LPS MENTAL HEALTH CONSERVATORSHIP

LPS conservatorship
and
​juvenile dependency updates

  • LPS CONSERVATORSHIPS FOR THE GRAVELY DISABLED
    • ABOUT YOURS TRULY
  • LPS Conservatorship Case Law
    • THE ABSOLUTE STATE OF THE COURT OF APPEALS
    • Conservatorship of Isaac O- court report omission and jurisdiction
    • Disparate Treatment- Conservatorship of E.B
    • Conservatorship of KW- hearsay and jury instructions
    • Peremptory Challenges and Conservatorship of Gordon
    • Conservatorship of Sorenson privacy rights and LPS matters
    • Imposition of special disabilities- Conservatorship of Walker
    • Continuing Jurisdiction/Jury Instruction and Conservatorship of McKeown
    • Hearsay and conservatorship of Manton
    • Conservatorship of the Person of S.A.
    • Writ of Habeas Corpus burden of proof
    • Conservatorship of Roulet- burden of proof
    • Special disabilities and due process- Conservatorship of K.G and Donna H.
    • Conservatorship of Davis and Third party assistance
    • Marsden hearings/ due process Conservatorship of David
    • Conservatorship of Torres and admissibility
    • Jury Instruction and Conservatorship of Law
    • Conservatorship of George H- jury instruction
    • Public Conservator's Exclusive Power to Initiate LPS Conservatorship Kaplan v. Superior Court
    • Constitutionality of LPS conservatorship- Conservatorship of Delay
    • Investigation report- Conservatorship of Ivey
    • Conservatorship of Jesse G
    • Grave Disability Standard and Jury trial notice Conservatorship of Benvenuto
    • Conservatorship of Kennebrew vs Conservatorship of Karriker
    • Jury Trial Delays - Conservatorship of Joanne R.
    • Conservatorship of Hofferber- criminal incompetence and LPS
    • "Discretionary abuse" Conservatorship of G.H.
    • In re Elizabeth R- LPS Conserved Parent with a concurrent dependency case
    • Conservatorship of C.O. - Waiver of Jury Trial
    • Conservatorship of Smith and strange behaviour
    • Jury Trials- ​Conservatorship of Jose B
    • Conservatorship of Baber and Double jeopardy and third party evidence >
      • WIP- Conservatorship of Tedesco
      • Conservatorship of Symington (1989)
      • Effective Counsel
      • Faretta and Marsden
      • Exceptions: Third Party Evidence
      • Exclusionary Rule WIP
      • Fifth Amendment Rights
  • LPS Conservatorship Court Overview
    • Public Conservator >
      • Los Angeles Public Guardian
      • CONSERVATORSHIP INVESTIGATION REPORT
      • CAREER >
        • Continuing Education
        • Public Conservator County Numbers '16
        • San Diego Public Conservator '19
      • LPS Conservatorship for Dependent Parents and Minors
    • WHY ARE LPS CONSERVATORSHIP AND PROBATE CONSERVATORSHIPS DIFFERENT
    • Court of Appeals >
      • In re Ben C- Wende Brief no issue writ
    • Trial Court Transcript
    • Conservatorship Legal Documents
    • INITIAL INVOLUNTARY PROCEEDINGS >
      • Grave Disability >
        • Present Grave Disability
      • Venue
      • Conservator's Bond
      • When the Conservatee Goes AWOL
      • Involuntary Commitment
      • Conservatorship Factors
      • Riese Hearing >
        • Riese Hearing
      • Supplemental Security Income/ SSI >
        • Applying for SSI
        • Documents for SSI
        • Process and Appeal
        • Award Letter
        • Rep Payee
        • SSI Amounts 2018/2019
  • For LPS Conservatees
    • RIGHT TO APPEAR IN COURT
    • JUDICIAL REVIEW >
      • WRIT OF HABEAS CORPUS
    • NOTICE
    • MEDICATION
    • PLAN OF CARE IF DISCHARGED
    • RIGHT TO COUNSEL
  • BUILDING A STRONG CASE FOR CONSERVATORSHIP
    • POWERS OF CONSERVATOR >
      • Placement Powers
      • Medication powers
    • WHY ONLY THE PUBLIC CONSERVATOR IS ALLOWED TO FILE FOR LPS CONSERVATORSHIP
    • SERVING AS CONSERVATOR
    • DSM V DIAGNOSIS LIMITS
    • CONSERVATEE INTERVIEW
    • HISTORY OF DECOMPENSATION AND LACK OF INSIGHT
    • WRAPPING IT ALL TOGETHER AND CREATING THE NEXUS BETWEEN SYMPTOMS, HISTORY, COMPLIANCE, THIRD PARTY ASSISTANCE TO PROOF OF CURRENT GRAVE DISABILITY BEYOND A REASONABLE DOUBT
  • MAKING SENSE OF THE RULES OF EVIDENCE AND PRESENTING YOUR EVIDENCE AT TRIAL
  • JUVENILE DEPENDENCY
    • FAST TRACK DEPENDENCY
    • DEPENDENCY APPEALS
    • DETENTION
    • JURISDICTION DISPOSITION (JURIS/DISPO)
    • §366.26 Hearing: Selection and Implementation
    • 730 Evaluators
    • Case Plan
  • New Updates
    • Right to Choose

9/22/2022

Dissecting Welf & IC § 5278

1 Comment

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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.
 
