Scott S. v. Superior Court of Orange County (California Court of Appeal, Fourth Appellate District, Case No. G046468, March 14, 2012)

Holding that in a LPS (Lanterman-Petris-Short) conservatorship a Conservator who is seeking authority to consent to non-emergency medical treatment for the Conservatee must show by competent admissible evidence that the treatment is medically necessary.  In this case the Public Guardian for Orange County sought authority to amputate the Conservatee’s infected toe.  The Conservatee contended that the trial court erred by relying on a physician’s written declaration to find that the amputation was medically necessary.

The Conservatee 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 that the Conservatee’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.’”

“’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).)”

“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 — i.e., (a) the conservatee has a medical condition that requires the recommended treatment, and (b) without treatment, a probability exists the condition will endanger the conservatee’s life or seriously threaten his or her physical or mental health.”

On appeal the Court held that the trial court’s finding that the amputation was medically necessary was invalid as the trial court’s decision was based on inadmissible written declaration out-of-court hearsay testimony.  The Court did find that the in-court testimony from a psychologist was sufficient to support the trial court’s lack-of-capacity finding.

However, the Court also “express[ed] 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.”