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Welf. & Inst. Code, § 5278 states that individuals authorized to detain for 72-hour holds shall not be held either criminally or civilly liable for exercising this authority in accordance with the law. However, Jacobs v. Grossmont Hospital (2003) 108 Cal.App.4th 69, 71 dissects the extent of this protection. The court in Jacobs further concluded that Welf. & Inst. Code, § 5278 does not confer immunity for negligent or other wrongful conduct that may occur in the evaluation or treatment of involuntarily detained patients. The Jacobs court states in its opinion that Welf. & Inst. Code § 5278 means precisely what it says it means and precludes med malpractice liability for [standard allegations of] battery, false imprisonment, detention and treatment without consent, or for general medical malpractice insofar that the detention under Welf. & Inst. Code, § 5150 was executed in accordance with the law. This moves us into the next issue which determines the standard of review for such liability In Gonzalez v. Paradise Valley Hospital (2003) 111 Cal.App.4th 735, 736, the court clarified that the scope of immunity afforded under Welf. & Inst. Code § 5278 is a legal question best answered by “rules of statutory construction”. Julian v. Mission Community Hospital (2017) 11 Cal.App.5th 360, 376 further clarified that the conduct protected under § 5278 is confined to the exercise of statutory authority to detain, evaluate, and treat against the patient's wishes, and does not extend to the manner in which the 5150 evaluation and treatment are carried out. In other words, this court opined that liability arising from negligence in 5150 evaluation or treatment is not the same liability covered under the umbrella of § 5278 “exercise of this authority in accordance with the law”. We now move into the issue of statutory interpretation. The fundamental rule of statutory construction is that a court should ascertain the intent of the California legislature so as to effectuate the purpose of the law. In re Marilyn H. (1993) 5 Cal.4th 295, 298. Moreover, every statute should be construed with reference to the whole system of law of which it is a part so that all may be harmonized and have effect. A court must use the construction that comports most closely with the intent of LPS legislature, with a view to promoting rather than defeating the general purpose of the law, and strive to avoid an interpretation that would lead to absurd consequences. Thus the intent of the LPS act is to promote treatment of the patient and protection of the public. This shall further apply to Welf. & Inst. Code, § 5278 and by allowing § 5278 to provide immunity over negligent 5150 evaluations that fall below the standards expected of reasonably competent medical professionals in the field of psychiatry contravenes the intent of the LPS act. Although the Jacobs court does not address the issue of statutory interpretation, it does opine that “however, the court does not interpret case law to insulate from liability negligent medical treatment that falls below the standard of professional care” it does speak to the clinician providing the assessment and evaluation needs to act that does not fall below the standard of professional care. This case although not controlling may be persuasive in showing that the intent of the LPS act is to promote treatment rather than insulate hospitals and physicians from overly cautious reticence toward treatment. In making a case, counsel would have to argue that they are not opining that the hospital is liable for the patient’s behaviour that occurred before and during the 5150 but rather that the physician misapplied the 5150 criteria and thusly fell below the standard of professional care and thusly is not insulated from liability otherwise covered under § 5278. The law excuses the physician from civil suits regarding false imprisonment not negligent treatment. For example counsel could directly reference Welf. & Inst. Code, § 5150.05, subd. (a) and Welf. & Inst. Code, § 5150, subd. (b): “in determining whether there is probable cause, a person authorized to make that determination may consider “available relevant information about the historical course of the person's mental disorder” and “they shall not be limited to consideration of the danger of imminent harm”. They could cite to the code and create the nexus to the fact that the physician failed to consider these factors despite plenty of evidence. One standard used by appellate courts when arguing a case, counsel needs to show that a different outcome would have been achieved had this error not been made (standards on appeal) to win a reversal. In some form counsel could show that patient would have been 5150ed and benefitted from it had physician considered the excluded evidence. [more updates soon] In proving that a doctor fell below the standard of professional care may be hard to prove as the courts could be deferential to the treating doctor. However, if counsel can obtain the hospital documents via the Business Records exception [cite], they can show through via nursing notes, MD written statements, and relative documents submitted to the patient file that the assessing physician was aware of the patient “meeting” criteria for ongoing grave disability, harm to oneself through neglect or inability to care for oneself, lack of third party assistance, and lack of insight into her mental illness, and they did not act within the current standard of psychiatric care given their access to the psychiatric notes and statements.