 
 
 
 
 

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Dr. Michael Stewart Jr. link
10/14/2022 03:55:09

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    Juvenile Dependency and
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510 S Vermont Ave, 14th Floor 
Los Angeles, California 90020 
Phone: LPS (213) 974-0527
(213) 974- 0407
Los Angeles Mental Health Court 
5925 Hollywood Blvd 
Los Angeles, California 90028 
Fax: (442) 247-3972


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1100 Union St, Dept 1902
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San Diego, California 92101 
Phone: (619) 844-2700



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Office of the Public Conservator

5560 Overland Ave Ste 130
San Diego, California 92123
Phone: (858) 694-3500 ext 2
© 2017 LPS Conserved   ALL RIGHTS RESERVED.
  • LPS CONSERVATORSHIPS FOR THE GRAVELY DISABLED
    • ABOUT YOURS TRULY
  • LPS Conservatorship Case Law
    • THE ABSOLUTE STATE OF THE COURT OF APPEALS
    • Conservatorship of Isaac O- court report omission and jurisdiction
    • Disparate Treatment- Conservatorship of E.B
    • Conservatorship of KW- hearsay and jury instructions
    • Peremptory Challenges and Conservatorship of Gordon
    • Conservatorship of Sorenson privacy rights and LPS matters
    • Imposition of special disabilities- Conservatorship of Walker
    • Continuing Jurisdiction/Jury Instruction and Conservatorship of McKeown
    • Hearsay and conservatorship of Manton
    • Conservatorship of the Person of S.A.
    • Writ of Habeas Corpus burden of proof
    • Conservatorship of Roulet- burden of proof
    • Special disabilities and due process- Conservatorship of K.G and Donna H.
    • Conservatorship of Davis and Third party assistance
    • Marsden hearings/ due process Conservatorship of David
    • Conservatorship of Torres and admissibility
    • Jury Instruction and Conservatorship of Law
    • Conservatorship of George H- jury instruction
    • Public Conservator's Exclusive Power to Initiate LPS Conservatorship Kaplan v. Superior Court
    • Constitutionality of LPS conservatorship- Conservatorship of Delay
    • Investigation report- Conservatorship of Ivey
    • Conservatorship of Jesse G
    • Grave Disability Standard and Jury trial notice Conservatorship of Benvenuto
    • Conservatorship of Kennebrew vs Conservatorship of Karriker
    • Jury Trial Delays - Conservatorship of Joanne R.
    • Conservatorship of Hofferber- criminal incompetence and LPS
    • "Discretionary abuse" Conservatorship of G.H.
    • In re Elizabeth R- LPS Conserved Parent with a concurrent dependency case
    • Conservatorship of C.O. - Waiver of Jury Trial
    • Conservatorship of Smith and strange behaviour
    • Jury Trials- ​Conservatorship of Jose B
    • Conservatorship of Baber and Double jeopardy and third party evidence >
      • WIP- Conservatorship of Tedesco
      • Conservatorship of Symington (1989)
      • Effective Counsel
      • Faretta and Marsden
      • Exceptions: Third Party Evidence
      • Exclusionary Rule WIP
      • Fifth Amendment Rights
  • LPS Conservatorship Court Overview
    • Public Conservator >
      • Los Angeles Public Guardian
      • CONSERVATORSHIP INVESTIGATION REPORT
      • CAREER >
        • Continuing Education
        • Public Conservator County Numbers '16
        • San Diego Public Conservator '19
      • LPS Conservatorship for Dependent Parents and Minors
    • WHY ARE LPS CONSERVATORSHIP AND PROBATE CONSERVATORSHIPS DIFFERENT
    • Court of Appeals >
      • In re Ben C- Wende Brief no issue writ
    • Trial Court Transcript
    • Conservatorship Legal Documents
    • INITIAL INVOLUNTARY PROCEEDINGS >
      • Grave Disability >
        • Present Grave Disability
      • Venue
      • Conservator's Bond
      • When the Conservatee Goes AWOL
      • Involuntary Commitment
      • Conservatorship Factors
      • Riese Hearing >
        • Riese Hearing
      • Supplemental Security Income/ SSI >
        • Applying for SSI
        • Documents for SSI
        • Process and Appeal
        • Award Letter
        • Rep Payee
        • SSI Amounts 2018/2019
  • For LPS Conservatees
    • RIGHT TO APPEAR IN COURT
    • JUDICIAL REVIEW >
      • WRIT OF HABEAS CORPUS
    • NOTICE
    • MEDICATION
    • PLAN OF CARE IF DISCHARGED
    • RIGHT TO COUNSEL
  • BUILDING A STRONG CASE FOR CONSERVATORSHIP
    • POWERS OF CONSERVATOR >
      • Placement Powers
      • Medication powers
    • WHY ONLY THE PUBLIC CONSERVATOR IS ALLOWED TO FILE FOR LPS CONSERVATORSHIP
    • SERVING AS CONSERVATOR
    • DSM V DIAGNOSIS LIMITS
    • CONSERVATEE INTERVIEW
    • HISTORY OF DECOMPENSATION AND LACK OF INSIGHT
    • WRAPPING IT ALL TOGETHER AND CREATING THE NEXUS BETWEEN SYMPTOMS, HISTORY, COMPLIANCE, THIRD PARTY ASSISTANCE TO PROOF OF CURRENT GRAVE DISABILITY BEYOND A REASONABLE DOUBT
  • MAKING SENSE OF THE RULES OF EVIDENCE AND PRESENTING YOUR EVIDENCE AT TRIAL
  • JUVENILE DEPENDENCY
    • FAST TRACK DEPENDENCY
    • DEPENDENCY APPEALS
    • DETENTION
    • JURISDICTION DISPOSITION (JURIS/DISPO)
    • §366.26 Hearing: Selection and Implementation
    • 730 Evaluators
    • Case Plan
  • New Updates
    • Right to Choose