MAKING THE CASE FOR A PARENT WHO PRESENTS WITH STRANGE OR ERRATIC BEHAVIOUR AND WHETHER THE MINOR FALLS UNDER DEPENDENCY JURISDICTIONRead Now
MAKING THE CASE FOR A PARENT WHO PRESENTS WITH STRANGE OR ERRATIC BEHAVIOUR AND WHETHER THE MINOR FALLS UNDER DEPENDENCY JURISDICTION
A parent may challenge the sufficiency of the evidence alleging that a minor comes within the Welf & I C § 300 (b) definition of a dependent child. The parent may cite to the first clause of Welfare and Institutions Code section 300, subdivision (b)(1) which authorizes the juvenile court to exercise jurisdiction over a child if it finds by clear and convincing evidence that the child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child”. In many cases a parent with a serious mental illness may find themselves after the initial detention facing a juris dispo hearing where the department may be alleging that the parent’s bizarre behaviour alone is placing the minor at risk of harm or neglect.
DEPENDENCY SCHEME IS DEFERENTIAL TO THE MINOR; RELYING ON THE “CHILD’S BEST INTEREST STANDARD”
The import of the juvenile dependency scheme holds that dependency jurisdiction under Welf & I C 300(b)(1) can only be authorized after a finding of clear and convincing evidence, as the need to assign parental culpability must comport with federal due process considerations. Courts have held that ignoring these evidentiary due process rights would lead to parental rights being terminated and the family unit destroyed without any finding of unfitness or neglectful conduct.
Unlike LPS Conservatorship, the burden of juvenile court is first and foremost the welfare of the minor. The courts have stated that childhood does not wait for the parent to become adequate, and if quick action on the court is in the best interest of the child, then the court must act so even at the cost of some degree of risk to the parent’s due process rights. Additionally, the department and minor’s counsel in appealing to the court’s broad authority to control the proceedings before it, may ask the court to justify assumption of jurisdiction based on the ideal that a home environment free from the negative effects of mental illness symptoms is a necessary condition for the safety, protection and physical and emotional well-being of the child. Citing in part from Welf & I C § 300.2. Additionally, the juvenile court holds the special responsibility to consider the totality of the child’s circumstances, “including the maintenance of relationships with other adults with
whom the child has a strong bond”. In re J.T. (2014) 228 Cal.App.4th 953, 964.
HOW THE DEPARTMENT MAY PROVE THE “MORE” OR THE NEXUS BETWEEN THE BIZARRE OR ECCENTRIC BEHAVIOUR
In arguing whether the parents’ mental illness symptoms, the department must present evidence of a specific, non-speculative and substantial risk to the minor of serious physical harm as a direct result of the parents’ bizarre or eccentric behavior.
For example, if the department finds that the parent has a lengthy history of bizarre or eccentric behaviour that is tried to a DSM V psychiatric diagnosis then they may presume that a newfound episode of bizarre or eccentric behaviour may be jurisdictional as the court must consider the totality of the record. The department can proffer evidence showing that there is a pattern where bizarre or eccentric behaviour tends to leads to personal impairment or psychiatric decompensation to the point where the person’s behaviour places them at a risk of dangerousness to self or others, then the department can point out that the historical records creates a nexus to a “substantial risk” of harm or neglect to the child that is not insignificant.
The department may also consider other facts into determining whether bizarre or eccentric behaviour carries a risk of detriment to the minor. Drawing from the logic of Conservatorship of Guerrero, supra, decided after Conservatorship of Walker and Conservatorship of Benvenuto, a juvenile court could clarify that the following evidence that would be considered for a determination of present risk of harm to the minor: The patient lacks insight of his or her mental illness, the patient feels that they do not need medication, there is history showing that the patient cannot provide for themselves without medication, and they will not take medication without supervision.
Additionally, under Welf & I C § 300.2 a home environment should be free from the negative effects of [strange or erratic behaviour as a result of mental illness] as it may be a necessary condition for the safety, protection and physical and emotional well-being of the child. The referenced Welf & I C § 300.2 “negative effects” must be of the sort likely to result in serious physical harm or neglect to the minor. Counsel must look over the fact pattern and determine if there are such negative effects as described in Welf & I C § 300.2. Examples may include a parents’ bizarre behaviour even without evidence of direct violence or neglect. It may simply be evidence of the child’s emotional distress, poor grades, onset of new poor eating habits, or avoidance of the parent.
