Special disabilities and due process- Conservatorship of K.G and Donna H.
Super. Ct. No. CIV-1100825
3/8/12
In the matter of the conservatorship of K.G., the conservatees contend that the trial court abused its discretion by imposed special disabilities pursuant to Welfare and Inst Code §5357 without examining the merits of its decision based on the evidence proffered. K.G. during the proceedings filed an amicus curiae brief through their counsel. Upon appellate review, the court finds that appellant was correct in their assertion and granted appellant’s writ of mandate reversing the order establishing conservatorship of K.G.’s person. This case is another example of the public conservator rubber stamping its decision without examining the basis for the claim.
The conservatees contend on two grounds that the trial court had abused its discretion by accepting petitioner’s request for summary imposition of special disabilities. The trial court found that appellant’s issue to be moot. Court of appeals disagrees and provides the following reasoning.
The conservatees contend that the public conservator has a “customary practice” of seeking and obtaining conservatorship orders imposing such a legal disability” in re Cons of Walker and therefore violating § 5325 which mandates that LPS detainees are privileged to the same responsibilities and rights as other persons under California constitution and federal provisions. In that same vein the conservatees argue that the LPS act mandates that civilly committed persons are not to be presumed incompetent just because of their detention in a hospital.
The LPS Act “scrupulously protects the rights of involuntarily detained mentally disordered persons. [Citations.]” (Keyhea v. Rushen (1986) 178 Cal.App.3d 526, 534 (Keyhea).)
The LPS Act specifically authorizes the court to designate certain “disabilities” to
which a conservatees may be subject, including decisional disabilities relating to medical
treatment. (§ 5357.)
The conservatees contend that the trial court was responsible for providing him with an opportunity to be heard regarding special disabilities and that by summarily accepting the petitioner’s request for imposition of special disabilities, the court made an error.
The conservatees point out that in reference to the conservatorship of Keyhea (1986), that court found that the legislative intent § 5357(d) and 5358(b) implied that a conservatee maintain the right to consent to treatment relating or unrelating to their grave disability unless a judicial determination has been entered stating that the conservatees lack the capacity to decide whether to refuse or consent to such treatment. Based on these prior findings, the conservatees argue that the public conservator should not ask for such disabilities without meeting its burden of proof for showing cause.
The public conservator addresses that the conflict surrounding this case is the matter of the fact that the state has a countervailing parens patrie duty with preserving the conservatees’s autonomy. However, upon closer examination, the court contends that parens patrie is the state’s responsibility after the conservatees have been adjudicated gravely disabled and orders for involuntary treatment have been written. The state does not carry such responsibility before such proceedings have occurred.
Nevertheless, “parens patrie may be used only to impose unwanted medical treatment on an adult when that adult has been adjudged incompetent. [Citation.]” (Qawi, at pp. 15–16.)
The Supreme Court confirmed that Keyhea and Riese correctly interpreted the LPS Act. (Id. at pp. 16–19.)
Writ of mandamus and request for declaratory relief
The conservatees assert five causes of action. The first cause of action was the deprivation of rights under the LPS act. The second and third was that the conservatees’s right to privacy under the California Constitution was violated. The fourth was that the public conservator violated their right to equal protection of the laws under the California Constitution. Finally the conservatees contends that they were denied a “right to an evidentiary capacity adjudication [under] the LPS Act and Equal Protection clause of the California Constitution”. In order to meet their burden of proof, appellant refers to the Public Guardian’s practices.
The relief the conservatees seek is (1) a declarative relief stating that “absent an emergency as defined in Section 5008[, subdivision] (m), LPS temporary and full one year conservateesare entitled to consent to or refuse the administration of antipsychotic medications and/or routine medical treatment unless there has been a judicial adjudication, with representation, specifically determining their incapacity to make decisions regarding such administration”; and (2) a peremptory writ of mandate ordering that absent a court order or an emergency pursuant to § 5008 (m), LPS conservateesmay not be medicated without their consent. If such were to happen, an order to show cause must be issued and an evidentiary hearing set. Finally, the conservatees (3) ask that attorney fees be awarded pursuant to Code of Civil Procedure § 1021.5.
