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I would like to have some personal words about the upcoming decision regarding B. (E.), CONSERVATORSHIP OF. There was another petition for review granted at the Supreme Court level.
I would like to state that given the nature of the testimony given during hearing, the psychiatrist has ample opportunity to demonstrate grave disability. He is exempt from normal rules of hearsay and his report can paint a picture of the patient’s level of decompensation. For many doctors who deal with LPS Conservatorship they are accustomed to testifying and as I would say have “no bone in this fight”. Sure they can argue that they are invested in their patient’s outcome yet seriously a lot of physicians already suffer from caregiver fatigue and do not actually hold stake in the outcome. I would like to add that the stress of having to be forced to provide live testimony can invoke undue stress and exacerbation of symptoms. Even parents involved in a dependency proceeding with no underlying mental illness often are reminded of the importance of deportment due to visible crying or stress during the initial detention and juris/dispo hearing. They are reminded that the judge may not subconsciously view their parenting abilities favourably if they are showing signs of distress no matter how fitting it may be (given their child has been removed). And we all know once a bell is rung it cannot be un-rung. First impressions matter. Now removing emotions from the equation lets look at some other case law to compare. Take physical restraints which have legal authority banning their use absent an order to show cause. CACI 4009 Physical Restraint The fact that respondent has been brought before the court in physical restraints is not evidence of grave disability. You must not speculate on the reasons for such restraints. This means that a proposed LPS conservatee in a jury trial may not be shackled unless the trial court follows the procedures outlined in People v. Duran (1976) 16 Cal.3d 282. First, the proposed conservatee may not be shackled absent facts on the record that justify the trial court’s decision to require shackles. Second, where the trial court determines that a proposed conservatee must be shackled, and those shackles are visible, the court must sua sponte instruct the jury that the shackles are not evidence of disability. “The imposition of physical restraints in the absence of a record showing of violence or a threat of violence or other nonconforming conduct will be deemed to constitute an abuse of discretion.” (People v. Duran (1976) 16 Cal.3d 282, 291.) The court has found that the use of restraints has a negative implication in criminal proceedings and thus reversed the decision accordingly in re People v. Duran. The risk to freedom and the stigma attached to involuntary conservatorship led the California Supreme Court to consider the integrity of the fairness of the fact finding process in regards to restraints with LPS Conservatorship. Because LPS Conservatorship already shares two similarities with criminal matters, burden of proof and unanimous jury as part of an effort to reduce the stigma behind LPS Conservatorship it makes sense to also add protection against compelled testimony. With restraints it gives the impression to the jury and judge that the individual is not in control of their actions, is mentally unwell, and generally unsafe to be in society no matter the prior events. It sets a precedent for the entire hearing or trial. Once a judge sees the patient in restraints they imagine a “crazy person” during the trial…. A person not in control of their emotions or actions. Testimony and clear evidence proffered by the conservatee may go in one ear and out the other thus invalidating the patient’s due process rights. I strongly hold that the same applies to compelled testimony. The patient in most cases has not committed any criminal action where compelled testimony would be mandated. They are simply mentally ill and in need of treatment. Should the court choose to rely mostly on the doctor’s declaration to make that necessary finding of grave disability, why would the patient’s forced testimony be necessary. Forced testimony can make the patients uncomfortable and bring about symptoms that are not normally expressed. For example, they may stutter, draw blanks on what they are saying due to stress, cry, yell, or not be able to articulate their knowledge about the proceedings. As lawyers already know there is a specific manner in which examination and cross are performed and patients are unaware of this. Thus, they may be prompted in such a manner to provide a leading answer that they lack the mental capacity to foresee. Another aspect is that a patient may have not been fully stabilized and may be experiencing symptoms. Take for example if there is a patient who is suffering manic delusions, they may spout non sequiturs, assert their delusions forcefully, and demonstrate psychomotor agitation that appears “ridiculous”. At the time patient may not be aware of their bizarre behaviour, but a lot of patients on outpatient programs have voiced great embarrassment and shame over their manic actions. They feel a great shame over their outbursts and wish they could erase the past. Granted these outpatient manic patients may have had shameful experiences at work and with family. Those persons may be more forgiving and understand the patient’s behaviour. Manic patients will eventually have a chance to explain the disorder and manic behaviour and achieve closure over their bizarre behaviour. However, within the realm of the court room, patients usually have one chance to present themselves to a judge and a jury. Regardless of mania or psychosis, patients still have dignity and wish to maintain that regardless of current mental status. The court rarely offers them a chance to redeem themselves and explain their behaviour and come to a resolution. They will never see those jury members again so they cannot achieve closure with them again. The patient may stabilize and feel embarrassed by their actions yet know that they left an impression with the court or jury that is very hard to undo. And those feelings of shame definitely fester leaving the patient feeling violated and humiliated. Because of this the supreme court reviewing this decision in the near future should also apply the very human experience of mental illness alongside the legal authority they choose to cite in their opinion. Because I have read many opinions that cite lots of legal authorities and logic but rarely address how it may feel for the patient. Lets try and bear all of this in mind when the court renders its decision and hope that it upholds the finding of the appellate court.
