Opinion
—Petitioner Scott S. petitions for writ review of an order authorizing Lucille Lyon, public guardian for Orange County, to consent to amputating petitioner’s infected toe. He contends the court erred by relying on a physician’s written declaration to find the amputation was medically necessary.
We agree. The Lanterman-Petris-Short Act (LPS; Welf. & Inst. Code, § 5000 et seq.)
Resolving an issue of first impression, we hold an LPS conservator seeking such an order must show the desired treatment is medically necessary—and must do so through admissible evidence. This conclusion follows from plain statutory language and harmonizes the LPS with the Probate Code, portions of which the LPS incorporates by reference. We grant the writ petition and direct the court to vacate its order and conduct a new hearing to determine whether admissible evidence shows the amputation is medically necessary.
FACTS
Petitioner is subject to an LPS conservatorship. The letters of conservator-ship appoint the Orange County Public Guardian as the conservator, and grant to the public guardian the right to require petitioner to receive medical treatment related to the recurrence of his grave disability or four specified medical conditions. But the letters withhold any general authority for the public guardian to consent to medical treatment for petitioner. To the contrary, they provide: “Except in the case of an emergency in which
The public guardian applied to the court for an order pursuant to section 5358.2 authorizing her to consent on petitioner’s behalf to the amputation of the second toe on his right foot. She filed a form declaration from petitioner’s physicians.
In the declaration, one physician stated petitioner suffered from “osteomyelitis, open wound of the right second toe.” He explained the benefit of amputation would be to “eliminate ongoing source of infection,” while the risks include “breakdown of the wound, possible need for further amputation.” Without amputation, petitioner would face “progressive destruction of the toe, possible ascending infection to the foot.” With amputation, petitioner’s prognosis would be “good,” with “minimal impact on [his] ability to walk.”
A second physician stated on the declaration that petitioner “[l]acks the capacity to give informed consent to the proposed, medical treatment . . . .” This physician explained petitioner suffers from “schizoaffective disorder” and “major impairment’ to his information processing ability—several functions were “so impaired as to be incapable of being assessed.”
At the hearing, petitioner contended the public guardian could not show the amputation was medically necessary because the declaration was hearsay. The public guardian conceded the declaration was inadmissible hearsay. But the public guardian asserted petitioner’s capacity to consent to medical treatment was “the only issue in a proceeding brought under Welfare and Institutions Code [section] 5358.2,” and “medical necessity is not a required element of proof under that statute.”
After thorough discussion and deliberation,
Dr. Earnest testified he had examined petitioner and his medical records and concluded petitioner suffers from “schizophrenic disorder.” He opined petitioner “lacks capacity to make decisions regarding this present medical procedure,” in “that he wasn’t able to engage with me in any kind of meaningful discussion or risks and benefits, even of understanding the nature of his disorder, and was unable to give me a reason for objecting to the procedure that went beyond the simple refusal.” Petitioner objected on the ground of lack of foundation and moved to strike the witness’s entire testimony—the court overruled the objection and denied the motion.
The public guardian also called petitioner as a witness. Petitioner testified: “I don’t know why I’m here. I know why I’m here, but, you know why I’m here.” He also stated: “I don’t think I need to be here today, not me.” When asked whether he was “objecting to having the medical procedures done today,” petitioner answered, “No.” Over the public guardian’s objection, petitioner’s counsel spoke to him off the record while he remained on the stand. His counsel then asked him on the record, “Do you want to have your toe amputated?” Petitioner answered, “No.”
The public guardian then asked petitioner in several different ways whether he knew why his doctors recommended amputating his toe. Petitioner’s answers included: “Well, it’s not going to be removed. It will be fixed, not removed, and you guys will pay for it”; “No, you can’t talk to me. The case—[unintelligible]—the doctor never told me because I—who else? Huh?”; “That I—same thing, they’d have—amputate my leg”; “I can’t go on”; “They are not going to amputate my . . . toe”; “There’s not enough doctors in that place”; and “I could care less about your problems.” After that, the court found “the questions are just not going to generate responsive answers.”
After hearing argument, the court found petitioner “lacks the capacity to give or withhold informed consent” to amputating his toe. It found Dr. Earnest had foundation to testify about petitioner’s psychological disorder and his ability to give informed consent. It noted petitioner’s “testimony in court was probably supportive of what Dr. Earnest may have come across during his
Petitioner filed this petition for an extraordinary writ and, at our invitation, the public guardian filed an informal response. We stayed the proceedings and notified the parties we were “considering issuing a peremptory writ of mandate in the first instance” and solicited additional briefing from the public guardian. The public guardian responded with a letter denying the propriety of “Palma relief’ (Palma v. U.S. Industrial Fasteners, Inc. (1984)
DISCUSSION
Petitioner contends the court erred by relying on a written declaration to determine the amputation was medically necessary. He further contends the court erred by relying on Dr. Earnest’s testimony to determine his capacity to consent, and not requiring testimony from the treating physician.