1 Comment
This is a highly controversial issue in dependency courts. The courts when involved with parents who have SMI consider if the parent's disability render the parent incapable of utilizing reunification services. If court believe so then services can denied under Welf & I C 361.5 (b)(2). If not the court may offer services like medication management, psychological assessment, therapy, and other narrowly tailored services for the parent. This is deceptively simple. Because the child's best interest is the prevailing standard in dependency litigation, minor's counsel and county counsel will make decisions and recommendations to the court even if those recommendations are misplaced due to a lack of knowledge of mental illness. Often the courts deem the time needed for psychiatric stabilization as too lengthy as 6 months to stabilize: "while this may not seem a long period of time to an adult, it can be a lifetime to a young child. Childhood does not wait for the parent to become adequate". In re Marilyn H. (1993) 5 Cal.4th 295, 310. Parents are held to a high standard and when they re-convene for review hearings or CFTs, a parent's temporary relapse could lead to a recommendation by the department for termination of services and a setting of a .26 hearing much to parents' dismay and outrage. In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1787 is a case where a mentally ill parent who was under LPS conservatorship was able to utilize the services offered and reunify with her two children. However, this case illustrates that parents with mental illness face larger hurdles than others. In this case the appellate court opined that a juvenile court must first consider the circumstances of the mother, who despite being hospitalized for SMI for most of her reunification period, had still substantially complied with her case plan and demonstrated that she could keep her children relatively safe and cared for. The trial court had opined that the mother's mental illness was too "risky" to allow return home and terminated services and set the matter for a .26 hearing to terminate her rights to her children. However, on appeal, the reviewing court found that "the elaborate statutory scheme governing dependency proceedings nor dependency case law deprives the trial court of exercising its discretion to accommodate the special needs of a mother who has mental illness given her unusual circumstances". Simply stated, mother's counsel fought to have evidence of her stability, compliance, and witness testimony preserved in the record to overcome the instant court's "bias" against SMI mothers. Years back, courts operated under the presumption that harm to the child could be presumed from the mere presence of parental mental illness and assumed the children would be "infected". There have been some improvement as you can see with In re Elizabeth R, in which courts must lay a proper basis for a dispositional ruling based on expert testimony that cites to specific examples of how SMI had and would adversely affect the child health and jeopardize the child's safety. Courts should strive to reject any inferences or stereotypes than can be drawn from a labeled SMI diagnosis. The mere fact a mother is labelled bipolar/schizophrenic really tells the court little about her anticipated behavior and its effect on her children. The way a court should use this crucial and yet nebulous SMI diagnosis in ruling on the merits should be only a starting point, not its conclusion. Rather than jumping/rubbing stamping a specific jurisdiction/disposition/ or .26 termination order because the mother is SMI, the diagnosis should guide the court and department in an in-depth examination of her psychiatric history, her current presentation, her previous response to medication therapy, past compliance, and the potential benefits for future therapy with a focus on what effects her behavior will have on her children.
There are many times parents with SMI are given barebones services with no real follow up plan or assistance traveling to get them. Counsel in handling cases with SMI parents need to be aware that services are deemed unreasonable when the court orders limited visitation for parents in a IMD and/or provide no narrowly tailored services to address the parent’s mental disabilities. The converse also applies where the department will unnecessarily provide SMI extra programs that place extra burden on their work schedule. It is error to delegate to a mental health program the sole discretion to decide the length services for a SMI parent. This determination regarding when a parent has satisfactorily completed the mental health services portion of their case plan must be made by the juvenile court. In re Daniel B. (2014) 231 Cal.App.4th 663, 665. Mental health services can also be unreasonable when DCFS notifies a SMI parent that they are generally enrolled in programs but later asserts detriment based on a parent's failure to enroll in a single specific program. The department must maintain adequate contact with MH service providers and accurately to inform the juvenile court and parent of their sufficiency of the enrolled programs needed to meet the case plan's requirements. Given that parents with SMI can struggle to keep track of all of these programs while combatting symptoms of psychosis, they should be given some leeway by the court. These scenarios evidence the bias against SMI parents in the system and yes many SMI parents attract the attention of the department even when their conduct may not necessarily be actions that make their child come within the jurisdiction of the juvenile court per Welf & I C § 300 subdivision (b). So courts hold that, in the context of the LPS Act, the term "gravely disabled" is sufficiently precise to exclude unusual or nonconformist lifestyles, in that it connotes an inability or refusal on the part of the conservatee to care for basic personal needs of food, clothing, or shelter, and that it is not an unconstitutionally vague and overbroad standard. Additionally, this standard has been drafted so that a conservatee presumed to be a person of common intelligence can understand the purpose of determining the sufficiency of this statute. Conservatorship of Chambers (1977) 71 Cal.App.3d 277, 279 [139 Cal.Rptr. 357] This reasonableness standard ensures that a statute is written in clear enough terms so that a person of common intelligence mustn't need to guess at its meaning and differ as to its application. If a statute is unconstitutionally vague, it essentially violates the first essential of due process of law. Now the courts in ruling on these statutes, rest upon the presumption that these statutes employ words or (eve. phrases with technical special meanings) that have well enough known meaning to enable those who rely on interpreting said statutes are able to correctly apply them in various settings. There are two points of contention that I have with this interpretation of grave disability and the findings in the Chambers