On the issue of mootness
The public conservator entered a response to the request for writ of mandate and declaratory relief arguing that the petition was moot because the temporary conservatorship for K.G. and the one-year conservatorship for Donna H. at the time the petition was filed had expired. The public conservator also contends that the relief the conservatees sought was inappropriate because
Petitioners did not object to or appeal the orders they now contend were improperly imposed, they did not seek performance of a ministerial duty, they had a plain, speedy and adequate remedy at law, and there was no legal basis for the relief they sought.
The public conservator argued that the conservateeswere seeking relief based on a description of the public conservator’s practices rather than a specific error. The trial court affirmed the public conservator citing that
“[K.G.]‟s conservatorship was dismissed on 2/16/11. Therefore the relief requested by the within writ is moot. . . . [¶] Similarly, the temporary orders issued in the Donna H. matter have now been replaced with new orders, issued on 3/24/11.
The appellate court disagrees entering this judgement. The trial court begins by stating that the appellate court scope of judgement is limited to determining whether the trial court appropriately weighed and applied the substantial evidence test when making its determination. However, when there is a matter of legal basis and the facts are undisputed, the appellate court may make its own determination. In re. (Morris v. Harper (2001) 94 Cal.App.4th 52, 58–59 (Morris).) The same applies for a request for declaratory relief.
The appellate court found that these issues were not moot even if the conservatorships petition was moot. The appellate court brings up the findings with conservatorship of Carol K (2010) which stated that if the core issues were of such nature that they may be re-litigated in the future because of a re-occurring conflict but may escape review the appellate court may find them not moot.
An appeal is not moot if it raises issues that are capable of repetition yet avoiding review. (Conservatorship of Carol K. (2010) 188 Cal.App.4th 123, 133; see also In re Lemanuel C. (2007) 41 Cal.4th 33, 38, fn. 4) [commitment order had expired]
This standard applies on two grounds; the conservatees were subject to conservatorship renewal yearly and the public conservator may issue orders in the future with other conservatees. Because of the time it takes for appellate review and the repetitive nature of conservatorship establishment, the appellate court finds that these issues may become escape review in the future again. Finally, the court held that since civil commitment is an issue of public interest and concern, review is important.
The public conservator contends that the appellant’s request for declaratory relief is the wrong kind relief. It asserts that declaratory relief is an inappropriate form of relief as it does not focus on one or more specific facts. Rather, it asserts that the appellants are contesting on the grounds of general concepts.
An action for declaratory relief is an appropriate means of challenging an alleged “overarching” policy or practice of an agency where there is an actual and present controversy over the policy. (Californians for Native Salmon etc. Assn. v. Department of Forestry (1990)
The appellate court found that a request for declaratory action was indeed an appropriate relief as it “would avoid a multiplicity of actions, i.e., a large number of mandate proceedings challenging specific [administrative] approvals all raising identical or nearly identical questions concerning [the agency‟s] policies. . . .”
The next issues the appellate court discusses are the merits of presentation of issues for review. In the petition the appellants seek judicial adjudication before special disabilities are applied. The court found that the petition submitted by the public conservator lacked several key components. Inadequate notice, lack of representation, insufficient allegations in conservatorship petitions, failure to obtain a conservatorship investigation report before seeking disabilities, and inadequate findings in proposed court orders. Similarly, on appeal, Petitioners invoke the requirements of notice, allegations, proof and a court finding as elements of an adjudication of decisional incapacity. However, Petitioners do not separately analyze the legal issues underlying each of these requirements as applied to LPS conservatorship proceedings.
However, the body of the petition focuses on the legal basis and argument over Welf and Inst Code § 5357(d) requiring judicial finding of incapacity before disabilities are imposed and the illegality of ex parte proceedings to impose said disabilities during temporary conservatorship proceedings. The court found that these two issues were properly supported by legal argument.
Both parties agree that the court must enter a judgement about decisional incapacity before imposition of special disabilities, but they differ on how that finding must be reflected in the record. The petitioners state that a finding backed by evidence that meets the standard of review should be mandatory to impose disabilities. They cite that the Public Guardian’s report failed to include such findings and that in their specific cases the trial court approved the orders without such findings. The Public conservator stated during oral arguments that the revised proposed order form now included the phrase “for good cause shown” and therefore sufficed.