PARENT’S COUNSEL SHOULD NARROW THEIR ARGUMENT TO DEMONSTRATE THAT BIZARRE BEHAVIOUR WITH THE “MORE” OR A CLEAR NEXUS SHOULD NOT BE JURISDICTIONAL
Some parents’ advocates may argue that bizarre or eccentric behavior, even if it interferes with the parents’ normal intercourse with society, should not rise to a level warranting dependency jurisdiction unless and until the parents’ behavior renders that parent unable to fend for themselves and by extension their children, or places their children at risk of serious physical harm. Only then does the responsibility of the state to protect the minor override the parents’ individual liberty rights.
To ensure that parents are not unnecessarily having their parental rights placed at risk the statutory 300 (b) definition stipulates that the fact pattern needs to meet three elements: there is (1) neglectful conduct by the parent in one of the specified forms, (2) there is a nexus or causation; and (3) there has been serious physical harm to the minor, or a “substantial risk” of such harm.
First to fight the allegation that a parent was neglectful to the minor via strange or erratic behaviour due to their mental illness, counsel may want to advise the parent to engage with treatment programs, therapy, or schedule an appointment with a doctor prior to the juris hearing. If the parent shows that they made these efforts before the jurisdiction hearing counsel could argue that the parent that was aware of the risk that mental illness can play in taking care of a minor and that they took steps to control the mental illness. Another aspect is foreseeability. If the parent may have known about the potential ability to put their child in danger with their strange or erratic behaviour, then counsel would need to prove that the parent acted as a reasonable parent, had the insight or ability to foresee the dangerousness of their strange behaviour, and act on it by engaging in it away from the minor or in a way that the minor would be minimally impacted.
These strategies may help counsel overcome the nexus argument that the department may make and show that the parent has acted in a way that has demonstrated insight and minimized the chance of “substantial risk” of harm or neglect to the minor.
Additionally, parent’s counsel can fight the Welf & I C §300.2 provision citing that a home environment free from the negative effects of mental illness is a necessary condition for the safety, protection, and physical and emotional well-being of the child. Parent’s counsel can provide evidence of successful participation in a treatment program for mental illness as the court may consider such in evaluating the home environment. Counsel should be sure to enter into the record certificates and letters from service providers showing that the parent has been taking steps to address the mental illness. Because the Title XXs may not have evidence of such or the department may forget to include that in the report, parents counsel should be proactive and ask the client about their history of treatment and willingness to join a treatment group. Counsel may also argue that if the parent is complying with programs and treatment, leftover strange or erratic behaviours ought not warrant court jurisdiction when the record before the court indicates that the parent is availing themselves of mental health services appropriately.
Counsel may also state that the parent’s current actions are appropriate, reasonable and likely to be successful in alleviating the effects of bizarre or strange behaviour that might bring the minor under the court's jurisdiction.
PARENT’S COUNSEL IN PROVING THEIR CASE SHOULD CITE TO DAVID B V SUPERIOR COURT
Parent’s counsel would do well to cite to David B. v. Superior Court, 123 Cal. App. 4th 768, 789-90, 20 Cal. Rptr. 3d 336, 352 (2004). This case is a solid reminder to the court that even though the minor’s best interest always prevails, the court ought to be mindful that alternative lifestyles and different behaviours do not always in every circumstance pose a substantial risk to the minor.
We do not get ideal parents in the dependency system. But the fact of the matter is that we do not get ideal parents anywhere. The State of California is not in the business of evaluating parents and redistributing their offspring based upon perceived merit. The parents who come through the dependency system are more in need of help than most. If we are lucky, they are parents who can learn to overcome the problems which landed their children in the system, and who can demonstrate the dedication and ability to provide for their children's needs in an appropriate manner. They will not turn into superstars, and they will not win the lottery and move into a beachfront condo two blocks from a perfect school.
There was a post earlier about SB 502 (https://www.davisvanguard.org/2021/07/california-capitol-watch-assisted-outpatient-treatment-bill-would-loosen-criteria-for-involuntary-mental-health-treatment/ ) which proposed an amendment to the LPS Act to expand the criteria for AOT to include eligible conservatees who are the subject of a pending petition for termination of a conservatorship under the Act to receive court-ordered AOT treatment.