court. Firstly the Chambers court at the time stated that it was sufficiently precise to exclude unusual or nonconformist lifestyles. However, we have had several cases that have had to clarify the "nonconformist" lifestyles clause including Conservatorship of Smith (1986) 187 Cal.App.3d 903, 905 which clarified that bizarre or eccentric behavior, even if it interfered with normal intercourse with society, does not warrant conservatorship except when it renders patient helpless to fend for herself/ destroys ability to meet basic needs. Only then does the interest of the state override their individual liberty interests and GD can be found. Other cases are in pari materia indicating that the Chambers court's assertion about being "sufficiently precise" is misplaced. Yes case law serves to clarify the legislature's intent but with the amount of case law surround this concept of GD indicates that Conservatorship of Chambers should be reconsidered as "good law". The second contention is with the fact although GD standard as proscribed under the LPS Act and Welf. & Inst. Code §§ 5008(h) requires a causal nexus between a specifically defined and diagnosed mental disorder and related inability to care for one's basic personal needs, the standard for finding grave disability is the highest standard offered by the law; proof beyond a reasonable doubt, given that a finding of grave disability implicates serious personal liberty rights & the "good name of the individual". Therefore courts have found that the safeguard of proof beyond a reasonable doubt is required to ensure patients are not unduly adjudicated gravely disabled. Conservatorship of Roulet (1979) 23 Cal.3d 219, 221 [152 Cal.Rptr. 425, 590 P.2d 1]. In my opinion this controverts this notion of the aforementioned easy to prove "casual link" between a mental illness and inability to care for ones needs. Many practitioners in the mental health field will attest to the difficultly of proving GD due to this high standard. This trickles down to non conservatorship proceedings such as 5150s and 5250s where the burden of proof is "lower" but still hospitals and doctors will hesitate to "cosign" on this nexus out of fear of being wrong or adding more legal work down the road. At the LPS conservatorship hearing phase this notion of GD not being unconstitutionally vague or overly broad is lost is in this overarching fear that a finding of GD implicates "an inevitable unbroken and indefinite period of state-sanctioned confinement where a theoretical maximum period of [LPS conservatorships] is lifelong as successive petitions may be filed . . . ." Conservatorship of Roulet (1979) 23 Cal.3d 219, 223-224. No matter how much training we do on mental health laws, anosognosia, and the consequence of inappropriate discharge (revolving door and subsequent untimely death), until this concept of grave disability standard is completely reframed as best interest of the patient standard and professionals move away from similarly situating mental health clients with criminal defendants we shall not see much progress with improving professionals understanding and correctly applying the grave disability standard. So my proposal has always been to align mental health patients with children in the dependency system. When it comes to minors the prevailing standard is the best interest of the child. Dependency proceedings are civil in nature (like LPS/MH) and said proceedings and court rules are designed not to prosecute a parent, but rather to protect the child. In re Malinda S., 51 Cal. 3d 368, 372. This child's best interest standard is the sine qua non of most legal process governing dependency issues and language as you will see adheres to this precedent. The import of the LPS act (albeit often in name only), like dependency, is to "end the inappropriate, indefinite, and involuntary commitment of persons with mental health disorders" and provide treatment and protection of the public (and patient). Prosecution of the mentally ill and punishment is not the end goal of LPS. However, because this intent of the LPS act is lost in the fight for procedural safeguards for the patient, it has become more aligned to criminal proceedings whereas dependency has relatively stayed close to its intent of protecting and safeguarding the minor's best interests. If we reimagine LPS and grave disability within the same framework of "best interest" rather than prosecution, then we may observe better deference to the grave disability over misplaced fear of indefinite commitment of conservatees. For example both dependency and LPS only require a single criterion to be met in order to initiate court proceedings to protect the patient/minor. In dependency the juvenile court's jurisdiction may rest on a single allegation under Welf. & Inst.Code § 300 et seq in order safeguard the minor's physical and mental safety. We have similar rules for LPS (GD can be based on an inability to provide for food, clothing, or shelter; it does not require a finding that a pt cannot provide for all three Welf. & Inst.Code § 5008(h)(1)(A). But because the best interest of the child is the prevailing standard over a parents civil liberties [citation], dependency culture is far more favourable to the "best interest" and the legal language reflects such: "As long as there is "one unassailable jurisdictional finding, it is immaterial that the evidence may be insufficient to support another basis". In the same vein many treatment advocates observe that a patient's noncompliance with treatment and medication has to border on so extreme that they will perish before a court will interfere with more serious legal remedies. The converse is true in dependency in which the best interest of the child is so important that Welf. & Inst. Code § 364 states that failure of a parent to participate regularly in any court ordered treatment program shall constitute prima facie evidence that the [dangerous] conditions which justified initial assumption of jurisdiction still exist and that continued [court] supervision is necessary. Imagine if we had this for CARE court or AOT court. We do not have such language in AOT or CARE provisions as the courts in these areas shy away from any punitive measures. SB 1338 subdivisions (4) and (5) state: The patient's failure to comply with an order shall not result in a penalty outside of this section, including, but not limited to, contempt or a failure to appear. The respondent’s failure to comply with a medication order shall not result in any penalty. Drawing from this comparison of statutes if we reflected the same concern in LPS and CARE proceedings then perhaps the legal language surrounding grave disability petitions, historical course of illness, and LPS conservatorship legislative frameworks would shift so that proving grave disability and need for higher levels of care would not be such a tall order.
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Juvenile Dependency and
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