The Public Guardian correctly notes that there is no clear statutory requirement that the court make an express finding of decisional incapacity before imposing the medical treatment disabilities. (See Conservatorship of George H. (2008) 169 Cal.App.4th 157, 165–166; However, the record must disclose that the trial court was aware of the finding it was required to make before imposing the disabilities, that it considered the evidence proffered on the issue, and that it in fact made the finding.
The Supreme Court clarified the incapacity standard to be specifically a determination that the gravely disabled person is “incapable of making rational decisions about his [or her] own medical treatment” (id. at p. 20). To add on the court quoted Keyhea (2010) “the conservatees lacks the mental capacity to rationally understand the nature of the medical problem, the proposed treatment and the attendant risks.”
The court continues to clarify that to meet the incapacity standard, the conservatees must either demonstrate or fail to meet the following:
“(a) whether the patient 16 is aware of his or her situation (e.g., if the court is satisfied of the existence of psychosis, does the individual acknowledge that condition); (b) whether the patient is able to understand the benefits and the risks of, as well as the alternatives to, the proposed intervention . . . ; and (c) whether the patient is able to understand and to knowingly and intelligently evaluate the information required to be given patients whose informed consent is sought [citation] and otherwise participate in the treatment decision by means of rational thought processes.” (Qawi, at p. 18, citing Riese, supra, 209 Cal.App.3d at pp. 1322–1323.)
To effectuate meaningful review, the trial court must demonstrate that it has formally received and reviewed the evidence in the file that demonstrates the Riese factors. This would entail meeting the standard of proof which means proffer explicit evidence that extends beyond the public conservator’s proposed petition containing boiler plate language. The evidence must also be relevant and meaningful to the case. It must not contain evidence whose risk of prejudice outweighs its probative value.
The appellate court grants declarative relief to the petitioners but remands the issue of writ of mandamus to the trial court. It chooses to do so for two reasons; to determine if the public conservator will comply with the law and “The trial court is in the best position to determine in the first instance whether mandamus relief is appropriate.”
The next issue is over whether notice and an opportunity to be heard in temporary conservatorships petitioners are legally cognizable issues in this case. Since the petitioners did not proffer any substantial evidence or identify specific procedures the public conservators should have followed, the appellate court limited its review to the issue of whether current procedure satisfies current requirements. The court’s review shall be general.
In determining whether the public conservator failed to satisfy due process requirements, the court turns to the legislature which defines the purpose of due process as
“The purpose of notice under the Due Process Clause is to apprise the affected individual of, and permit adequate preparation for, an impending “hearing.”
The conservatees contend that the public conservator routinely establishes temporary conservatorships and special powers over the conservatees without due process. The conservatees will be notified after the proceedings have occurred and the order has been effectuated.
but without service on the proposed conservatees of a petition alleging decisional incapacity, without service of declarations offering evidence in support of a finding on this issue, without legal representation, without a hearing, and without an affirmative indication of the proposed conservatees’s consent to imposition of the disabilities
Only after the orders have been written do temporary conservatees receive formal notice of hearing, appointment of counsel, and paperwork detailing the appointment and powers of the conservator. To add the petitioners contend that the public conservator’s revised paperwork shows no intent of addressing these deficiencies. The appellate court believed that the public conservator did not meet its requirement for imposition of special disabilities due to the following errors in serving “due process”. The public conservator omitted the following: contact information for counsel and ensuring representation was provided, time, place, date, and notice that temporary conservator and special disabilities will be imposed if no objection is entered.
contact information for the public defender‟s and patient‟s advocate‟s office, but did not ensure representation. The notices in the record do not set forth a date, time and place for a hearing on the petition or, in the alternative, a date the temporary conservator will be appointed if no objection is interposed. The revised notice form submitted by the Public Guardian is not materially different.
Despite the fact that LPS conservatorship hearings are dealing with incapacitated individuals, the appellate court regards these matters in the same way it would with informed consent matters for competent individuals.
The public conservator contends that the petitioners are incorrect and that §5357(d) allows special disability be imposed if the proposed conservatees is given five-days notice of such disabilities might be imposed, has access to legal assistance, and does not affirmatively object. The public conservator relied on case law and statutory laws to back their oral argument but available evidence does not show such. The court disagreed citing that it was still a violation of the due process clause. The court again reminds all that psychotropic medication administered against some one’s will is a violation of their civil liberties and privacy and should not be addressed without proper consideration of the facts and evidence. All persons are entitled to due process protection when facing such deprivations. Consent must be in person or through appointed counsel. Without such consent, violation has occurred despite current practices. The court adds that counsel cannot consent unless the conservatees has given them their consent.
