comments on the Supreme Court opinion- Conservatorship of E.B.

A few comments on the Supreme Court opinion on Conservatorship of E.B. (2020) 45 Cal.App.5th 986
 
This section shall address some contentions that pro treatment advocates may hold with this opinion’s points. Another will review the case in its entirety. 
 
Most pro treatment advocates aver that LPS and criminal defendants are not similarly situated as the basis for court involvement differs; one being for the punishment and the other for treatment. However, as recent court cases have come out, there is a shifting of some aspects of criminal due process rights being afforded to LPS conservatees.
 
For each appeal, when applying the equal protection analysis, the appellant need not show whether conservatees are similarly situated for all purposes, but whether they are similarly situated for purposes of the [specific area of] law challenged. People v. Valencia (2017) 3 Cal.5th 347, 376. Simply stated, through the process of various appeals small aspects of criminal law may or may not be integrated into LPS practice. It is done issue by issue slowly over a period of years.
 
 
Now turning to this case of whether LPS Conservatees should be considered similarly situated to NGRI’s (which for many pro treatment advocates is too close to criminal defendants) proponents against this argue that the historic purpose of the privilege against being called as a witness has been to assure that the criminal justice system remains accusatorial, not inquisitorial”. LPS Conservatorship hearings are not “accusatorial”. However, many patient right’s groups such as DRC contend that LPS Conservatees face risk of indefinite state sanctioned confinement as LPS Conservatorship can be renewed annually.
 
Conservatorship of Roulet, 23 Cal.3d 219, 152 Cal. Rptr. 425, 590 P.2d 1 (Cal. 1979)
-“an unbroken and indefinite period of state-sanctioned confinement. "The theoretical maximum period of detention is life as successive petitions may be filed”
 
Pro treatment advocates may cite that this almost never happens but in this specific opinion the Supreme court cites to county data that suggests
 
In San Francisco, for example, almost 38 percent of LPS conservatorships, excluding Murphy conservatorships, had been extended for 10 years or more as of December 2018. (San Francisco Analyst’s Report, supra, at p. A-9.) An additional 23 percent had been extended from five to 10 years. (Ibid.)
 
Pro treatment advocates may rebut and state that legal authority ought not base opinions that have binding effects across all counties on just one county’s data. They could possibly state that any extension of criminal privileges to an area outside the criminal justice system, LPS Conservatorship, would contravene both the language and purpose of the privilege as the privilege was intended to be used in the scope of the original legal area it appears in.
 
However, the Supreme Court had decided on this and stated that “Thus, in practice, traditional LPS conservatorships can impose substantially the same restraint on liberty as involuntary commitments connected to criminal proceedings”. Because we cannot change their opinions on this issue at this time, pro treatment advocates must turn to the second prong; showing whether harmless error applies.
 
There are many nuances as to whether Federal harmless error standard applies under Chapman v. California (1967) 386 U.S. 18, 23–24 or state law harmless error standards under People v. Watson (1956) 46 Cal.2d 818, 837 applies. However, for most LPS appeals they rely on People v. Watson which weighs the evidence against the error made and determines whether it was reasonably probable the appellant would have obtained a more favorable outcome had the error not occurred.
 
 
Treatment advocates should be aware that showing that in the totality of the circumstances, the conservatee’s testimony would not have materially affected the outcome of the trial as the doctor’s testimony and family statements evidence a long history of grave disability, noncompliance, and repeat hospitalizations. In the original trial, the conservatee in this case was gravely disabled enough that both the appellate court and the trial court found that the harmless error standard was met as the conservatee would have been found gravely disabled in light of his compelled testimony. However, the case was heard all the way up to the CA supreme court as it directly contravened Conservatorship of Bryan S. (2019) 42 Cal.App.5th 190, 19 which had been the primary authority on this subject matter until now.
 
Also other issues may be heard on appeal on the basis that despite LPS Conservatorship being terminated by the time the appeal is heard, the issue at hand is capable of repetition yet evad[es] review.