I would like to have some personal words about the upcoming decision regarding B. (E.), CONSERVATORSHIP OF. There was another petition for review granted at the Supreme Court level.
I would like to state that given the nature of the testimony given during hearing, the psychiatrist has ample opportunity to demonstrate grave disability. He is exempt from normal rules of hearsay and his report can paint a picture of the patient’s level of decompensation. For many doctors who deal with LPS Conservatorship they are accustomed to testifying and as I would say have “no bone in this fight”. Sure they can argue that they are invested in their patient’s outcome yet seriously a lot of physicians already suffer from caregiver fatigue and do not actually hold stake in the outcome. I would like to add that the stress of having to be forced to provide live testimony can invoke undue stress and exacerbation of symptoms. Even parents involved in a dependency proceeding with no underlying mental illness often are reminded of the importance of deportment due to visible crying or stress during the initial detention and juris/dispo hearing. They are reminded that the judge may not subconsciously view their parenting abilities favourably if they are showing signs of distress no matter how fitting it may be (given their child has been removed). And we all know once a bell is rung it cannot be un-rung. First impressions matter.
Now removing emotions from the equation lets look at some other case law to compare. Take physical restraints which have legal authority banning their use absent an order to show cause.
CACI 4009 Physical Restraint The fact that respondent has been brought before the court in physical restraints is not evidence of grave disability. You must not speculate on the reasons for such restraints.
This means that a proposed LPS conservatee in a jury trial may not be shackled unless the trial court follows the procedures outlined in People v. Duran (1976) 16 Cal.3d 282.
First, the proposed conservatee may not be shackled absent facts on the record that justify the trial court’s decision to require shackles. Second, where the trial court determines that a proposed conservatee must be shackled, and those shackles are visible, the court must sua sponte instruct the jury that the shackles are not evidence of disability.
“The imposition of physical restraints in the absence of a record showing of violence or a threat of violence or other nonconforming conduct will be deemed to constitute an abuse of discretion.” (People v. Duran (1976) 16 Cal.3d 282, 291.)
The court has found that the use of restraints has a negative implication in criminal proceedings and thus reversed the decision accordingly in re People v. Duran.
The risk to freedom and the stigma attached to involuntary conservatorship led the California Supreme Court to consider the integrity of the fairness of the fact finding process in regards to restraints with LPS Conservatorship.
Because LPS Conservatorship already shares two similarities with criminal matters, burden of proof and unanimous jury as part of an effort to reduce the stigma behind LPS Conservatorship it makes sense to also add protection against compelled testimony.
With restraints it gives the impression to the jury and judge that the individual is not in control of their actions, is mentally unwell, and generally unsafe to be in society no matter the prior events. It sets a precedent for the entire hearing or trial. Once a judge sees the patient in restraints they imagine a “crazy person” during the trial…. A person not in control of their emotions or actions. Testimony and clear evidence proffered by the conservatee may go in one ear and out the other thus invalidating the patient’s due process rights.
I strongly hold that the same applies to compelled testimony. The patient in most cases has not committed any criminal action where compelled testimony would be mandated. They are simply mentally ill and in need of treatment. Should the court choose to rely mostly on the doctor’s declaration to make that necessary finding of grave disability, why would the patient’s forced testimony be necessary. Forced testimony can make the patients uncomfortable and bring about symptoms that are not normally expressed. For example, they may stutter, draw blanks on what they are saying due to stress, cry, yell, or not be able to articulate their knowledge about the proceedings. As lawyers already know there is a specific manner in which examination and cross are performed and patients are unaware of this. Thus, they may be prompted in such a manner to provide a leading answer that they lack the mental capacity to foresee.
Another aspect is that a patient may have not been fully stabilized and may be experiencing symptoms. Take for example if there is a patient who is suffering manic delusions, they may spout non sequiturs, assert their delusions forcefully, and demonstrate psychomotor agitation that appears “ridiculous”. At the time patient may not be aware of their bizarre behaviour, but a lot of patients on outpatient programs have voiced great embarrassment and shame over their manic actions. They feel a great shame over their outbursts and wish they could erase the past. Granted these outpatient manic patients may have had shameful experiences at work and with family. Those persons may be more forgiving and understand the patient’s behaviour. Manic patients will eventually have a chance to explain the disorder and manic behaviour and achieve closure over their bizarre behaviour. However, within the realm of the court room, patients usually have one chance to present themselves to a judge and a jury. Regardless of mania or psychosis, patients still have dignity and wish to maintain that regardless of current mental status. The court rarely offers them a chance to redeem themselves and explain their behaviour and come to a resolution. They will never see those jury members again so they cannot achieve closure with them again. The patient may stabilize and feel embarrassed by their actions yet know that they left an impression with the court or jury that is very hard to undo. And those feelings of shame definitely fester leaving the patient feeling violated and humiliated.
Because of this the supreme court reviewing this decision in the near future should also apply the very human experience of mental illness alongside the legal authority they choose to cite in their opinion. Because I have read many opinions that cite lots of legal authorities and logic but rarely address how it may feel for the patient. Lets try and bear all of this in mind when the court renders its decision and hope that it upholds the finding of the appellate court.
Juvenile Dependency and