There has been some news about non LPS facilities initiating and detaining patients under 5150 holds. Given that each county does things differently this information mainly applies to San Diego.
If a person is admitted to a non-LPS facility for medical treatment (not psychiatric treatment), then that person is no longer on a §5150. The designated person who wrote the §5150 may want to document why the §5150 process was not completed. The non-LPS facility does not have the ability to detain the person for care. If a person has been placed on a §5150 and has been detained and transported to a non-LPS facility, is not admitted to that non-LPS facility, and is then subsequently transported to an LPS facility, the §5150 process has been completed.
While not of controlling importance, punctuation is part of a statute and should be considered in its interpretation. § 5150 is written to lay out two separate criterion for detainment and evaluation. The use of the word “or,” in a statute, is to designate separate, disjunctive categories disjunctive In re E.A., 24 Cal. App. 5th 648, 234 Cal. Rptr. 3d 346 (2018). Welf & I C § 5150 code is written in the disjunctive meaning that the clauses separated by an “or” do not take precedent over the other.
Now looking at the code which mandates that:
When a person, as a result of a mental health disorder, is a danger to others, or to himself or herself, or gravely disabled, a peace officer, professional person in charge of a facility designated by the county for evaluation and treatment… upon probable cause, take… the person into custody for a period of up to 72 hours for assessment, evaluation, and crisis intervention, or placement for evaluation and treatment in a facility designated by the county for evaluation and treatment and approved by the State Department of Health Care Services.
Some advocates may see this phrasing to say either or. The evaluating person may detain them into custody for assessment, evaluation, and crisis intervention or they placement in an LPS facility designated for treatment and evaluation.
If the statute is read in this manner no case law currently answers the question of what "custody" means. It is unclear whether § 5150 reflects a legislative intent to have a broad applications in regards to LPS vs non-LPS facilities. The statute may not necessarily mandate an LPS facility, but most counties require detainment at a designated facility.
To examine this problem further San Diego county’s policy regarding LPS facilities.
Designated Facility vs. Non Designated Facility
The designated person is required to place the person in custody “in a facility designated by the county for evaluation and treatment and approved by the State Department of Health Care Services.” Welfare and Institutions Code §5150(a). Such facilities are frequently referred to as “LPS designated facilities” or “LPS facilities.” If a person has been placed on a §5150 and has been detained and transported to a facility that is not LPS designated (a non-LPS facility), the §5150 process has not been completed. Individuals brought to a non-LPS facility on a §5150 should still be assessed and transferred to an appropriate facility, as necessary.
The other issue that arises out of detainment at non LPS facilities is the use of back to back 5150 holds. By statute patients are not afforded the right to court appointed counsel until their 14 day hold in which they may petition the court for writ of habeas corpus. The law does technically allow for a writ during the 72 hour detainment period, but due to time constraints it is never implemented. The purpose of a 14 day hold is to provide the patient with the right to due process (1) a right to notice and (2) a right to be heard. The patients must be afforded a hearing where they can challenge the sufficiency of the evidence mandating an involuntary hold. Without this safeguard under Doe v. Gallinot patients could be held for extended periods of time without judicial review.
Guardian Ad Litems for LPS Conservatees
LPS Conservatorship follows probate procedures with certain exceptions. However, the probate code is silent on the use of GALs for LPS Conservatees who may appear to be so impaired they need a GAL.
Probate Code §1003(a)(2) provides for the appointment of a guardian ad litem for an incapacitated person "if the court determines that representation of the interest otherwise would be inadequate”.
Probate code does not elaborate much more on GALs so for the sake of this discussion In re Samuel A., 69 Cal. App. 5th 67, 284 Cal. Rptr. 3d 151 (2021) shall be the guiding authority.
In Samuel A., the juvenile court mandated that parents who are unable to meaningfully understand and assist their counsel due to mentally incompetency must appear by guardian ad litem. The test for mental competence for appointment of guardian ad litem is (1) whether the parent has the capacity to understand the nature or consequences of the proceeding and (2) whether they were able to assist counsel in preparing the case.
