Report 2013-120 Recommendation 5 Responses

Report 2013-120: Sterilization of Female Inmates: Some Inmates Were Sterilized Unlawfully, and Safeguards Designed to Limit Occurrences of the Procedure Failed (Release Date: June 2014)

Recommendation #5 To: Correctional Health Care Services, California

To ensure that it can better monitor how its medical staff and contractors adhere to the informed consent requirements of Title 22, sections 70707.1 through 70707.7, the Receiver's Office should develop a plan by August 2014 to implement a process by December 2014 that would include working with Corrections to establish a process whereby inmates can have witnesses of their choice when consenting to sterilization, as required by Title 22, or working to revise such requirements so that there is an appropriate balance between the need for secure custody and the inmate's ability to have a witness of her choice.

Annual Follow-Up Agency Response From November 2019

CSA's position is that it is the Receiver's Office responsibility to ensure that informed consent requirements are followed, even though CCHCS does not perform the sterilization procedures. Part of the informed consent process requires that a patient must be given an opportunity to have a witness of choice. CSA stated in their report that a lack of physician signatures on informed consent forms and waiting period violations were compounded because inmates had little or no opportunity to have a witness of their choice present when they signed the sterilization consent form while in prison. It is CCHCS' position that specific provision of Title 22 do not apply to prison employees because Title 22 applies to general acute care hospitals. Specialty services, such as sterilization procedures, are performed by outside surgeons and informed consent is obtained consistent with that surgeon's hospital processes. Although it is not feasible for inmates to have a witness of choice in a correctional setting due to safety and security concerns, CCHCS has implemented a reauthorization process through its electronic health records system that requires headquarters approval for procedures that could result in fertility loss. This process, in part, helps ensure that informed consent forms have required signatures, waiting period requirements are met, and the procedure is clinically necessary. This preauthorization process helps address, in part, CSA's concerns (see Recommendation 11). CCHCS Status "Resolved" as of 10/31/19.

Completion Date: October 2019

California State Auditor's Assessment of Annual Follow-Up Status: Will Not Implement

Title 22 is very clear in stating that an individual has given informed consent to sterilization "only if" certain requirements are met. One of these requirements is being permitted to have a witness of the patient's choice present when consent is obtained. Having the patient's choice of a witness present serves as a safeguard to help ensure that the patient understands the procedure and truly desires to be permanently sterilized. A witness also helps protect the State from allegations that the inmate was coerced into her decision to be sterilized. Since 2014 the Receiver's Office has expressed that it will not implement this recommendation. However, it has offered no information to suggest that it has arranged for female inmates to have a witness of their choice either in the correctional facility or at the hospital, depending on where consent is obtained. The Receiver's Office has also not specified that it is working to revise the Title 22 requirements for witnesses in a correctional setting. Further, the Receiver's Office's response that it has changed its internal administrative process does not ensure inmates can have witnesses of their choice when consenting to sterilization, as required by Title 22. Accordingly, we stand by our recommendation and conclude that the Receiver's Office will not implement it.

Auditee did not substantiate its claim of full implementation

Annual Follow-Up Agency Response From November 2018

The response remains "will not implement."

Estimated Completion Date:

California State Auditor's Assessment of Annual Follow-Up Status: Will Not Implement

1-Year Agency Response

The California Department of Corrections and Rehabilitation and California Correctional Health Care Services have concluded that compliance within a correctional setting is not feasible.

Estimated Completion Date:
Response Date: June 2015

California State Auditor's Assessment of 1-Year Status: Will Not Implement

6-Month Agency Response

CDCR and CCHCS will continue to explore the extent to which partial compliance may be feasible and under what circumstances.

Estimated Completion Date:
Response Date: December 2014

California State Auditor's Assessment of 6-Month Status: Will Not Implement

Under Title 22, the provision of a witness is required for lawful consent for procedures where the purpose of sterilization is to render the patient incapable of reproduction.

60-Day Agency Response

Proposed Action Plan:

Discussion regarding this recommendation with CDCR is ongoing.

Status/Comments:

A meeting with CDCR was held on July 22, 2014 to discuss with establishment of the process. CDCR and CCHCS have discussed the interplay of the statutory requirements and the difficulties in full compliance in a correctional setting. We will continue to explore the extent to which partial compliance may be feasible and under what circumstances.

Estimated Completion Date: To be determined
Response Date: August 2014

California State Auditor's Assessment of 60-Day Status: Pending

All Recommendations in 2013-120

Agency responses received are posted verbatim.