TECHNICAL CONSIDERATIONS OF CARE COURT LIMITED APPLICATION IN RE INCREASED LPS CONSERVATORSHIP REFERRALS

TECHNICAL CONSIDERATIONS OF CARE COURT LIMITED APPLICATION IN RE INCREASED LPS CONSERVATORSHIP REFERRALS
 
 
So this shall address the issue of how CARE lacks a solid plan of enforcement and the direct issue referring for LPS Conservatorship. This shall analyze each element of SB 1338 seriatim and its application within the current framework of LPS Conservatorship.
 
SB 1338 reads in part:
 
 
5979. (a) (1) If, at any time during the proceedings, the court determines by clear and convincing evidence that the respondent is not participating in the CARE proceedings, after the respondent receives notice, or is not adhering to their CARE plan; after the respondent receives notice, the court may terminate the respondent’s participation in the CARE program process. (2) To ensure the respondent’s safety, the court may utilize existing legal authority to request an evaluation of a mentally disordered person under to Welf & I C § 5200.
 

• The first hurdle treatment advocates need to overcome shall be that “Clear and convincing evidence requires a high probability, such that the evidence is so clear as to leave no substantial doubt. ( Ibid.)” In re Isayah C., 118 Cal.App.4th 684, 695. If we are indeed facing pushback from DRC and ACLU then this standard of clear and convincing shall be hard to overcome as patient’s counsel will state that clear and convincing standard means a finding that the evidence that patient failed to participate in CARE court or failed to adhere to their program must be so clear and strong to command the “unhesitating assent of every reasonable mind” In re Amelia S. (1991) 229 Cal. App. 3d 1060. The wording is deceptively easy but “participation” in CARE court will eventually translate into did the county provide reasonable [CARE] services to the patient. The health agency shall carry the burden of proving that reasonable CARE services were offered and assistance access to those services was in place. The court’s reasonableness inquiry at the review date will focus on the sufficiency of the agency’s services as in was the plan individually tailored to address the unique needs and circumstances of the patient. Although services need not be perfect, the MH health agency must show that it identified the problems resulting in CARE involvement, offered appropriate corrective measures, and kept in contact with the patients and made reasonable efforts to assist them. The CARE caseworker must accurately inform patients of CARE treatment plan requirements and maintain contact with service providers to ensure patient is receiving services. The health agency cannot use its own failure to ensure that parent is enrolled as reason to terminate CARE. In re G.S.R., supra, 159 Cal.App.4th at p. 1202. Now having seen how this plays out often patient’s counsel will secure an extension for the patient to continue in participating in CARE even if they may be decompensating but not to the point of GD. Recall that there is a different standard required for CARE that is serious but less severe than LPS Conservatorship. With this heightened level of anticipated patient advocacy the burden as you can surmise will actually be closer to proof beyond a reasonable doubt.

 
 
The next issue is mostly a matter of clarification. The SB cites to Welf & I C § 5200. This code reads in part: Any person as a result of mental disorder, to be a danger to others, or to himself, or to be gravely disabled, may be given an evaluation. Welf & I C § 5213 (a) finds if upon evaluation, the person is found to be in need of treatment because they are as a result of mental disorder, a danger to others, or to himself, or gravely disabled, they may be detained for treatment in a facility for 72-hour treatment and evaluation. However, per Welf & I C § 5203, any individual who seeks a petition and know that the person is not, as a result of mental disorder, a danger to himself, or to others, or gravely disabled is guilty of a misdemeanor, and may be held liable in civil damages by the person against whom the petition was sought. Welf & I C § 5208 notes if the person to be evaluated fails to appear the professional person in charge, shall notify the person who served the order to have the person to be evaluated [and] detained.
 

• As many know hospitals and agencies are wary of civil suits. The clause about making a false statement carries considerable weight as such character judgements are technically subjective. Even those who are trained in 5150s are wary to initiate a hold citing that the person seems capable enough just to evade the legal standard despite a reasonable person understanding that patient is severely decompensated. As discussed ante setting the standard at clear and convincing makes for a lot of room to find exceptions to a seemingly simple burden of proof. Too often incontrovertible evidence of anosognosia and GD is often dismissed by one minor facet of functionality.
• Although the code is Welf & I C § 5200 in name the process between that and 5150 is identical.  Meaning that many patients will still find themselves discharged after the 14 day hold or the 5150 hold.

 
The next portion of the SB reads:
 
 
The court shall provide notice to the county behavioral health agency and the Office of the Public Conservator and Guardian if the court utilizes that authority.
 