Simply stated: some LPS conservatees who are in the process of terminating their LPS Conservatorship, may be ordered to additional AOT to “ensure” continuity of care. However, without further expansion to AOT provisions, this has a “large” chance of “falling flat”.
First lets look at AOT’s current provisions….
If an AOT patient refuses to comply with the treatment program the court can apply graduated remedies:
(1) Order the patient to meet with his or her treatment team. Welf & I C §5346(d)(6).
(2) If that fails and along with the opinion of the treatment provider the patient may need involuntary hospitalization, the provider may request that the patient be detained in a hospital for up to 72 hours to determine if the person needs treatment. However, failure to comply with a treatment program alone cannot be the basis for civil commitment or a finding of contempt. Welf & I C §5346(f); https://www.sfdph.org/dph/files/CBHSdocs/AOT/AOT-FactSheet-82615.pdf; [citation]
The biggest obstacle is that for AOT participants to be detained under a 5150 for non-compliance, there also needs to be a finding of current risk of danger to self/others/or current grave disability. This brings most folks back to the biggest issue, getting involuntary treatment and medication. The law provides that involuntary medication cannot be part of an AOT treatment plan absent a separate Riese hearing and order by the court under Welf & I C §§5325–5337; 5348(c).
AOT only authorizes “coercive” treatment plans with no real solid legal remedies should an AOT participant elope or refuse to come into the clinic and “goes into hiding”. Now to address the “hiding” patient.
Under LPS Conservatorship law, if a conservatee leaves an IMD without the approval of the conservator or treatment team, the conservator by law can request that law enforcement take the conservatee into custody and return the conservatee to the facility. Welf & I C §5358.5.
However, as everyone knows with our limited funding all over all the counties, the public guardian may ask law enforcement to find and return a conservatee, but if they are unable to find an LPS conservatee quickly they will stop the efforts and terminate the conservatorship.
The same applies to AOT but even more so. Since most AOT participants are not in lock down facilities, they can elope very quickly and disappear among the homeless, a shelter, or a friend’s house rendering the AOT/5150 order useless. Most law enforcement officers will not take the time to call shelters, relatives, or search records to find the person as we are going through limited funding and the great resignation right now.
This is a nice “bill” in theory but there are lots of “loopholes” that would make passing this law “nice” but not very effective.
Distinguishing In re Clifton V from J.H. v. Superior Court Right to Confrontation in Child Welfare CasesRead Now
Distinguishing In re Clifton V from J.H. v. Superior Court
Right to Confrontation in Child Welfare Cases
These two cases deal with the fact that dependency cases are special hearings where the state has a unique countervailing interest; the best interest of the dependent minor.
A parent in a dependency proceeding has a due process right to confront and cross-examine witnesses. (J.H. v. Superior Court (2018) 20 Cal.App.5th 530). However, dependency parents do not enjoy the full rights to confrontation as a criminal defendant accused of a crime. The due process afforded to parents does not require “full-fledged cross-examination”. All that is required in a dependency proceeding is that the procedures comport with fundamental principles of fairness and decency. Because the receive and consider social service reports in determining `any matter involving the custody, status, or welfare of a minor. The children’s best interest, stability and permanency, are the court’s foremost concern and generally outweighed any interests such as full confrontation rights.
The case of J.H. dealt with the issue of whether a parent has the right to call the social worker who authored the report. The reports are admissible regardless of whether the authors are available for cross-examination. Welf & I C § 358, subd. (b)(1). The legislative intent established that once jurisdiction over a minor has been established, the admissibility of social workers reports is no longer conditioned on the availability of the author for cross-examination”. In J.H. the parent was noticed of the change in who would be testifying. The social worker’s supervisor would take the stand as the social worker assigned to the case had left the department. This supervisor testifying had personal knowledge of the case as they had supervised the case, reviewed CWS/CMS records, and spoken to 730 evaluators and therapists. Additionally, parent had not raised any challenges to the credibility of the witness[es] or subpoena the original social worker. All of these factors, were considered by the appellate court who opined that the lack of the prior lead to a finding that parent’s due process rights were not violated.
Additionally, parent alleged that not allowing them to call the original social worker violated Sanchez but the appellate court cites to the language of Sanchez which reads in part
Although parties in civil proceedings have a right to confrontation under the due process clause, the Sixth Amendment and due process confrontation rights are not coextensive. [Citation.] Due process in a civil proceeding “is not measured by the rights accorded a defendant in criminal proceedings, but by the standard applicable to civil proceedings”.
