2009 California Penal Code - Section 2670-2680 :: Article 2. Organic Therapy

PENAL CODE
SECTION 2670-2680

2670.  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.

2670.5.  (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.

2671.  (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.

2672.  (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 as a mentally ill,
disordered, abnormal or mentally defective person.
   (c) A person confined shall be deemed incapable of informed
consent if such 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 cannot manifest his consent to the
attending physician.

2673.  (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.

2674.  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.

2675.  (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.

2676.  (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.

2677.  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.

2678.  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.

2679.  (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.

2680.  (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.

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