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The psychiatrist at Alpine, where Conservatee is a patient, takes the stand. His diagnosis: paranoid schizophrenia. The story, as it emerges, is that Conservatee, 35, some six weeks ago presented herself at Alvarado Parkway Institute’s emergency room. She was, says the psychiatrist, “conversing with astronauts” and “felt that astronauts were in her head and gnawing away at her stomach, that she had worms in her and that there were snot rags lying all around the place.” She was emaciated, “simply not eating and taking any liquid at all. She felt food was poisoned and beverages were poisoned.” Although Conservatee claimed she had been staying in a hotel room, hospital staff insisted she was homeless.
Because Conservatee wishes to be returned to her family in Arkansas, Alpine staff has attempted to locate her relatives there. Says the psychiatrist, “Those people who know her refused to take her in.” While Conservatee mutters, “No, no,” he goes on. He believes Conservatee has no insight into her condition, and, were she discharged, she would refuse medication. However, shortly after her admission to Alpine, she did begin eating — or as the psychiatrist described, “She became compliant with food and fluid intake very rapidly.” And “she has been participating in the program at Alpine with good attendance.” PD leads her client through questions designed to show lack of grave disability. Asked where she is residing. Conservatee says, “I was staying back in Arkansas. First I chose California because of surgery that I have, and I have been trying to find someone to help me with my surgery that I have so I can get my job.” Asked how she would get to Arkansas, Conservatee says, “On the Greyhound bus.” And how much, she’s asked, would it cost to ride the bus home to Arkansas? “A hundred eighty-one dollars. Special is $68.” PD asks about the astronauts. “Did the astronauts ever tell you to do anything wrong or bad?” “No. They are not bad astronauts.” “They are good astronauts?” “Yes.” PD argues against establishment of conservatorship. Conservatee was not homeless — “has, in fact, never been on the street, she stayed in a hotel and with friends.” Conservatee’s weight has stabilized, she now denies feeling food is poisoned, she recognizes she must take her medication. Although PD pleads her client’s case passionately, it seems clear that Conservatee will not be released. And indeed she’s not. “Delusion in and of itself would not be dispositive of the court’s decision,” says Judge, “but the fact is that when she came into the hospital she was emaciated. While she’s on medication she seems to be doing all right.... “My problem is, I feel that I would be turning out a child without assistance if I were to say she’s okay to go out on her own. We feel she does need service of a public conservator. All disabilities imposed except the right to vote. A closed, locked facility is the least restrictive facility.” Conservatee, tears running down her cheeks, bolts out the courtroom door. Before the door closes, she looks across the courtroom and up toward the bench, mutters, “I feel tricked.” The psych tech who brought her to court is right behind her. Warning back from earlier years of LPS hearings. New case law may have changed some factors.
“I will listen to the doctor’s testimony, I will read reports in your case, I will listen to what you have to say and to any witnesses brought on your behalf. Then I will make a determination as to whether, by reason of mental disorder, you need a conservator to assist you with the daily function of life, that is, food, clothing, and shelter.” If I determine that is the case, then I would appoint a conservator to assist you. The conservator could either be the public conservator or a private conservator — that is, a friend or family member who would assist you with these functions. “Then I would decide least restrictive placement for your living — that is, the type of living arrangement, not the specific place where you live. That is determined between you and your conservator. That could be anywhere from independent living (that is, living out on your own) all the way up to a closed, locked treatment facility or a state hospital level. “I then must determine what rights may have to be restricted in your case — that is, whether or not you should have the right to possess a firearm, to vote, to contract, to make medical decisions that are related or unrelated to your mental disorder. “You have certain important rights with respect to this morning’s hearing. You have the right to contest conservatorship, to say, ‘I don’t think I need this,’ and tell the court why. You have the right to the assistance of an attorney. If you cannot afford an attorney, then the public defender, who is very skilled in this area, will assist you. If you can afford an attorney and wish to bring in your own private attorney, you may do that as well. You also have the right to a jury trial. After this hearing is over, you may request a jury trial in this matter. “It’s important to know that if the conservatorship is established, it will last for only one year and that it must terminate after that one year, unless it is reestablished by another court hearing.” Dr. is called to the stand to testify in behalf of the county. Doctor, have you had an opportunity to examine Yes, I did. I saw him here in the courthouse in the forensic evaluation unit....” Have you formed a diagnosis as to his mental condition?” “Yes, his current diagnosis consists of what is called schizophrenic disorder. In the past, he’s been diagnosed as suffering from schizophrenia and later with ‘bipolar’ what used to be called manic-depressive illness. His current treating physician feels that schizophrenic disorder is the most appropriate diagnosis, and