The main issue that the court in J.H. stressed was criminal defendants and parents in a dependency proceeding are not similarly situated. Criminal defendants face punishment and imprisonment whereas parents do not. Some could argue down the line that parents face the dependency law equivalent of the death penalty in a criminal case; termination of parental rights.
Now In re Clifton V came before J.H. but it had precedential value as a similar issue came up with whether parents have due process rights to confrontation where there is issue of credibility”. In re Clifton V., 93 Cal.App.4th 1400, 1405 (Cal. Ct. App. 2001).
In this case, the court denied mother the right to call and cross examine witnesses despite evidence that there was a clear credibility contest between the mother and the grandmother, which the juvenile court resolved only on the parties’ written submissions and argument of counsel”.
The appellate court states that due process in juvenile dependency litigation focuses on the right to notice and the right to be heard. This means that parents have a right to be notice and to have a meaningful hearing with an opportunity to examine evidence and cross-examination witnesses”. However, this right to a meaningful hearing is not just empty formality. Although due process is not synonymous with full-fledged cross-examination rights in the dependency realm, if the evidence presents in such a manner where there is a risk of prejudicial evidence, then the parent may exercise their right to cross examination of a witness.
The appellate court in its opinion stated that
“we cannot say mother was not harmed by the lack of opportunity to present live testimony and to cross-examine adverse witnesses. This result would be the same even under the more lenient "reasonable probability" standard urged by DCFS. Therefore, we must reverse the order of the juvenile court and remand for a new hearing on mother's section 388 petition, with the parties afforded the opportunity to present live testimony and cross-examine adverse witnesses”.
In this case, the two declarations were in direct conflict with one another, raising the inference either mother or grandmother was lying. Unlike the other case, should one party be found to have lied in their statements, this materially affected the case and in the absence of these statements, the outcome may have been different. The other case was contending that the social worker who authored the report was unavailable, but the record indicated that there were no serious material facts in dispute. In most cases, unavailable witnesses do not usually have something unique or contrasting information that cannot be gleaned from another available witness. So when counsel is arguing their case, they still need to adhere by the rule that Confrontation Clause does not extend to dependency proceedings and prepare to not have a social worker available on the day of trial.
I have heard word that some counties are using "changed circumstances" as its own legal criteria for LPS contested hearings. Drawing from dependency framework from changed circumstances and 388 petitions:
The MH court may deny release from conservatorship if the conservatee fails to show changed circumstances. Changed circumstances may be construed to mean showing (1) a change in circumstance (2) with substantial evidence that necessitate a change in the previous court order, and (3) and would be in patient's best interest. If the conservatee were to show all three, then the court should hold an [evidentiary] hearing to resolve any credibility or factual disputes. Some may assert that the conservatee when alleging changed circumstances must proffer specific facts supporting why it would it would be in the patient's best interests. Simple conclusory statements may be insufficient. Take for example if the court may not make a finding of changed circumstances where the conservatee has had evidence of serious and long term mental illness and grave disability, made little progress during the course of treatment, and has no concrete or serious plans for psychiatric care if discharged.
An appellant alleging merely changing circumstances would mean stopping treatment before the patient has fully stabilized. If a conservatee has repeatedly failed to remain safe in their community and provide for their food, clothing, or shelter, their posture that they might be able to return to safely living at some future point, does not promote stability in their own best interests. Life and society does not wait for the patient to become adequately stable. This alleged change in circumstances must be substantial and permanent. As covered in other areas of Welf and I C the petitioner would carry the burden of proof in showing changed circumstances. The conservatee bears the burden of poof showing that by a preponderance of the evidence that he or she is no longer gravely disabled due to changed circumstances. Baber v Superior Court (Hill) (1980) 113 CA3d 955, 965.
In regards to appeals and post judgement relief, (Prejudicial error) a trial court’s erroneous dismissal of a changed circumstances [rehearing] based on lack of jurisdiction may be harmless when the conservatee could not have prevailed regardless but a court cannot generally assume an erroneous lack of a hearing is harmless. The standard of review for denying a re-hearing alleging changed circumstances would fall under abuse of discretion
Comments on CACI 4009
For jury trials and bench trials, conservatees are not to arrive in shackles or restraints. CACI
4009. “Physical Restraint” provides in part:
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.