The public guardian responds that the court need not determine medical necessity at all—the only issue here is petitioner’s capacity to consent. And on that point, the public guardian contends Dr. Earnest’s testimony sufficiently supports the order.
The LPS
“The rights of involuntarily detained mentally disordered people in California are scrupulously protected by the [LPS]. [Citations.] The act repealed the previously existing indeterminate civil commitment scheme;
The LPS “governs the involuntary detention, evaluation, and treatment of persons who, as a result of mental disorder, are dangerous or gravely disabled. [Citation.] The Act authorizes the superior court to appoint a conservator of the person for one who is determined to be gravely disabled [citation], so that he or she may receive individualized treatment, supervision, and placement [citation]. As defined by the Act, a person is ‘gravely disabled’ if, as a result of a mental disorder, the person ‘is unable to provide for his or her basic personal needs for food, clothing, or shelter.’ ” (Conservatorship of John L. (2010)
With specified exceptions, “[t]he procedure for establishing, administering, and terminating a conservatorship under [the LPS] shall be the same as that provided in Division 4 (commencing with Section 1400) of the Probate Code . . . ,”
“In a nutshell, the LPS ‘is intended to provide prompt, short-term, community-based intensive treatment, without stigma or loss of liberty, to individuals with mental disorders who are either dangerous or gravely disabled. [Citation.]’ [Citation.] The [LPS] Act ‘ “represents a delicate balance ‘between the medical objectives of treating sick people without legal delays and the equally valid legal aim of insuring that persons are not deprived of their liberties without due process of law.’ ” ’ ” (Conservatorship of Pamela J. (2005)
And the conservatee “retain[s] all rights not specifically denied under the LPS.” (Edward W. v. Lamkins (2002)
Thus, “[a] conservatee retains the right to refuse or consent to treatment related specifically to his or her being gravely disabled, and to routine medical treatment, unless the court specifically orders to the contrary.” (Edward W, supra,
In the initial appointment, the court may authorize the LPS conservator to consent on the conservatee’s behalf to routine medical treatment. “A conservator shall also have the right, if specified in the court order, ... to require his or her conservatee to receive routine medical treatment unrelated to remedying or preventing the recurrence of the conservatee’s being gravely disabled.” (§ 5358, subd. (b).) But even so, that authorization does not extend to nonroutine medical treatment like surgery. “Except in emergency cases in which the conservatee faces loss of life or serious bodily injury, no surgery shall be performed upon the conservatee without the conservatee’s prior consent or a court order obtained pursuant to Section 5358.2 specifically authorizing that surgery.” (§ 5358, subd. (b).)
Neither party disputes the public guardian needs a court order pursuant to section 5358.2 before authorizing amputation of petitioner’s toe. What remains are two questions: What must the public guardian show to obtain court authorization to consent to the amputation on petitioner’s behalf? And what kind of evidence must the public guardian offer in making that showing?
The Court Must Find Medical Necessity Before Authorizing an LPS Conservator to Consent for the Conservatee to Nonroutine, Nonemergency Medical Treatment
The first question concerns the elements of proof. Below, the parties agreed the public guardian must show at least that petitioner lacks the capacity to make his own medical decisions. (See, e.g., §§ 5005, 5327, 5331 [retained rights].) The public guardian contends that is the only relevant factor. But petitioner asserts the public guardian must also show the proposed amputation is medically necessary, though he cites no case law so holding. Our own research reveals no cases squarely on point.
But section 5358.2’s plain language obligates a conservator to show the proposed treatment is medically necessary. It uses the word “requires”— “If a conservatee requires medical treatment. . . .” (Ibid.) Contrast this phrase with other phrases the Legislature could have used in the LPS. The statute does not start “If a conservatee might benefit from medical treatment” or “If a conservator desires medical treatment for the conservatee” or “If a conservator has a good faith basis for obtaining medical treatment for the conservatee.” Instead, section 5358.2 allows the court to authorize the conservator to
Even if section 5358.2 was not expressly limited to medically necessary treatment, Probate Code section 2357 would fill in the gap. The EPS adopts the Probate Code’s “procedure for . . . administering ... a conservatorship” where the EPS is silent. (§ 5350.) Courts regularly turn to the Probate Code when construing the EPS. (See, e.g., John L., supra,
But the Probate Code goes on to require that treatment be medically necessary. The court must first find: “(1) The existing or continuing medical condition' of the ward or conservatee requires the recommended course of medical treatment. [(J[] (2) If untreated, there is a probability that the condition will become life-endangering or result in a serious threat to the physical or mental health of the ward or conservatee. [f] (3) The ward or conservatee is unable to give an informed consent to the recommended course of treatment.” (Prob. Code, § 2357, subd. (h).)