I concurred with that assessment. “As a result of this mental disorder, is it your opinion that he’s unable to provide for his own food or clothing or shelter without assistance?” “Yes, it is.” “What about conservatee's functioning led you to believe that he is unable to provide for his basic needs?” “The essential situation with this patient is that he tends to decompensate and require acute hospitalizations. When given appropriate medications, he then responds well and stabilizes. There has been a repeated cycle of this occurring. “The current problems really have to do with his needing more insight into his own needs for treatment.... He evidenced some symptomatology that was relatively passive — illogical and psychotic thinking, difficulty in sequencing thoughts, some relatively mild depression.” "Conservatee is ambivalent about taking medications and hopeful he may not need them in the future.” Further, says Michel, “He indicated that sometime in 1990 he had gone off medication because he didn’t like his previous board-and-care. He didn’t see judgment problems inherent in that.” Conservatee is 38 years old, that he was first diagnosed at 19 as having a mental illness, that he has lived in a series of board-and-care facilities, and that in the past four years he has been hospitalized several times in an acute-care facility. Conservatee's ceasing to take medication and subsequent decompensation was a pattern that, according to Dr, is not uncommon. “Patients stabilize and do relatively well and then begin thinking that they can do without medications. When they try to go off them, then you see the cycle continue.” “Is he capable of operating a motor vehicle?” “Of entering into a contract?” “Making medical decisions unrelated to his mental disorder?” “Completing of a voter registration form?” “Might he be a danger to others in possession of a firearm?” “In your opinion, at this time what is the least restrictive level of placement for him?” “At present, my opinion is that a board-and-care facility is appropriate, because he still requires prompting to eat, to take medications, to go to treatment. I think, though, that the goal for him in the very near future should be independent living.” Public Defender: “You noted that he ceased medications in 1990 in order to get out of the board-and-care in which he was living?” “Well, he said his reasons for ceasing medications there were because he didn’t like the board-and-care.” “He did specifically state that it was dirty and he didn’t like being there?” “Yes.” “Have you been to that particular board-and-care?” County counsel objects. Judge overrules the objection, directs Dr. to answer. “No,” Dr. states, “I haven’t.” PD queries Dr. about conservatee's recent compliance with taking medication and attending day treatment. Dr notes that conservatee's has, with prompting, taken medication, attended treatment. After more questions from PD to Dr., questions intended to permit conservatee's to establish his ability to live without conservator’s supervision, conservatee's is sworn. PD asks his client, “You understand the doctor’s concern that off conservatorship you may cease to take your medications?” “I would like to explain to the judge that this has occurred in the past, but my mind has stabilized to a point where I am more coherent within myself and in my surroundings. So I am willing to take medication at all costs.” “What are the costs?” “I don’t know the costs, but at all costs. I mean, it’s really destroying your life if you are not taking medication if needed.” Judge asks, “What do the medications do for you?” “I am not sure. I know my thinking is not as clear as it used to be, Your Honor. And it seems like maybe the doctor right now has doses a little bit high, but I will continue taking my medication, because life is very precious and, you know, I don’t have 35 years left on this earth. I want to get a job. I want to work. I have two years of college. There is a lot of free time when you are on disability and it’s no fun. I would rather be industrious and do what I have to do and contribute to life.” “What happens,” the judge asks, “if you cease your medications?” “Well, at present, I think it would be unfeasible. I think I have a good relationship with the doctor. I think he knows me better than myself at times. He’s a good doctor. I want to stick to him. But I don’t have enough time to talk to him. He’s a real fast-acting doctor. I tell him I want to tell him something, but everybody crowds around and starts talking and I can’t get through the right amount.” Conservatee goes on to say that he would like to request a new social worker “because this one doesn’t help me out, doesn’t even talk to me sometimes.” PD asks Conservatee, “Why did you cease taking medications?” “Because I was scared. It’s bad — the neighborhood isn’t as good as it was — and it’s like a dungeon where I slept. The lady is okay, but the environment is dark all the time, and it scared me, you know.” County counsel questions Conservatee, “Do you have many friends at the board-and-care or in your day treatment?” “That is the problem, how I couldn’t resolve the schizophrenia because I don’t want to fool around with those people. I mean, you know, it’s a bad influence. That is why I ran away from the other board-and-care, because it’s a bad influence. I am not comfortable. I run to the doctor. But they should have the board-and-care where I am now checked out because there is no hot water there, and I am scared, Your Honor.” County counsel has no further questions. The judge speaks, notes that based on Dr. testimony, observing Conservatee, and reading the report, she believes conservatorship should be re-established. She adds that she thinks Conservatee has “legitimate concerns about medication,” that “without any question, there needs to be more dialogue about medication between Conservatee and his treating physician.” “I understand what you are saying. I understand that you are saying, ‘I don’t like the side effects of these medications.’ At the same time, the history says that when you are taking medications, you don’t engage in behaviors that end up getting you picked up by police and brought back to the hospital. I think you know that too, so it’s a matter of getting it worked out. You have to live with some unpleasant side effects in order to stop those bad behaviors. And apparently Dr. thinks that you are very close to getting it worked out, and he thinks in a few more months of getting stabilized, you should be okay for independent living. So I think there is good hope for you.” Judge wishes Conservatee luck and turns then to county counsel, suggesting a note be made in Conservatee's file that he would like to have further talk with the social worker. I’m going to need everyone to do better. Recent work has made me realized that a lot of professionals still are unwilling to apply certain legal standards. Keeping someone who is clearly gravely disabled should not be like pulling teeth. I fully understand that legal standards exist to protect due process rights yet we find ourself discharging clearly sick persons back into detrimental, dangerous, and overall unstable living situations. Take the following matter: ISSUE OF CURRENT GRAVE DISABILITY AND NEED FOR LPS CONSERVATORSHIP LPS Conservatorship law mandates that a qualified professional may petition the court for LPS Conservatorship of a gravely disabled person under Welfare and Institutions Code § 5350 and § 5008 (h). In order to make the appropriate finding of grave disability, the hospital psychiatrist and other involved professionals must make a finding that the patient is currently unable to provide for their food, clothing, or shelter I have spent a better half of a week preparing evidence to support this finding in legal terms for a 14 hold where the standard of proof is extremely low. Even when faced with obvious evidence both in photographic form and written declarations, the hospital still wished to discharge the patient back to a very dangerous situation citing that the patient chooses to live in such a way. When presented with all of the relevant evidence the hospital chose to say that living in feces and urine was a matter of choice and that there was no danger in eating rotten expired food. Again legal standards so exist but common sense must pervade. Presenting credible evidence to the hospital that discharging someone back to such a place with no effective safe third party assistance was not enough. If the below is not met the patient can be discharged: Even if a third party offers assistance, the court may still determine that the assistance offered, though well-intentioned, is not sufficient to permit the conservatee to survive safely in re Conservatorship of Johnson, 235 CA3d at 698 Yet this case refers to a LPS Conservatorship matter not a simple 14 day hold. Yet we had to pull citations of several cases of current grave disability and lack of proper third party assistance to convince the hospital to continue the hold. Sometimes the effort required felt like a LPS Conservatorship trial with a full standard of proof showing GD beyond a reasonable doubt, the same as criminal matters. Yet it wasn’t. We ended up with something like 15 pages of documentation of grave disability and dangerousness to self just to continue the hold and convince the treating physician to submit a referral for LPS Conservatorship. We are not talking about a P-con hearing... just 14 day holds and referrals. I have seen people LPS conserved for far less evidence. Failure to apply common sense for hold that requires low standard of proof leads to needing to submit more emotionally damaging evidence and pulling of strings that do not have to be pulled. There is a reason people state that conservatorship work can break families and irrevocably harm families. In the name of keeping their loved one on a hold detrimental statements are made further harming relations as the patient eventually hears these statements and not understand the need to state such to overcome bureaucratic hospital policy. Instead they feel betrayed when in face such admission are a “necessary evil”. We’d love to spare emotions at all cost but sometimes everyone involved feels like they are trapped with no other way out. Not everyone involved in a loved family member’s case has the time nor the resources to conduct such research, general legal citations, pull all kinds of strings, and deliver numerous copies to the hospital. They are simply seeking help for the family member and there needs to be better structures in place to ensure continuity of care rather than letting that revolving door continue to slide. Disagree with me or not but I strongly aver that if a family member is a regular should we be paying closer attention with each hold. Look for increased risk of grave disability and need for LPS Conservatorship. Obtain more collateral if needed and then if ya’ll are out of space or staff then we should move to reduce the shame of just saying we don’t have enough space. However, after pulling teeth and more documentary and legal evidence the patient was continued on his hold making me believe otherwise. The hospital cites that “three is the magical number” for LPS Conservatorship yet in the same breath dismisses recidivist patients as bothersome and prepares for early discharge. We need to do better for the sake of our patients, the mental health legal profession, and the healthcare industry. Because if the last week spent trying to get those 72 hour and 14 days was that much work ya'll I worry about how challenging this upcoming LPS Conservatorship petition may be.   |