K.G. v. Meredith

12 Cal. Daily Op. Serv. 2863

138 Cal.Rptr.3d 645

2012 Daily Journal D.A.R. 3191

204 Cal.App.4th 164

K.G., an Incompetent Person, etc., et al., Plaintiffs and Appellants,

v.Larry MEREDITH, as Public Guardian, etc., Defendant and Respondent.

No. A132087.

Court of Appeal, First District, Division 5, California.

March 8, 2012.

Unconstitutional as Applied

West's Ann.Cal.Prob.Code § 2250.2.

Morton P. Cohen for Plaintiffs and Appellants.

Daniel P. Brzovic, Oakland, and Michael J. Stortz, San Francisco, for Disability Rights California as Amicus Curiae on behalf of Plaintiffs and Appellants.Office of the Marin County Counsel, Patrick K. Faulkner, County Counsel, Edward J. Kiernan and Steven M. Perl, Deputy County Counsel, for Defendant and Respondent.BRUINIERS, J.

Petitioners K.G. and Donna H. were determined to be gravely disabled persons under the Lanterman–Petris–Short (LPS) Act (Welf. & Inst.Code, § 5000 et seq.) ¹ and were subject to conservatorships. Orders establishing the conservatorships divested them of the right to make their own decisions on medical treatment for their grave disabilities, including involuntary administration of antipsychotic medication. ( § 5357, subd. (d); hereafter, § 5357(d).) Together with the California Association of Mental Health Patients' Rights Advocates (CAMHPRA; collectively, Petitioners),² they filed a petition for a writ of mandate and declaratory relief against their conservator, the Marin County Public Guardian (Public Guardian), alleging that the Public Guardian had a “customary practice” of seeking and obtaining conservatorship orders imposing such a legal disability without an appropriate judicial determination of personal decisional incapacity.

The Public Guardian revised the pleading forms used in conservatorship proceedings, and the original conservatorships of both individual petitioners expired. The trial court found the petition to be moot and dismissed it. We do not agree that the matter is moot.

We conclude Petitioners are entitled to declaratory relief on two issues clearly raised and adequately briefed in this appeal. We agree with Petitioners and Amicus that medical decisional disabilities may not be imposed upon a conservatee without proper notice and the opportunity for hearing, or without a judicial determination of decisional incapacity. We therefore reverse and remand to the trial court for grant of declaratory relief on these issues and for consideration of whether mandamus relief may also be appropriate.

I. Background

A. The LPS Act

The LPS Act provides, among other things, for judicial commitments for involuntary evaluation and treatment of “gravely disabled” persons with psychiatric disabilities by means of a conservatorship. (§ 5350 et seq.) As relevant here, a “gravely disabled” person is one who, “as a result of a mental disorder, is unable to provide for his or her basic personal needs for food, clothing, or shelter.” (§ 5008, subd. (h)(1)(A); Conservatorship of John L. (2010) 48 Cal.4th 131, 142, 105 Cal.Rptr.3d 424, 225 P.3d 554.) A gravely disabled person may be involuntarily detained for increasing periods of treatment upon increasingly demanding showings of disability. (§§ 5150 et seq. [72–hour detention], 5250 et seq. [14–day detention], 5270.15 [30–day detention]; see also §§ 5260 [detention for additional 14 days if suicidal]; 5352.3 [detention for additional 3 days to file petition for temporary conservatorship].) Thereafter, a gravely disabled person may be placed under a conservatorship for renewable periods of one year. (§ 5350 et seq.) Generally, the individual is placed under a temporary conservatorship while a petition for a one-year conservatorship is pending and before a hearing on the one-year conservatorship takes place. (See § 5352.1.) The temporary conservatorship may last as long as 30 days in any case, and as long as six months in cases where the proposed conservatee requests a court hearing or jury trial on the issue of grave disability in the one-year conservatorship proceeding. ( Ibid.) If no other appropriate conservator is available, the county public guardian may serve as conservator. (Prob.Code, § 2920, subd. (a); see § 5350 [Prob.Code, Div. 4 procedures apply to LPS conservatorships unless LPS Act otherwise provides].)

The LPS Act “scrupulously protects the rights of involuntarily detained mentally disordered persons. [Citations.]” ( Keyhea v. Rushen (1986) 178 Cal.App.3d 526, 534, 223 Cal.Rptr. 746 ( Keyhea ).) “Section 5325.1 generally states that ‘[p]ersons with mental illness have the same legal rights and responsibilities guaranteed all other persons by the Federal Constitution and laws and the Constitution and laws of the State of California unless specifically limited by federal or state law or regulations' and then sets out a nonexclusive list of rights including ‘[a] right to dignity, privacy, and humane care’ (§ 5325.1, subd. (b)) and ‘[a] right to be free from harm, including unnecessary or excessive physical restraint, isolation, medication, abuse, or neglect. Medication shall not be used as punishment, for the convenience of staff, as a substitute for program, or in quantities that interfere with the treatment program.’ (§ 5325.1, subd. (c); see, §§ 5005, 5327.) ... [¶] [Moreover, i]t is one of the cardinal principles of LPS that mental patients may not be presumed incompetent solely because of their hospitalization.” ( Riese v. St. Mary's Hospital & Medical Center (1987) 209 Cal.App.3d 1303, 1313–1315, 271 Cal.Rptr. 199, fn. omitted ( Riese ); see also §§ 5331, 5326.5.)