An EPS conservator seeking authorization pursuant to section 5358.2 should make a similar showing of medical necessity. We hold the conservator must show the conservatee’s medical condition “requires the recommended course of medical treatment” (Prob. Code, § 2357, subd. (h)(1)) and “a probability [exists] that the condition will become life-endangering or result in a serious threat to the [conservatee’s] physical or mental health . . .” without the treatment (id., subd. (h)(2)).
This conclusion harmonizes the LPS with Probate Code section 2357, which “serves the same purpose as Section 5358.2.” (Cal. Law Revision Com. com., 52A West’s Ann. Prob. Code (2002 ed.) foil. § 2357, p. 407.) “ ‘[Statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible.’ ” (Ortiz v. Lyon Management Group, Inc. (2007)
No persuasive authority excuses an LPS conservator from showing the desired treatment is medically necessary. In contending the only issue under section 5358.2 is the conservatee’s capacity to consent, the public guardian relies upon two lines of cases: the electroconvulsive therapy (ECT) cases and the antipsychotic drug cases. But those cases are limited in scope.
These three ECT cases expressly limit their analysis to section 5326.7. And because section 5326.7 applies only after three physicians have recommended ECT, the cases honed in on whether the conservatee had the capacity to consent. (See, e.g., Lillian F. v. Superior Court, supra,
The second line of distinguishable cases involves treatment for the conservatee’s gravely disabling condition. In one case, the court held only that “state prisoners, like nonprisoners under the LPS statutory scheme, are entitled to a judicial determination of their competency to refuse treatment before they can be subjected to long-term involuntary psychotropic medication.” (Keyhea v. Rushen (1986)
The antipsychotic drug cases are unhelpful here. They address only the treatment of a mental disorder already shown either to be gravely disabling (as with the LPS conservatee in Riese-, see § 5350) or to create a substantial danger of physical harm to others (as with the mentally disordered offender in In re Qawi', see Pen. Code, § 2962, subd. (d)(1)). Medical necessity for the antipsychotic medication has thus been established (or, for the prisoners in Keyhea v. Rushen, supra,
The exclusive focus in the ECT and antipsychotic drug cases on the capacity to consent applies only to similar cases where medical necessity has already been shown. None of these cases even purports to define the relevant factors for issuing an order pursuant to section 5358.2. Riese, for example, does not apply section 5358.2 at all. It mentions the statute only twice, in passing. (Riese, supra, 209 Cal.App.3d at pp. 1320, 1325.)
In sum: Before the court authorizes an LPS conservator pursuant to section 5358.2 to consent for the conservatee to nonroutine, nonemergency medical treatment, it must find (1) the conservatee lacks the capacity to give or withhold informed consent, and (2) the treatment is medically necessary—
The Court Must Find Medical Necessity Based on Admissible Evidence
This raises our second question: What kind of evidence must the public guardian offer in showing the amputation is medically necessary? The answer is straightforward: admissible evidence. The Evidence Code “applies in every action before the Supreme Court or a court of appeal or superior court,” unless “otherwise provided by statute.” (Evid. Code, § 300.) Nothing in the EPS provides otherwise.
The declaration upon which the court relied was inadmissible. “Except as provided by law, hearsay evidence is inadmissible.” (Evid. Code, § 1200, subd. (b).) And the declaration is classic hearsay. “Any statement not made by a witness testifying in court before the fact finder constitutes hearsay evidence when offered for its truth. [Citation.] Largely because the declarant is absent and unavailable for cross-examination under oath, hearsay evidence is less reliable than live testimony. [Citations.] Hearsay evidence is generally incompetent and inadmissible without statutory or decisional authorization, or absent stipulation or waiver by the parties.”