The public conservator attempts to invoke § 5357(d) which mandates that
“disability may be inferred from the proposed conservatees’s failure to affirmatively object to a notice that the disability might be imposed, even though the conservatees is gravely disabled according to the Public Guardian’s moving papers, is unrepresented by counsel or a trained patient’s advocate (although he or she has been provided contact information for those persons), and has not been informed about the limits of the court‟s power to impose the disability (i.e., the decisional incapacity legal standard).”
The public conservator also cited Probate Code § 2250.2
“Unless the court for good cause otherwise orders, not less than five days before the appointment of the temporary conservator, notice of the proposed appointment shall be personally delivered to the proposed conservatees.”
This section of the legislature deals with the general appointment of a temporary conservator. The issues in this case deal with the special powers of the LPS conservator. The appellate court agrees with the public conservator but notes that even
due process requirements apply regardless of whether they have been codified by the Legislature and a practice that technically complies with a statute does not necessarily comport with due process.
The law cannot be partially correct. The public conservator contends that providing greater due process requirements for LPS temporary conservateeswas not the intent of the legislature and these differences in the code were proof. The court disagrees ending stating that it
See[s] no rational basis for distinguishing involuntary antipsychotic medication pursuant to section 5357(d) during a temporary conservatorship, which may last from 30 to 180 days, from involuntary antipsychotic medication during a period of involuntary LPS detention, which may last from 72 hours to 30 days or more. (See Riese, supra, 209 Cal.App.3d at p. 1320
For the reasons stated supra, the appellate court found that the public conservator had violated due process with its current practice of imposing a section 5357(d) disability. The trial court remands the issue of writ of mandamus to the trial court.
On remand, the court shall vacate the order, grant declaratory relief, and conduct further proceedings on the petition for a writ of mandate consistent with the views expressed in this opinion. Petitioners are entitled to recover their costs on appeal.
Super. Ct. No. CIV-1100825
3/8/12
In the matter of the conservatorship of K.G., the conservatees contend that the trial court abused its discretion by imposed special disabilities pursuant to Welfare and Inst Code §5357 without examining the merits of its decision based on the evidence proffered. K.G. during the proceedings filed an amicus curiae brief through their counsel. Upon appellate review, the court finds that appellant was correct in their assertion and granted appellant’s writ of mandate reversing the order establishing conservatorship of K.G.’s person. This case is another example of the public conservator rubber stamping its decision without examining the basis for the claim.
The conservatees contend on two grounds that the trial court had abused its discretion by accepting petitioner’s request for summary imposition of special disabilities. The trial court found that appellant’s issue to be moot. Court of appeals disagrees and provides the following reasoning.
The conservatees contend that the public conservator has a “customary practice” of seeking and obtaining conservatorship orders imposing such a legal disability” in re Cons of Walker and therefore violating § 5325 which mandates that LPS detainees are privileged to the same responsibilities and rights as other persons under California constitution and federal provisions. In that same vein the conservatees argue that the LPS act mandates that civilly committed persons are not to be presumed incompetent just because of their detention in a hospital.
The LPS Act “scrupulously protects the rights of involuntarily detained mentally disordered persons. [Citations.]” (Keyhea v. Rushen (1986) 178 Cal.App.3d 526, 534 (Keyhea).)
The LPS Act specifically authorizes the court to designate certain “disabilities” to
which a conservatees may be subject, including decisional disabilities relating to medical
treatment. (§ 5357.)
The conservatees contend that the trial court was responsible for providing him with an opportunity to be heard regarding special disabilities and that by summarily accepting the petitioner’s request for imposition of special disabilities, the court made an error.
The conservatees point out that in reference to the conservatorship of Keyhea (1986), that court found that the legislative intent § 5357(d) and 5358(b) implied that a conservatee maintain the right to consent to treatment relating or unrelating to their grave disability unless a judicial determination has been entered stating that the conservatees lack the capacity to decide whether to refuse or consent to such treatment. Based on these prior findings, the conservatees argue that the public conservator should not ask for such disabilities without meeting its burden of proof for showing cause.