Directions for Use
When the restraints are concealed from the jury’s view, this instruction should not be given unless requested by the conservatee since it might invite initial attention to the restraints and, thus, create prejudice, which would otherwise be avoided.
The two seminal cases on this topic are:
People v. Duran (1976) 16 Cal.3d 282, 292 [127 Cal.Rptr. 618, 545 P.2d 1322]
Conservatorship of Warrack (1992) 11 Cal.App.4th 641, 647 [14 Cal.Rptr. 2d99]
Although patients are not allowed to be shackled, the definition of shackles; “refers to all forms of handcuffs, shackles, manacles, leg irons, and other restraining devices” (People v. Duran, 16 Cal.3d 282, 288 n.5 (Cal. 1976), a case should also be made to include gurneys as most conservatees arrive on gurneys and certain courts do not allow the conservatee to leave the gurney and they must sit in a bright yellow gurney; the same that they are detained during their initial 5150.
Given that mental health court usually handles only LPS matters and probate court only probate and limited conservatorships, mental health commissioners/bench officers should be intimate with mental illness and stigma.
Significant differences exist between probate court and mental health court. In LPS Conservatorship court proceedings the conservatee is involved in the court proceedings because they may be subject to a determination that they are gravely disabled beyond a reasonable doubt. Conservatorship orders are not made until the conservatee has been declared by proof beyond a reasonable doubt that they are gravely disabled. The issue of the patient’s ability to provide their food, clothing, or shelter due to a mental illness is the only central issue. The presumption of psychiatric fitness that underlies probate law in the probate court just does not apply to LPS Conservatorship cases. Rather the mental health court, which has been intimately involved in the treatment of the conservatee, is best situated to make involuntary treatment determinations based on the best interests of the conservatee without any preferences or presumptions.
Based on this, presenting the conservatee on a gurney would create this “preference or presumption”. People v. Duran, 16 Cal.3d 282, 288-89 (Cal. 1976) opined that without “evident necessity, [shackles] impose physical burdens, pains and restraint upon a [detainee] during the progress of his trial and inevitably tends to confuse and embarrass his mental faculties, and [therefore] materially to abridge[s] and prejudicially affect[s] his constitutional rights of defense and … would materially impair and prejudicially affect his statutory privilege of [serving as] a competent witness and testifying in his own behalf”.
The Duran court held accordingly that it was prejudicial error for the trial court to refuse to allow the defendant to appear before the jury without physical restraints unless there was "evident necessity" for the restraint”.
Conservatorship of Warrack is the California opinion that extends the Duran findings to LPS Conservatees. Conservatee’s attorney first brought to the jurors' attention that he had been brought to court in restraints, but stated that the jurors were not to presume him gravely disabled as a result of those restraints”. “During the first two days of trial, he was brought in here in leather handcuffs and leather foot restraints and with a male nurse sitting there behind him”. Conservatorship of Warrack, 11 Cal.App.4th 641, 645 (Cal. Ct. App. 1992)
When the conservatee presented in front of the jury with restraints and nurse attendants in the courtroom, counsel instructed the jury to “not draw any inference from those restraints, [and] what [they] hear from [appellant's trial counsel] about the restraints . . . is not evidence and is not to be considered”.
The court refers to criminal case law that cites that the shackling of a criminal defendant will prejudice him in the minds of the jurors as a criminal accused of a violent act makes his appearance before a jury in shackles will likely to the jurors inferring that he is a violent person predisposed to commit crimes of the type alleged. Just like a criminal defendant, “the image of a person bound hands and feet with leather restraints and closely attended, as in this case, with two male nurses gives an image of a person out of control”. Conservatorship of Warrack, 11 Cal.App.4th 641, 647 (Cal. Ct. App. 1992)
Now drawing on these two cases, plenty of media outlets show images of mentally ill persons being loaded onto ambulances on stretchers/gurneys and thus creating the “modern” image of shacking. Because of such, bench officers should consider that the image of a conservatee strapped into a gurney is aligned with the same image of people being immediately detained off the street on the initial 5150 hold where they were “out of control” and acutely ill.
Even if the conservatee were not in shackles per say, wheeling them into the courtroom in a gurney creates the same image of “out of control” mentally ill patient in the jury’s mind no matter what admonishment the court gives.