Admission of the declaration was prejudicial. No other evidence was offered to show amputation was medically necessary. And as petitioner noted
The Psychologist’s Testimony Sufficiently Supported the Lack-of-capacity Finding
Petitioner challenges the foundation for Dr. Earnest’s opinion, upon which the court relied in finding petitioner lacked the capacity to give or withhold informed consent to medical treatment. First, petitioner notes Dr. Earnest did not testify about his education, experience, or other expert credentials. Second, petitioner contends only the treating physician can testify about his capacity to consent. He asserts the treating physician is the only person with personal knowledge of the discussion at which he or she disclosed the benefits and risks of the amputation. Neither contention has merit.
First, Dr. Earnest’s expert qualifications were essentially conceded below. (See Evid. Code, § 720, subd. (a) [expert must show credentials only “[a]gainst the objection of a party”].) Petitioner noted he was a psychologist, and repeatedly referred to him as “Dr. Earnest.” The court expressed its familiarity with his credentials. The court asked petitioner to stipulate to Dr. Earnest’s credentials, and petitioner’s only objection was to his ability to testify to “the need for these procedures”—not to his expert qualification on the issue of capacity.
Second, the court could consider Dr. Earnest’s expert opinion on petitioner’s capacity to consent, without having to hear only from the treating physician. The issue when determining whether an EPS conservatee has the capacity to give or withhold informed consent is whether conservatee can “understand” and “knowingly and intelligently act upon” (§ 5326.5, subd. (c)) information including “[t]he reason for [the] treatment” (§ 5326.2., subd. (a)), “[t]he nature of the procedures to be used in the proposed treatment” (id., subd. (b)), “[t]he nature, degree, duration, and the probability of the side effects and significant risks ... of such treatment” (id., subd. (d)), and “[t]he reasonable alternative treatments” (id., subd. (f)). (See Riese, supra,
DISPOSITION
The petition is granted. Let a peremptory writ of mandate issue directing the court to (1) vacate its order authorizing the public guardian to consent on petitioner’s behalf to the amputation of his right second toe, and (2) set a new hearing limited to the issue of determining through admissible evidence whether the amputation is medically necessary.
The stay previously ordered is lifted. In the interest of justice, this opinion is final as to this court forthwith.
Moore, Acting P. J., and Aronson, J., concurred.
The petition of real party in interest for review by the Supreme Court was denied May 9, 2012, S201103.
Notes
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
The hearing transpired over three days. The court considered written briefs and extensive argument from petitioner and the public guardian, and conducted its own legal research.
Issuing a peremptory writ in the first instance is appropriate here. First, the procedural safeguards have been met. We notified the public guardian “ ‘that the issuance of such a writ in the first instance is being sought or considered.’ ” (Brown, Winfield. & Canzoneri, Inc. v. Superior Court (2010)
The Probate Code sets forth “a separate statutory scheme governing the appointment of conservators of the person for ‘adults who for any reason are incapable of talcing care of themselves.’ ” (John L, supra,
The public guardian has not invoked the emergency exception for “cases in which the conservatee faces loss of life or serious bodily injury.” (§§ 5358, subd. (b), 5358.2.) We do not reach whether it applies here, or what procedures the exception entails.
One practice guide weighs in with an unsupported “PRACTICE TIP.” (2 Cal. Conservator-ship Practice (Cont.Ed.Bar 2011) § 23.114, p. 1402.) It makes the bald assertion: “The issue at [the section 5358.2] hearing should be strictly the capacity of the conservatee to consent to (or refuse) the proposed treatment.” (Ibid.) We disagree for the reasons explained herein.
One case flagged—but left unresolved—the issue of whether Probate Code section 2357 applies to applications for orders pursuant to Welfare and Institutions Code section 5358.2. In Maxon v. Superior Court (1982)
On the other hand, the LPS cannot be harmonized with Probate Code section 2355. (See Welf. & Inst. Code, § 5350, subd. (h) [Prob. Code governs LPS conservatorships unless LPS provides otherwise].) Probate Code section 2355 allows the court to initially authorize a probate conservator to make all medical decisions for the conservatee, including end-of-life decisions. (Conservatorship of Drabick (1988)
Here again the Probate Code is instructive. When a probate conservator seeks authority to consent to medical treatment for the conservatee, “the matter may be submitted for the determination of the court upon proper and sufficient medical affidavits or declarations if the attorney for the petitioner and the attorney for the . . . conservatee so stipulate and further stipulate that there remains no issue of fact to be determined.” (Prob. Code, § 2357, subd. (g).) There was no such stipulation here.
We express no opinion on what kind of evidence is required, other than admissible evidence. In particular, we do not hold the LPS conservator must in every case call the treating physician to testify about medical necessity, if other relevant evidence on that point is admissible.