Under this court a parent may be found to lack capacity if they (1) do not understand the nature and purpose of the proceeding or (2) are unable to assist counsel in a rational manner in that they can communicate in a manner that counsel can understand at a general level. The parent need not show that they understand the complex details of dependency law; only that they are able to understand the general legal principals and are able to make informed reasonable decisions. GALs are reserved for when counsel deems it impossible to have a competent intelligible kind of a legal conversation with their client as a result of a mental health disorder.
Should the court consider appointing a GAL for a parent, it must conduct an evidentiary hearing to determine whether there is sufficient evidence of incompetence per the above standards. The law appears to be silent on this burden of proof in that it only clarifies that it should be “an informal hearing” In re Samuel A., 69 Cal. App. 5th 67, 284 Cal. Rptr. 3d 151 (2021).
Legal authority mandates this evidentiary hearing because dependency proceedings can result in termination of parental rights which many regard as the “death penalty” for parents as an “order terminating parental rights is “widely recognized as ranking ‘among the most severe forms of state action” even if it is in the best interest of the child. Transferring direction and control of the client’s litigation through appointment of a GAL jeopardizes the parent's interests and due process rights in such an important proceeding. The court rightfully notes that the parent’s right to actively participate in their dependency case should not be disregarded for the sake of expediency.
Now turning to LPS Conservatorship, GAL appointment may be considered for patients should they be so incapacitated that they are unable to meaningfully communicate with their counsel due to psychosis.
A Note: Most patients once they have reached the point of a P-con hearing, they have been stabilized to the point where they do not need a GAL. Again, counsel needs to remember that GALs are for severely incapacitated clients not clients who are difficult to work with. If counsel finds themselves working with a difficult client then they should consult with a supervisor to determine if new counsel needs to be appointed or to gather more tips for communicating.
Should an LPS client need a guardian ad litem, LPS Conservatorship also carries serious risks like parents in dependency proceedings as LPS Conservatorship confers the loss of civil liberties. The patient faces “the theoretical maximum period of detention [of] life as successive [LPS] petitions may be filed. (Conservatorship of Roulet (1979) 23 Cal.3d 219, 223-224.). Additionally, their right to consent to treatment and placement are stripped and given to the public conservator. Because these rights are at stake, the appointment of a GAL and thus the deprivation of conservatee from interacting directly with their counsel should be afforded the same legal safeguards as in dependency.
Perhaps given the special nature of LPS Conservatorship hearings, conservatee’s competence should be measured in a similar way to Riese patients.
Before making determination that involuntarily committed mental health patients lack capacity to either consent or refuse medical treatment with antipsychotic drugs, courts must hold an evidentiary hearing to determine whether they are (1) able to understand the information presented to them at a basic level, (2) knowingly and intelligently reasonably act upon that information, (3) whether patient is aware of his situation/mental illness, (4) is able to understand the general benefits and risks of certain legal decisions, and (5) be able to participate in legal communication and planning with their case by means of rational thought processes.
When evaluating for rational thought process the court should ensure that the patient is making decisions that are not driven by delusional or hallucinatory perceptions and the patient’s ultimate decision to behind a legal decision should stem from a rational basis.
The court for LPS clients should ensure that any determination of incapacity must be supported by the clear and convincing evidence standard.
Counsel for LPS conservatees may feel that their clients are similar to those in Samuel A. but like the court notes in Samuel A., difficult or belligerent parents are not mentally ill and do not need a GAL. The court notes the important “without more” clause in that counsel and the trial court need a finding that shows mental incompetence before appointing a GAL no matter how “difficult” the client. Many mental health patients also present in a similar way as they find themselves confused and angry at the legal process. They may not have hallucinations or delusions but still present as angry and difficult to work with given the overwhelming nature of court and quickness of LPS hearings.
Using the same guidelines used in Riese the court will better be able to determine difficult behaviour from that stemming from mental illness alone. The patients may be stabilized from time in the hospital so they will not be as severely impaired. They may still need a conservator but this does not mean they cannot communicate with their counsel. Thus the court should not curtail the patient’s right to actively participate in their LPS Conservatorship case for the sake of expediency even if the mental health docket can run full most days.
Juvenile Dependency and