The notion that “a curative jury instruction is a very practical and useful way, in many circumstances, for the trial court to have an immediate opportunity to correct its own perceived errors before it is too late” may not apply here. U.S. v. Lowis, 174 F.3d 881, 885 (7th Cir. 1999). However, “Trials are rarely, if ever, perfect” and “gross imperfections should not go unnoticed”. Id. Having a conservatee appear before the court in a stereotypical manner of being restrained on a gurney without good cause can be viewed as a “gross imperfections which would overpower the [trial] court's instruction to the jury to disregard [any jury] statement/[advisement]”.
U.S. v. Lowis, 174 F.3d 881, 885 (7th Cir. 1999)
A gross imperfection renders. “a curative jury instruction” useless as once a jury has heard seen the “gross imperfection”, it is very difficult to un-ring the bell with a cautionary instruction that the weight of the expert's opinion is dependent upon the facts upon which it is based and not the appearance of the conservatee alone. Although case law addresses this issue, this aphorism has no real power as the human mind cannot simply forget or ignore something.
When viewed in the context of “society”, even if initially admitted in error, presenting a conservatee bound to a gurney can be a very “loud bell”; one which is impossible to cure.
Additionally, an appellant cannot raise an issue without evidence of such in the trial court record. Unseen or unconscious bias is impossible to “record”. Anything after “read and considered” is the record and this bias almost never makes it into what the judge reads or says.
The question is not whether the conservatee will incur some incidental benefit from involuntary treatment. Involuntary treatment will always confer some incidental benefit to patient as they are stabilized on medication during their hold (assuming they have been Riesed). The issue is one of substantive due process meaning to what extend can the government interfere with someone’s fundamental liberties. So currently people are holding issue with the definition of grave disability and whether it it is too “vague”. Current legal authority dictates that the statutory definition of GD is not unconstitutionally vague or overbroad. Conservatorship of Chambers (1977) 71 CA3d 277, 285; Doe v Gallinot (CD Cal 1979) 486 F Supp 983, 991, aff'd (9th Cir 1981) 657 F2d 1017.
For clarification on this issue of vagueness, “As a matter of due process, a law is void on its face if it is so vague that persons 'of common intelligence must necessarily guess at its meaning [27 Cal. App. 4th 575] and differ as to its application”. Such vagueness occurs when a legislature states its [intent] in terms so indefinite/vague that the line between [mentally ill]and [normal] conduct becomes a matter of guesswork”. (Tribe, American Constitutional Law (2d ed. 1988) § 12-31, p. some parts edited for clarity. Any party challenging the statute as vague must show that they are an "entrapped innocent” and to ensure justice the current law would need to be draft more precisely.
Now that that has been clarified, we turn to the issue where people are contending that food, clothing, or shelter is too vague. Yes we do have case law that answers the questions that lay beyond just food clothing or shelter, but because of CA’s horizontal stare decisis problem that you and I have discussed before, opinions from our intermediate appellate courts are not honored “evenly” leading to discrepancies in how the counties are treated GD patients. So, because “medical neglect” does not have controlling authority ie laws/caselaw that controls what all CA superior courts decide to do, we as lawyers must use our skills and paint a picture for the court to understand how psychosis and neglect of medical needs due to said psychosis are grounds for a finding of GD.
A note: the way I would do this differs from my colleagues so I would suggest that you reach out to both of them and ask them how they would approach this question.
I deal mostly with the public guardian/treating hospital around the 14 day/30 day/ T-con hold periods so my write ups are more lengthy than just a note to a PERT officer out in the field. When dealing with PERT and emergency personal, a different style needs to be adopted to ensure that they read it because everyone here is on limited time.
So the way I may address this is:
PATIENT IS CURRENTLY A DANGER TO SELF AND GRAVELY DISABLED AS A RESULT OF BEING UNABLE TO CARE FOR THEIR MEDICAL NEEDS DUE TO ONGOING PSYCHOSIS
Patient is currently GD because they suffer from ___and ____and ____ symptomology and because of current, ongoing, and severe _____ symptomology, they are unable to attend to their basic medical needs of ______ and __________. The current legal authority provides for a finding of DS/GD based on inability to care for one’s medical needs.
In justifying extending a ____ hold, the treating clinician must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant his or her belief or suspicion.
Here is where I would give a paragraph of the patient’s specific psychiatric and medical history that has brought them to the hospital. I would include psych and medical history too if relevant.