The public conservator addresses that the conflict surrounding this case is the matter of the fact that the state has a countervailing parens patrie duty with preserving the conservatees’s autonomy. However, upon closer examination, the court contends that parens patrie is the state’s responsibility after the conservatees have been adjudicated gravely disabled and orders for involuntary treatment have been written. The state does not carry such responsibility before such proceedings have occurred.
Nevertheless, “parens patrie may be used only to impose unwanted medical treatment on an adult when that adult has been adjudged incompetent. [Citation.]” (Qawi, at pp. 15–16.)
The Supreme Court confirmed that Keyhea and Riese correctly interpreted the LPS Act. (Id. at pp. 16–19.)
Writ of mandamus and request for declaratory relief
The conservatees assert five causes of action. The first cause of action was the deprivation of rights under the LPS act. The second and third was that the conservatees’s right to privacy under the California Constitution was violated. The fourth was that the public conservator violated their right to equal protection of the laws under the California Constitution. Finally the conservatees contends that they were denied a “right to an evidentiary capacity adjudication [under] the LPS Act and Equal Protection clause of the California Constitution”. In order to meet their burden of proof, appellant refers to the Public Guardian’s practices.
The relief the conservatees seek is (1) a declarative relief stating that “absent an emergency as defined in Section 5008[, subdivision] (m), LPS temporary and full one year conservateesare entitled to consent to or refuse the administration of antipsychotic medications and/or routine medical treatment unless there has been a judicial adjudication, with representation, specifically determining their incapacity to make decisions regarding such administration”; and (2) a peremptory writ of mandate ordering that absent a court order or an emergency pursuant to § 5008 (m), LPS conservateesmay not be medicated without their consent. If such were to happen, an order to show cause must be issued and an evidentiary hearing set. Finally, the conservatees (3) ask that attorney fees be awarded pursuant to Code of Civil Procedure § 1021.5.
On the issue of mootness
The public conservator entered a response to the request for writ of mandate and declaratory relief arguing that the petition was moot because the temporary conservatorship for K.G. and the one-year conservatorship for Donna H. at the time the petition was filed had expired. The public conservator also contends that the relief the conservatees sought was inappropriate because
Petitioners did not object to or appeal the orders they now contend were improperly imposed, they did not seek performance of a ministerial duty, they had a plain, speedy and adequate remedy at law, and there was no legal basis for the relief they sought.
The public conservator argued that the conservateeswere seeking relief based on a description of the public conservator’s practices rather than a specific error. The trial court affirmed the public conservator citing that
“[K.G.]‟s conservatorship was dismissed on 2/16/11. Therefore the relief requested by the within writ is moot. . . . [¶] Similarly, the temporary orders issued in the Donna H. matter have now been replaced with new orders, issued on 3/24/11.
The appellate court disagrees entering this judgement. The trial court begins by stating that the appellate court scope of judgement is limited to determining whether the trial court appropriately weighed and applied the substantial evidence test when making its determination. However, when there is a matter of legal basis and the facts are undisputed, the appellate court may make its own determination. In re. (Morris v. Harper (2001) 94 Cal.App.4th 52, 58–59 (Morris).) The same applies for a request for declaratory relief.
The appellate court found that these issues were not moot even if the conservatorships petition was moot. The appellate court brings up the findings with conservatorship of Carol K (2010) which stated that if the core issues were of such nature that they may be re-litigated in the future because of a re-occurring conflict but may escape review the appellate court may find them not moot.
An appeal is not moot if it raises issues that are capable of repetition yet avoiding review. (Conservatorship of Carol K. (2010) 188 Cal.App.4th 123, 133; see also In re Lemanuel C. (2007) 41 Cal.4th 33, 38, fn. 4) [commitment order had expired]
This standard applies on two grounds; the conservatees were subject to conservatorship renewal yearly and the public conservator may issue orders in the future with other conservatees. Because of the time it takes for appellate review and the repetitive nature of conservatorship establishment, the appellate court finds that these issues may become escape review in the future again. Finally, the court held that since civil commitment is an issue of public interest and concern, review is important.
