LPS conservatorship legal review: closed hearings

An issue that I would like to address is the openness of LPS conservatorship proceedings. Sorenson v Superior Court. Almost all LPS conservatorship proceedings are not made public. The hearings and the documents are closed to the public and need a court order to be viewed if not public conservator worker. 


Sorenson v Superior Court (2013) 219 CA 4th 409 Court of Appeals of Calif. Sixth district addresses this issue. 
 
LPS Jury Trial Is Not an "Ordinary" Civil Proceeding
One of the first issues that is brought up is LPS conservatorships fall under the definition of an ordinary court proceeding. that can be subject to public scrutiny. The court argues that LPS conservatorship hearings are different than regular court hearings in a "person's commitment under the LPS Act is a "special proceeding" that is a creature of statute, rather than an "ordinary civil proceeding[]."
 
Due to the lack of history the court also notes that there is little helpful data concerning whether LPS trials have a tradition of openness. Despite this the court continues to state that History and Utility Does Not Suggest Right of Access meaning that just because laws surrounding LPS hearings openness are not written in stone does not mean they are to be subject to the same legal scrutiny that other facets of the law are.
 

Another factor that the court considers is the fact that allowing public viewing of hearings "provid[es] a means ... by which citizens scrutinize and `check' the use and possible abuse of judicial power" (NBC Subsidiary, supra, 20 Cal.4th at p. 1202) The court draws from issues surrounding dependency court (Cf. San Bernardino County DPSS, supra, 232 Cal.App.3d at p. 202 [access to juvenile dependency proceedings "may also serve to check judicial abuse"].)
 
 
The court does agree that “the fact that access to LPS proceedings may serve as a theoretical “check” [with respect to] the use and possible abuse of judicial power" (ibid.), of itself, is insufficient to support a conclusion that there is a constitutional right to public access of special proceedings such as LPS conservatorships.” The court finds that the breach of medical privacy laws, stigma, and special classification of proceeding outweigh any benefit that public checks and balances would provide.


Perhaps the biggest argument that the court speaks of is the issue of the privacy laws surrounding medical care and involuntary commitment. "Confidentiality is a significant issue in all LPS conservatorship proceedings. In at least one county, the entire file is confidential, the court calendar is not available to the public, family members can receive notice of the hearing only if the patient consents and can attend the hearing only at the patient's request. In some counties, the conservatorship investigator's report and doctor's declarations are confidential, but the petition and calendar are available to the public, although the court may close the hearing. In other counties, the report and declaration are confidential, and the matter is heard in open court unless it is a contested hearing, which will be closed to the general public. In still other counties, even contested hearings are open to the public, unless good cause is shown to close them on request." (2 Cal. Conservatorship Practice (Cont.Ed.Bar 2012) Conservatorships for the Gravely Disabled Under the LPS Act, § 23.47, pp. 1340-1341 (rev. 5/13).)
Should the public be allowed to sit in hearings, the patients’ rights to confidentiality would be breached and this breach in privacy would be too grievous.
 
 
Another point the court addresses is whether the public would benefit from being able to sit in on hearings. Public education is an issue as the court cites that public “Access to LPS conservatorship proceedings would be beneficial, to the extent that it would inform members of the public of ongoing mental health issues in their communities” But may come at the cost of the patient’s dignity.” The court notes that "[G]rave disability proceedings carry special threats to reputation. A finding of grave disability is equivalent to a finding that a person is unable to feed, clothe or house himself [or herself] because of a mental disorder. (§ 5008, subd. (h)(1).)" (Conservatorship of Roulet, supra, 23 Cal.3d at p. 229.) It also notes that conservatees who are "`confined in mental institutions are stigmatized as sick and abnormal during confinement and, in some cases, even after release.'" (Conservatorship of Susan T., supra, 8 Cal.4th at p. 1023. The court finds that if LPS conservatorship hearings and trials were made to be public proceedings this decision would cause involuntary conservatees to suffer embarrassment and stigma of public scrutiny as a result of their personal psychiatric records being made public. (Cf. In re S. W., supra, 79 Cal.App.3d at p. 721 [one of purposes of § 5328 is to avoid "embarrassment" resulting from "undesired publicity" through disclosure of LPS treatment records].) The court found in the disposition that despite the language in section Welf and Institutions Code section 5118, in context with section 5328 and other provisions of the LPS Act —that all LPS proceedings, including court trials, jury trials and other hearings under the Act, are presumptively nonpublic.

I have two issues with this.....
first with having a jury trial, would some members of the public be knowledgeable about the conservatee's mental fitness? They would be there for the trial and presentation of the facts and evidence. Even though there would be voir dire, this does not limit the jury to medical professionals etc. Rather the patient's counsel would seek to dismiss any juror that might have extensive psychiatric knowledge or psychologist who has a knowledge of involuntary commitment. 

Secondly, should LPS hearings be closed to the public how would future lawyers and students learn how the hearings proceed. How would they know what really happens in the courtroom. There is a large difference between reading case law and seeing it play out in real life. 

I do agree with the idea of public checks and balances. I do understand the argument that laypeople would not understand the legal terminology and procedures and make false assumptions based on incorrect information. It might prevent judges from becoming "rubber stamps" as seen in dependency court. The less of those the better for all.

But the court does make valid points surrounding the patient's rights.