; that there are no less onerous alternatives to such organic therapy; and that such organic therapy is in accordance with sound medical-psychiatric practice. If the court so determines, then the court shall authorize the administration of the organic therapy for a period not to exceed six months.
  (c) If the court has determined that the person has the capacity for informed consent and has manifested his informed consent to organic therapy, the court shall determine by clear and convincing evidence that such therapy would be beneficial; that there is a compelling interest justifying the use of the organic therapy upon the person; that there are no less onerous alternatives to such organic therapy; and that such organic therapy is in accordance with sound medical-psychiatric practice. If the court so determines then the court shall authorize the administration of the organic therapy for a period not to exceed six months.

(a) If it is determined by the attending physician that a confined person should be administered organic therapy, the person shall be advised and informed of his or her rights under this article, and he or she shall be provided a copy of this article.
  (b) This article shall apply to prisoners confined under this part in public or private hospitals, sanitariums, and similar facilities, and to the personnel of the facilities.
  (c) A person shall be entitled to communicate in writing and by visiting with his or her parents, guardian, or conservator regarding any proposed administration of any organic therapy. The communication shall not be censored. The person shall be entitled to communicate in writing with his or her attorney pursuant to Section 2600.
  (d) This article shall not prohibit the attending physician from terminating organic therapy prior to the period authorized for that therapy by the court, pursuant to Section 2679.