The public conservator contends that the appellant’s request for declaratory relief is the wrong kind relief. It asserts that declaratory relief is an inappropriate form of relief as it does not focus on one or more specific facts. Rather, it asserts that the appellants are contesting on the grounds of general concepts.
An action for declaratory relief is an appropriate means of challenging an alleged “overarching” policy or practice of an agency where there is an actual and present controversy over the policy. (Californians for Native Salmon etc. Assn. v. Department of Forestry (1990)
The appellate court found that a request for declaratory action was indeed an appropriate relief as it “would avoid a multiplicity of actions, i.e., a large number of mandate proceedings challenging specific [administrative] approvals all raising identical or nearly identical questions concerning [the agency‟s] policies. . . .”
The next issues the appellate court discusses are the merits of presentation of issues for review. In the petition the appellants seek judicial adjudication before special disabilities are applied. The court found that the petition submitted by the public conservator lacked several key components. Inadequate notice, lack of representation, insufficient allegations in conservatorship petitions, failure to obtain a conservatorship investigation report before seeking disabilities, and inadequate findings in proposed court orders. Similarly, on appeal, Petitioners invoke the requirements of notice, allegations, proof and a court finding as elements of an adjudication of decisional incapacity. However, Petitioners do not separately analyze the legal issues underlying each of these requirements as applied to LPS conservatorship proceedings.
However, the body of the petition focuses on the legal basis and argument over Welf and Inst Code § 5357(d) requiring judicial finding of incapacity before disabilities are imposed and the illegality of ex parte proceedings to impose said disabilities during temporary conservatorship proceedings. The court found that these two issues were properly supported by legal argument.
Both parties agree that the court must enter a judgement about decisional incapacity before imposition of special disabilities, but they differ on how that finding must be reflected in the record. The petitioners state that a finding backed by evidence that meets the standard of review should be mandatory to impose disabilities. They cite that the Public Guardian’s report failed to include such findings and that in their specific cases the trial court approved the orders without such findings. The Public conservator stated during oral arguments that the revised proposed order form now included the phrase “for good cause shown” and therefore sufficed.
The Public Guardian correctly notes that there is no clear statutory requirement that the court make an express finding of decisional incapacity before imposing the medical treatment disabilities. (See Conservatorship of George H. (2008) 169 Cal.App.4th 157, 165–166; However, the record must disclose that the trial court was aware of the finding it was required to make before imposing the disabilities, that it considered the evidence proffered on the issue, and that it in fact made the finding.
The Supreme Court clarified the incapacity standard to be specifically a determination that the gravely disabled person is “incapable of making rational decisions about his [or her] own medical treatment” (id. at p. 20). To add on the court quoted Keyhea (2010) “the conservatees lacks the mental capacity to rationally understand the nature of the medical problem, the proposed treatment and the attendant risks.”
The court continues to clarify that to meet the incapacity standard, the conservatees must either demonstrate or fail to meet the following:
“(a) whether the patient 16 is aware of his or her situation (e.g., if the court is satisfied of the existence of psychosis, does the individual acknowledge that condition); (b) whether the patient is able to understand the benefits and the risks of, as well as the alternatives to, the proposed intervention . . . ; and (c) whether the patient is able to understand and to knowingly and intelligently evaluate the information required to be given patients whose informed consent is sought [citation] and otherwise participate in the treatment decision by means of rational thought processes.” (Qawi, at p. 18, citing Riese, supra, 209 Cal.App.3d at pp. 1322–1323.)
To effectuate meaningful review, the trial court must demonstrate that it has formally received and reviewed the evidence in the file that demonstrates the Riese factors. This would entail meeting the standard of proof which means proffer explicit evidence that extends beyond the public conservator’s proposed petition containing boiler plate language. The evidence must also be relevant and meaningful to the case. It must not contain evidence whose risk of prejudice outweighs its probative value.
The appellate court grants declarative relief to the petitioners but remands the issue of writ of mandamus to the trial court. It chooses to do so for two reasons; to determine if the public conservator will comply with the law and “The trial court is in the best position to determine in the first instance whether mandamus relief is appropriate.”
The next issue is over whether notice and an opportunity to be heard in temporary conservatorships petitioners are legally cognizable issues in this case. Since the petitioners did not proffer any substantial evidence or identify specific procedures the public conservators should have followed, the appellate court limited its review to the issue of whether current procedure satisfies current requirements. The court’s review shall be general.
