(a) For purposes of an opinion offered by an expert witness in a proceeding relating to the appointment or reappointment of a conservator pursuant to Chapter 3 (commencing with Section 5350) or Chapter 5 (commencing with Section 5450), the statement of a health practitioner, as defined in subdivision (d), included in the medical record is not made inadmissible by the hearsay rule when the statement pertains to the person’s symptoms or behavior stemming from a mental health disorder or severe substance use disorder that the expert relies upon to explain the basis for their opinion, if the statement is based on the observation of the declarant, and the court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide sufficient indicia of reliability.

(b) This section does not affect the ability of a party to call as a witness the declarant of any statement contained in the medical record, whether or not the declarant’s statement was relied on by the expert witness.

Terms Used In California Welfare and Institutions Code 5122

  • Continuance: Putting off of a hearing ot trial until a later time.
  • custody: means the legal right to custody of the child unless that right is held jointly by two or more persons, in which case "custody" means the physical custody of the child by one of the persons sharing the right to custody. See California Welfare and Institutions Code 17.1
  • Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
  • Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
  • Hearsay: Statements by a witness who did not see or hear the incident in question but heard about it from someone else. Hearsay is usually not admissible as evidence in court.

(c) The court may grant a reasonable continuance if an expert witness in a proceeding relied on the medical record and the medical record has not been provided to the parties or their counsel.

(d) (1) “Health practitioner” means a physician and surgeon, psychiatrist, psychologist, resident, intern, registered nurse, licensed clinical social worker or associate clinical social worker, licensed marriage and family therapist or associate marriage and family therapist, licensed professional clinical counselor or associate professional clinical counselor, any emergency medical technician I or II, paramedic, or person certified pursuant to Division 2.5 (commencing with Section 1797) of the Health and Safety Code, and a psychological associate registered pursuant to § 2913 of the Business and Professions Code.

(2) “Medical record” means any record, in any form or medium, maintained or lawfully obtained by, or in the custody or control of, the office of the public conservator or public guardian that is prepared by a health practitioner and relates to the health history, diagnosis, or condition of a patient, or relating to treatment provided or proposed to be provided to the patient who is subject to a conservatorship pursuant to Chapter 3 (commencing with Section 5350). Medical record includes records of care in any health-related setting used by health care professionals while providing patient care services, for reviewing patient data or documenting observations, actions, or instructions, including records that are considered part of the active, overflow, and discharge chart. Medical record also includes, but is not limited to, all alcohol and substance use and treatment records.

(e) Nothing in this section affects the application of § 1201 of the Evidence Code.

(Added by Stats. 2023, Ch. 637, Sec. 3. (SB 43) Effective January 1, 2024.)

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