K.G., an Incompetent Person, etc., et al., Plaintiffs and Appellants v. Larry Meredith, as Public Guardian, etc., Defendant and Respondent (California Court of Appeal, First Appellate District, March 8, 2012, Case No. A132087)

The decision in K.G. v. Meredith is lengthy and relates to more than one important issue.  The following summary pertains to the nature of the finding that the trial court must determine before making a finding that a gravely disabled person under the Lanterman-Petris-Short Act lacks the right to make his or her own decisions on medical treatment for his or her grave disabilities, including involuntary administration of antipsychotic medication under Cal. Welfare & Institutions Code §5357(d); and the nature of the notice that must be provided to the proposed conservatee as a constitutional due process right.  Although the case involves an LPS conservatorship, you might also find the decision relevant for similar medical decision and drug or medication issues that may arise in an ordinary conservatorship of the person with medical decision making authority.

In pertinent part Cal. W&I Code §5357(d) states:

“5357.  All conservators of the estate shall have the general powers specified in Chapter 6 (commencing with Section 2400) of Part 4 of Division 4 of the Probate Code and shall have the additional powers specified in Article 11 (commencing with Section 2590) of Chapter 6 of Part 4 of Division 4 of the Probate Code as the court may designate. The report shall set forth which, if any, of the additional powers it recommends. The report shall also recommend for or against the imposition of each of the following disabilities on the proposed conservatee:

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     (d) The right to refuse or consent to treatment related specifically to the conservatee’s being gravely disabled. The conservatee shall retain all rights specified in Section 5325.”

On appeal, the Court of Appeal found:

“Petitioners are entitled to a judicial declaration that, before a trial court may impose a medical disability pursuant to section 5357(d), the court must find that the conservatee or proposed conservatee is incapable of making rational decisions about medical treatment related to his or her own grave disability, that is, lacks the mental capacity to rationally understand the nature of the medical problem, the proposed treatment, and the attendant risks. In doing so, the court must consider the Riese factors, i.e., (a) whether the patient is aware of the nature of his or her grave disability; (b) whether the patient is able to understand the benefits and the risks of, as well as the alternatives to, the proposed intervention; and (c) whether the patient is able to understand and to knowingly and intelligently evaluate the information required to be given patients whose informed consent is sought and otherwise participate in the treatment decision by means of rational thought processes. To permit meaningful review, the record must reflect that the court was aware of this legal standard, that it considered evidence relevant to the standard, and that it made a finding utilizing that standard.

While we grant declaratory relief, we must remand for the trial court to consider whether mandamus relief should be granted. We do so for two reasons. First, remand will give the trial court an opportunity to consider whether the Public Guardian has taken, or will take, necessary action to comply with the law. Second, we recognize that the decisional incapacity finding is the superior court’s responsibility, regardless of the forms submitted by the Public Guardian. The trial court is in the best position to determine in the first instance whether mandamus relief is appropriate.”

The Court also held that as a constitutional right to due process the proposed temporary conservatee also must be served with more than simply notice of the hearing although the statutes do not require such. You should review the Court’s decision for the complete detailed discussion.  However, in pertinent part the Court stated:

“The notice provided by the Public Guardian to the proposed conservatees here did not describe the legal standard for imposition of the disability nor did it require any separate response. It provided contact information for the public defender’s and patient’s advocate’s office, but did not ensure representation. The notices in the record do not set forth a date, time and place for a hearing on the petition or, in the alternative, a date the temporary conservator will be appointed if no objection is interposed. The revised notice form submitted by the Public Guardian is not materially different. The revised physician’s declaration form prompts the declarant to provide evidence on each of the three Riese factors, but there is no indication that, contrary to the Public Guardian’s prior practice, this declaration form itself will be served on the proposed conservatee before the court imposes the section 5357(d) disability. We do not believe that mere absence of objection by an unrepresented party to an inadequate notice given by the Public Guardian can be regarded as the equivalent of “informed consent” to involuntary medication. (See Riese, supra, 209 Cal.App.3d at p. 1320.)

We find that the current practice of imposing a section 5357(d) disability provides inadequate notice and opportunity to be heard and therefore violates due process. (FN:20)  For the reasons stated ante, we remand for the trial court to consider the appropriateness of mandamus relief.”