In determining whether the public conservator failed to satisfy due process requirements, the court turns to the legislature which defines the purpose of due process as
“The purpose of notice under the Due Process Clause is to apprise the affected individual of, and permit adequate preparation for, an impending “hearing.”
The conservatees contend that the public conservator routinely establishes temporary conservatorships and special powers over the conservatees without due process. The conservatees will be notified after the proceedings have occurred and the order has been effectuated.
but without service on the proposed conservatees of a petition alleging decisional incapacity, without service of declarations offering evidence in support of a finding on this issue, without legal representation, without a hearing, and without an affirmative indication of the proposed conservatees’s consent to imposition of the disabilities
Only after the orders have been written do temporary conservatees receive formal notice of hearing, appointment of counsel, and paperwork detailing the appointment and powers of the conservator. To add the petitioners contend that the public conservator’s revised paperwork shows no intent of addressing these deficiencies. The appellate court believed that the public conservator did not meet its requirement for imposition of special disabilities due to the following errors in serving “due process”. The public conservator omitted the following: contact information for counsel and ensuring representation was provided, time, place, date, and notice that temporary conservator and special disabilities will be imposed if no objection is entered.
contact information for the public defender‟s and patient‟s advocate‟s office, but did not ensure representation. The notices in the record do not set forth a date, time and place for a hearing on the petition or, in the alternative, a date the temporary conservator will be appointed if no objection is interposed. The revised notice form submitted by the Public Guardian is not materially different.
Despite the fact that LPS conservatorship hearings are dealing with incapacitated individuals, the appellate court regards these matters in the same way it would with informed consent matters for competent individuals.
The public conservator contends that the petitioners are incorrect and that §5357(d) allows special disability be imposed if the proposed conservatees is given five-days notice of such disabilities might be imposed, has access to legal assistance, and does not affirmatively object. The public conservator relied on case law and statutory laws to back their oral argument but available evidence does not show such. The court disagreed citing that it was still a violation of the due process clause. The court again reminds all that psychotropic medication administered against some one’s will is a violation of their civil liberties and privacy and should not be addressed without proper consideration of the facts and evidence. All persons are entitled to due process protection when facing such deprivations. Consent must be in person or through appointed counsel. Without such consent, violation has occurred despite current practices. The court adds that counsel cannot consent unless the conservatees has given them their consent.
The public conservator attempts to invoke § 5357(d) which mandates that
“disability may be inferred from the proposed conservatees’s failure to affirmatively object to a notice that the disability might be imposed, even though the conservatees is gravely disabled according to the Public Guardian’s moving papers, is unrepresented by counsel or a trained patient’s advocate (although he or she has been provided contact information for those persons), and has not been informed about the limits of the court‟s power to impose the disability (i.e., the decisional incapacity legal standard).”
The public conservator also cited Probate Code § 2250.2
“Unless the court for good cause otherwise orders, not less than five days before the appointment of the temporary conservator, notice of the proposed appointment shall be personally delivered to the proposed conservatees.”
This section of the legislature deals with the general appointment of a temporary conservator. The issues in this case deal with the special powers of the LPS conservator. The appellate court agrees with the public conservator but notes that even
due process requirements apply regardless of whether they have been codified by the Legislature and a practice that technically complies with a statute does not necessarily comport with due process.
The law cannot be partially correct. The public conservator contends that providing greater due process requirements for LPS temporary conservateeswas not the intent of the legislature and these differences in the code were proof. The court disagrees ending stating that it
See[s] no rational basis for distinguishing involuntary antipsychotic medication pursuant to section 5357(d) during a temporary conservatorship, which may last from 30 to 180 days, from involuntary antipsychotic medication during a period of involuntary LPS detention, which may last from 72 hours to 30 days or more. (See Riese, supra, 209 Cal.App.3d at p. 1320
For the reasons stated supra, the appellate court found that the public conservator had violated due process with its current practice of imposing a section 5357(d) disability. The trial court remands the issue of writ of mandamus to the trial court.
On remand, the court shall vacate the order, grant declaratory relief, and conduct further proceedings on the petition for a writ of mandate consistent with the views expressed in this opinion. Petitioners are entitled to recover their costs on appeal.