Based on this evidence, the patient’s ongoing delusion that the govt is poisoning their food or that the medical doctor will steal and sell their organs has prevented the patient from choosing to treat their diabetes or undergo surgery for a hernia. If the patient does not receive treatment for ______ condition, then their physical health will deteriorate to the point where they need treatment in the ICU or they may fall into a coma, have a stroke, etc etc.
The patient’s choice to not undergo treatment for _____ condition is not a voluntary choice. The law provides that a person cannot be found GD if their actions are voluntary and stem from alternative lifestyle choices . This is not the case. From the facts listed above, the patient is operating under a false delusion that has stripped them of their rational decision making. In the absence of their ongoing psychosis, they would not be making _____ decision to refuse treatment for _____ medical condition. Additionally, this pattern of refusing medical treatment because of their psychosis is not a novel situation. On [date] and [date] patient has refused treatment for _____ citing their delusion _______ which tells them that _________. Welf & I C §5008.2. mandates that the "historical course" of the patient's mental disorder must be considered when applying the definition of mental disorder [and grave disability].
Additionally, if dangerousness to self cannot be assessed at this time through physical actions alone, we are asking for a reconsideration based on the following; “[t]he threat of harm to oneself may be through neglect or inability to care for oneself. In re Doremus v. Farrell (D.Neb. 1975) 407 F.Supp. 509, 515.
The threat of dangerousness to self is the same as one who may be burning themselves or cutting themselves as patient’s neglect of crucial medical conditions would lead them to the same place as someone who is harming themselves; the ICU or the ER. Patient has been neglecting/refusing to treat ____ medical condition and should this condition remain untreated, then severe medical consequences shall arise such as ________ all which would land the patient in the ER or ICU for life threatening complications.
Finally, when determining if a person should be taken into custody pursuant to subdivision (a), the individual making that determination shall apply the provisions of Section 5150.05, and shall not be limited to consideration of the danger of imminent harm.
The patient may be refusing treatment for their medical condition at this present moment, but based on ____ medical authority, if ____ condition is not treated with ____ time frame, then severe complications like ________ will occur and the patient will need immediate hospital transportation and there may not be a body present to ensure that they receive urgent ER/ambulance care. I am asking because of this reasoning that the treating clinician make a finding of current dangerousness to self and current grave disability based on all of the above.
Now there is some debate between me and my colleagues about how much is too much. Like I’ve discussed before, I’ve come from the dependency system, so we are always taught about statements not making it into the records and appeals being forfeited as a result. I don’t like to allow room for that so when I include a written report of the psych and medical symptomology and the legal authority that allows for involuntary treatment, I like to cover all controlling authority favourable and unfavourable because if the hospital/cert officer brings up something unfavourable to the outcome I want, there are “facts”, information, and legal reasoning as to why the bench officers or cert officer’s adverse legal authority does not apply in my case.
Again each case is extremely fact specific so without more facts its hard to build a complete case.
Opinion on LPS hearings being presumptively nonpublic hearings.
There is a bill out addressing this issue.
The bill is not changing anything important but rather just clarifying that all LPS hearings; not just LPS Conservatorship hearings, are to be private.
Some proponents believe that LPS hearings should be open as the “essential goal of openness is to expose failings in the system”. Some may try to open LPS Conservatorship hearings to the public like they tried to do to dependency a couple of years ago. (https://www.latimes.com/opinion/opinion-la/la-oe-newton-column-dependency-court-20120213-column.html) Some advocates contend that greater transparency in the mental health system and news access to LPS courts would improve the public’s sense of how the system works and what loopholes may exist. However, a far larger number of people including disability rights CA and patient’s rights believe that making LPS hearings public would bear consequences that would far outweigh any benefits.
Current legal authority mandates that LPS proceedings are “unique” and are “especially designed to help encourage mental health treatment, protect the public, safeguard the rights of patients, and encourage patients to seek treatment” and if this privacy were violated patients would far less apt to seek help. However, current law allows for patients to request that others attend their hearing but this request must be made directly and not through on behalf of the patient via their counsel. Sorenson v. Superior Ct., 219 Cal. App. 4th 409, 423, 161 Cal. Rptr. 3d 794, 805 (2013). However, the main directive of Code is to ensure that all court hearings under the LPS Act are to “be carried out with the utmost consideration for the privacy and dignity of the proposed LPS conservatee. Welf & I C § 5200.
Juvenile Dependency and