B. Involuntary Medication and Treatment under the LPS Act

The LPS Act specifically authorizes the court to designate certain “disabilities” to which a conservatee may be subject, including decisional disabilities relating to medical treatment. (§ 5357.) These include depriving the conservatee of “[t]he right to refuse or consent to treatment related specifically to the conservatee's being gravely disabled” ³ ( § 5357(d)), and of “[t]he right to refuse or consent to routine medical treatment unrelated to remedying or preventing the recurrence of the conservatee's being gravely disabled” ( § 5357, subd. (e); hereafter, § 5357(e)). Treatment for a grave disability may include administration of antipsychotic medications.⁴ In the absence of a court order imposing these disabilities or an emergency, ⁵ a conservator may not require a conservatee to receive medical treatment. (§ 5358, subd. (b); hereafter, § 5358(b).)

In Keyhea, this court held that sections 5357(d) and 5358(b) implied that a conservatee has the right to consent to or refuse medical treatment for a grave disability absent a judicial determination that the individual lacks the capacity to rationally decide whether to refuse or consent to such medication (i.e., a finding of decisional incapacity) or an emergency. ( Keyhea, supra, 178 Cal.App.3d at pp. 534–536, 540–542, 223 Cal.Rptr. 746 [applying statutory LPS procedures to administration of psychotropic drugs to incarcerated state prisoners].) In Riese, our colleagues in Division 2 of this district similarly held that, absent a judicial determination of decisional incapacity or an emergency, the LPS Act also did not permit antipsychotic medication of involuntarily institutionalized patients ⁶ without their informed consent. ( Riese, supra, 209 Cal.App.3d at p. 1320, 271 Cal.Rptr. 199.) Following Riese, the Legislature codified capacity hearing procedures for such involuntary detainees. (§§ 5325.2, 5332–5334, 5336.)

The Riese court expressly declined to address constitutional arguments, but our Supreme Court has since held that the right of a competent adult to refuse medical treatment, including the right to refuse antipsychotic drugs, is not only statutorily recognized in the LPS Act, but is grounded as well in both state constitutional and common law rights of privacy and personal autonomy. ( In re Qawi (2004) 32 Cal.4th 1, 14, 16–19, 7 Cal.Rptr.3d 780, 81 P.3d 224 ( Qawi ).) As Qawi explains, the right to refuse treatment, including antipsychotic medication is not absolute, but is limited by countervailing state interests such as the state's parens patrie interest “ ‘in providing care to its citizens who are unable ... to care for themselves.’ ” ( Qawi, supra, 32 Cal.4th at p. 15, 7 Cal.Rptr.3d 780, 81 P.3d 224, citing Addington v. Texas (1979) 441 U.S. 418, 426, 99 S.Ct. 1804, 60 L.Ed.2d 323.) Nevertheless, “ parens patrie may be used only to impose unwanted medical treatment on an adult when that adult has been adjudged incompetent. [Citation.]” ( Qawi, at pp. 15–16, 7 Cal.Rptr.3d 780, 81 P.3d 224.) Consequently, an involuntarily committed gravely disabled person retains the right to refuse psychotropic medication in nonemergency situations unless “the person is determined to be ... incapable of making rational decisions about his [or her] own medical treatment.” ( Id. at p. 20, 7 Cal.Rptr.3d 780, 81 P.3d 224.) The Supreme Court confirmed that Keyhea and Riese correctly interpreted the LPS Act. ( Id. at pp. 16–19, 7 Cal.Rptr.3d 780, 81 P.3d 224.)

C. The Petition for Writ of Mandate and Declaratory Relief

Petitioners contend that the Public Guardian routinely seeks imposition of section 5357(d) disabilities on temporary and one-year LPS conservatees without a judicial determination of decisional incapacity and, in the case of temporary conservatorship, without meaningful notice and an opportunity to be heard.⁷

The petition alleged that the Public Guardian had a “customary practice of seeking and obtaining orders which deprive [LPS] Act conservatees of fundamental rights to consent to or refuse certain medical treatment, including powerful antipsychotic drugs, without any judicial determination of decisional incapacity.” The petition asserted that many CAMHPRA members represented temporary and one-year conservatees in Marin County who were subjected to involuntary antipsychotic medication without a...