• If Welf & I C § 5200 is truly in pari materia to Welf & I C § 5150 then some would assert that the public guardian is never notified of a 5150 and even if they were they cannot act until the doctor submits the referral for LPS Conservatorship 6 days into the 5250 hold. Should this translate into some order for the Public Guardian to initiate LPS Conservatorship proceedings (T-con) the part “Public Guardian Cannot be Compelled ....” shall address how this contravenes current legal authority.

 
 
(3) If the respondent was timely provided with all of the services and supports required by the CARE plan [reasonable services finding], the fact that the respondent failed to successfully complete their CARE plan, including reasons for that failure, shall be a fact considered by the court in a subsequent hearings under the Lanterman-Petris-Short Act (Welf & I C § 5000 et seq), provided that the LPS Conservatorship hearing occurs withing within six months of the termination of the CARE plan and this shall create a presumption at that hearing that the respondent needs additional intervention beyond the supports and services provided by the CARE plan.
 
 

• Although CARE serves to further bolster the case for LPS Conservatorship, current case law and the reality of LPS litigation renders CARE largely moot. The SB states that “the fact that the respondent failed to successfully complete their CARE plan, including reasons for that failure, shall be a fact considered by LPS court in subsequent hearings”. Although per Welf & I C §5008.2, the historical course of the proposed LPS conservatee's disorder may be considered in determining whether a person is gravely disabled, this is advisory and not directory meaning that a lengthy historical course of failed attempts and periods of GD shall not serve as prima facie evidence of need for LPS Conservatorship. Additionally, willingness to accept treatment or third party assistance [in this case shall refer to CARE participation] is relevant to the determination of grave disability but is not a separate element that need be proven at trial (Conservatorship of K.P. (2021) 11 C5th 695), again weakening the case for relying on CARE participation as evidence which can last up to a year.
• The pivotal issue of relying on CARE participation history shall be the issue that patient’s LPS Conservatorship counsel may raise the issue that conservatee must be presently disabled and not perceived to be gravely disabled in the future. Yes there are exceptions carved out in case law for extending the issues for consideration beyond present grave disability In Conservatorship of Guerrero (1999) 69 Cal.App.4th 442, Conservatorship of Walker (1987) 196 Cal.App.3d 1082 (unpublished), and Conservatorship of Benvenuto (1986) 180 Cal.App.3d 1030 but those are beyond the scope of this discussion as they mostly deal with medication compliance and functionality in the community. The problem with evidencing that patient failed to successfully complete CARE is that patient’s counsel will cite to Conservatorship of Murphy (1982) 134 Cal.App.3d 15 and state that failure to comply with CARE is not evidence of present grave disability or even DS/DO (for that part) and dismiss any nexus to a perceived likelihood of future relapse (despite what mental health professionals may aver otherwise). It will take a rigorous county counsel to counter this claim with case law and evidence from the patient’s file citing all of the above cases as to why failure to participate in CARE is evidence of grave disability.

 
 

• Now given that CARE court shall fall under historical course of illness failure to participate in CARE does satisfy one area of the law: the court investigator for the public guardian must take into consideration of all available alternatives to conservatorship and a recommendation for conservatorship only if no suitable alternatives are available. Welf & I C § 5354. When discussing available alternatives, the public guardian looks for whether the proposed conservatee has failed lower level of placement and CARE court falls into lower levels of placement. Additionally, failure to comply with CARE may fall under the provision that a court “may still determine that the assistance offered, though well-intentioned, is not sufficient to permit the conservatee to survive safely. Conservatorship of Johnson, 235 CA3d at 698. A LPS Conservatorship court could uphold a finding of grave disability in part relying on evidence that despite conservatee's involvement in CARE their condition was severe and required placement in locked psychiatric facility (and despite a finding that the county provided reasonable CARE services at the review hearing).

 
 
 
 
 
 
PUBLIC GUARDIAN CANNOT BE COMPELLED TO INITIATE LPS PROCEEDINGS AND EVEN IF THERE WERE A BYPASS PROVISION ADDED TO THE LEGISLATURE, THIS WILL STILL FAIL TO OVERCOME THIS HURDLE
 
 
 
Now to address the issue of whether CARE will expediate LPS Conservatorship referrals. As relevant to this discussion, Penal Code § 1370, (c)(2) authorizes the criminal court to order the conservatorship investigator to initiate conservatorship proceedings when it appears to the criminal court the defendant is gravely disabled. It is very important to distinguish this from order the public guardian to initiate a temporary conservatorship. This means that
 
 
As a refresher SB reads: (2) The court shall provide notice to the county behavioral health agency and the Office of the Public Conservator and Guardian if the court utilizes that authority.
 
DRC’s concerns that CARE will lead to more LPS Conservatorship cases is misplaced as the current legal authority does not allow courts nor health agencies to direct the public guardian to act in a particular manner.
 

