4146. (Added by Stats. 2016, Ch. 715, Sec. 4.)

(a) This section applies in cases in which a patient has been committed to the department as a mentally disordered offender, including a person found not guilty by reason of insanity, or a person found incompetent to stand trial or be adjudged to punishment.

(b) (1) A physician employed by the department who determines that a patient meets the criteria set forth in subparagraph (A) or (C) of paragraph (5) shall notify the medical director and the patient advocate of the prognosis. If the medical director concurs with the diagnosis, he or she shall immediately notify the Director of State Hospitals. Within 72 hours of receiving notification, the medical director or the medical director’s designee shall notify the patient of the discharge procedures under this section and obtain the patient’s consent for discharge. The medical director or the medical director’s designee shall arrange for the patient to designate a family member or other outside agent to be notified as to the patient’s medical condition, prognosis, and release procedures under this section. If the patient is unable to designate a family member or other outside agent, the medical director or the medical director’s designee shall contact any emergency contact listed, or the patient advocate if no contact is listed.

(2) The medical director or the medical director’s designee shall provide the patient and his or her family member, agent, emergency contact, or patient advocate with updated information throughout the release process with regard to the patient’s medical condition and the status of the patient’s release proceedings, including the discharge plan. A patient shall not be released unless the discharge plan verifies placement for the patient upon release.

(3) The patient or his or her family member or designee may contact the medical director or the executive director at the state hospital where the patient is located or the Director of State Hospitals to request consideration for a recommendation from the medical director or the medical director’s designee to the court that the patient’s commitment be suspended for compassionate release and the patient released from the department facility.

(4) Upon receipt of a notification or request pursuant to paragraph (1) or (3), respectively, the Director of State Hospitals may recommend to the court that the patient’s commitment be suspended for compassionate release and the patient released from the department facility.

(5) The court has the discretion to suspend the commitment for compassionate release and release the patient if the court finds that the facts described in subparagraphs (A) and (B) or subparagraphs (B) and (C) exist:

(A) The patient is terminally ill with an incurable condition caused by an illness or disease that would likely produce death within six months, as determined by a physician employed by the department.

(B) The conditions under which the patient would be released or receive treatment do not pose a threat to public safety.

(C) The patient is permanently medically incapacitated with a medical condition that renders him or her permanently unable to perform activities of basic daily living and results in the patient requiring 24-hour total care, including, but not limited to, coma, persistent vegetative state, brain death, ventilator-dependency, or loss of control of muscular or neurological function, the incapacitation did not exist at the time of the original commitment, and the medical director responsible for the patient’s care and the Director of State Hospitals both certify that the patient is incapable of receiving mental health treatment.

(c) Within 10 days of receipt of a recommendation for release by the director, the court shall hold a noticed hearing to consider whether the patient’s commitment should be suspended and the patient released.

(d) A recommendation for compassionate release submitted to the court shall include at least one medical evaluation, a discharge plan, a postrelease plan for the relocation and treatment of the patient, and the physician’s and medical director’s determination that the patient meets the criteria set forth in subparagraph (A) or (C) of paragraph (5) of subdivision (b). The court shall order the medical director to send copies of all medical records reviewed in developing the recommendation to all of the following parties:

(1) The district attorney of the county from which the patient was committed.

(2) If the patient is a mentally disordered offender on parole, the district attorney of the county from which the patient was committed to the state prison.

(3) The public defender of the county from which the patient was committed, or the patient’s private attorney, if one is available.

(4) If the patient is a mentally disordered offender on parole, the public defender of the county from which the patient was committed to the state prison, if one is available, or the patient’s private attorney, if applicable.

(5) If the patient is a mentally disordered offender on parole, the Board of Parole Hearings.

(6) If the patient is on mandatory supervision or postrelease community supervision and has been found incompetent to be adjudged to punishment, the county entity designated to supervise him or her.

(e) (1) The matter shall be heard before the same judge that originally committed the patient, if possible.

(2) If the patient is a mentally disordered offender on parole and was committed for treatment by the Board of Parole Hearings, the matter shall be heard by the court that committed the patient to the state prison for the underlying conviction, if possible.

(g) The executive director of the state hospital or his or her designee shall ensure that upon release, the patient has each of the following in his or her possession, or the possession of the patient’s representative:

(1) A discharge plan.

(2) A discharge medical summary.

(3) Medical records.

(4) Identification.

(5) All necessary medications.

(6) Any property belonging to the patient.

(h) After discharge, any additional records shall be sent to the patient’s forwarding address.

(i) The Director of State Hospitals may adopt regulations to implement this section. The adoption of regulations for the implementation of this section by the department is exempt from the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code).

(j) For the purposes of this section, a patient whose commitment has been suspended for compassionate release shall not be considered to be under the custody of, or the responsibility of, the State Department of State Hospitals.

(k) If a patient’s commitment order is suspended pursuant to this section, it may be reinstated by the court pursuant to a finding by the State Department of State Hospitals that the patient’s condition has changed such that he or she poses a threat to public safety, or no longer meets the criteria for compassionate release described in subparagraph (A) or (C) of paragraph (5) of subdivision (b).

(l) The State Department of State Hospitals, in consultation with relevant stakeholders, including, but not limited to, local law enforcement and correctional officials, shall promulgate regulations in accordance with subdivision (i) to establish a process for petitioning the court for reinstatement of a suspended commitment order, pursuant to subdivision (k).