• Under the statutory scheme, the conservatorship officer is the only person authorized to institute a temporary conservatorship and investigation. The state must always consider the patient’s due process right to be free from unnecessary restrictive treatment and placement so they have bestowed this limitation as an integral aspect of the substantive protections in LPS to protect against unwarranted involuntary commitments. Kaplan v. Superior Court (1989) 216 Cal.App.3d 1354, 1358. This forecloses any other party from filing a writ of mandate requesting that the court compel the public guardian initiate a temporary conservatorship.

 

• Although the CARE literature does not expound on the subject of county counsel’s role, CARE has proposed that patient shall be provided counsel be it a patient’s rights group like Jewish Family Service or a public defender while county counsel represented the petitioner for the referring party. Citing Conservatorship of Lee C. (2017) 18 Cal.App.5th 1072, only county counsel representing the public guardian is authorized by statute to prove the proposed conservatee was gravely disabled indicating that county counsel from CARE court would have a limited role given as this call for “such specificity strongly implies that the right to initiate and prosecute a conservatorship proceeding under LPS does not extend to other [courts]”. (Id. at p. 1360.)

 

• The only possible legal theory that would allow CARE to advocate for the public guardian to file for LPS Conservatorship in any meaningful way. Citing County of Los Angeles v Superior Court. (Kennebrew) (2013) 222 CA4th 434, found that a trial court (possibly CARE in the future) does have the authority to review the LPS investigator's reason behind their refusal to seek an LPS conservatorship via mandamus. Generally, mandamus does not serve to compel an agency’s exercise of discretion in a particular manner, but mandamus does permit to compel an agency to perform an official act required by law. Most specifically this shall mean that [said] agency is obligated to act in a “prescribed” manner required by [the LPS Act ] when a given state of facts exists [ideally one that evidence current grave disability]. To prevail on a petition for a writ of mandate to challenge the public guardian’s specific act [to not file for LPS], the moving party must show (1) a clear, present, duty on the part of the public guardian [to file for LPS Conservatorship] and (2) a correlative clear, present, and beneficial right for the public guardian to performance that duty.

 

• How this could possible play out: the public guardian abused its discretion in declining to petition for establishment of a “LPS conservatorship” on the basis that the defendant's earlier-imposed CARE court order was a suitable and less-intrusive alternative to LPS conservatorship [despite a finding by that judge that CARE was insufficient] and/or programs have failed to address and satisfy concerns for public protection and patient stabilization that are the reasoning for said mandated treatment. Counsel would have to argue that (1) the clear, present duty of the conservatorship investigator is to receive the court order for a conservatorship evaluation (Welf & I C §§5200, 5225; Pen C §§1370(c)(3), 1370.01(b)(1)(D)(iii)), and investigate all available alternatives, and recommend for or against conservatorship (Welf & I C §5354). In the case of CARE court, counsel could argue that the public guardian in its comprehensive report failed to fully consider the weight of patient’s failed compliance or progress after a year of CARE court and coupled with the patient’s psychiatric decompensation this shall evidence that there are no least restrictive alternatives to LPS Conservatorship. Counsel would then prove the second prong and show that the correlative clear, present, and beneficial right for the public guardian to file for LPS Conservatorship is that it would be using its involuntary commitment power conferred by the state appropriately to provide stabilization and treatment for [this] truly necessary case where a "gravely disabled" patient has failed all other outcomes [CARE and/or AOT] and would severely languish and die without LPS Conservatorship in place.
• Counsel would need to indicate that the record supports such.
• Additionally counsel could possibly cite to Welf & I C § 5354 that states if the public guardian recommends against conservatorship the [CARE] court may “consider the contents” of the investigator's report in determining abuse of discretion. Alternatively stated this could mean that a county counsel for CARE court could appeal and have the higher court review the report to see if the failed alternatives were properly detailed in the report or if there was just boilerplate language that allowed the public guardian to evade its duty in recommending temporary conservatorship be established. Potentially the reviewing court could render an alternative judgment on the availability of LPS conservatorship even when the conservatorship investigator has recommended against that remedy relying on the abuse of discretion standard.

 

• This is still a largely unsettled area of LPS Conservatorship and few cases exist to lay out clear legal authority that CARE could rely on. This is all legal theory until more information about CARE comes out.

 
 
 
As CARE statute is “fine tuned” policy makers need to construe this body of law in reference to the whole system of prior existing LPS Conservatorship law of which CARE intends to play a part, so that both laws may be harmonized and have a tangible beneficial effect on the severely mentally ill population it purports to serve. Any CARE legislative construction rendering statutory language surplusage or contravening LPS Act intent ought be avoided. Kaplan v. Superior Court (1989) 216 Cal.App.3d 1354, 1356 [265 Cal.Rptr. 408].