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TO:                  State Bar of California

 

FROM:            Marc B. Hankin

 

DATE:             October 7, 1999

 

RE:                   Proposal No.  99-8

 

 

Section/Committee and Contact:

 

Section/Committee:       Estate Planning, Trusts and Probate Law Section of the State Bar of California

Date of Approval:  [Yet to be submitted.]

Approval Vote:

Author:           Marc B. Hankin

10680 West Pico Boulevard

Suite 315

Los Angeles, CA  90064-2223

(0) 310-204-8989  (F) 310-204-8985

Email:   marc@marc-hankin.org

Principal Contact:  Marc B. Hankin

 

 

Digest:

 

Under current law, mentally ill people, who are dangerous to themselves or others, are sometimes hospitalized against their wishes.  Recognizing that some such hospitalizations may be inappropriate, the  Welfare and Institutions Code guarantees a patient the right to an administrative hearing at the hospital.  The purpose of the hearing is to determine if there is Aprobable cause to detain@ (Welf. & Inst. Code '5254) the person in a psychiatric facility for treatment related to an alleged mental disorder or impairment which allegedly makes the person Aa danger to others, or to himself or herself, or gravely disabled.@ Welf. & Inst. Code '5256.5.   The hearing must take place within Afour days of the date on which the person is certified for a period of intensive treatment.@  Welf. & Inst. Code '5254.

Under current law, neither the hospital nor the hearing officer may inform the patient=s family or friends or anyone else, if the patient objects to disclosure of any information about the hospitalization, or about the fact that there will be a hearing, or when the hearing will occur or anything about the hearing.  This protects the patient=s right to confidentiality about his or her mental health treatment.

Surprisingly, however, the patient has the right to prevent the disclosure of any such information also to the patient=s probate Conservator, if the patient has one, and to the patient=s LPS Conservator, if the LPS Conservator was not given the authority to consent to involuntary psychiatric hospitalizations.  This is particularly frustrating for a Conservator who has been charged by a Court with the duty of protecting the patient from harm and with the responsibility for caring for the patient=s health. The Conservator may not find out about the hearing until after it has occurred and after the patient has been discharged, when the Conservator is told that the patient was released and that the Conservator, who has the responsibility to provide for the patient=s health and safety, must now fulfill his or her duties, provided that the Conservator can locate the patient and somehow fulfill his or her duties.

It would seem more reasonable that a person who has been appointed by a Court to protect an incompetent person from harm should be allowed to  present evidence at a probable cause hearing as part of that Conservator=s role as the protector of the incompetent individual whom a Court has adjudicated to be incompetent.

 

Purpose:

 

This legislation is intended to enable Conservators to fulfill their duty to protect their conservatees by getting a meaningful probable cause hearing where all the relevant evidence is presented in a legally useful way.

 

Application:

 

Not less than 48 hours before a Aprobable cause@ hearing, the psychiatric facility would notify the conservator of the hearing.   The conservator would be allowed to present evidence.

 

Illustrations:

 

David Dole was appointed temporary conservator of his sister, Emily Dole, in Los Angeles Superior Court Case No. ___, with Emily=s support and joinder.  Later, Emily was hospitalized in Cedars Sinai Hospital Medical Center on an emergency basis, when she was brought there by a number of police officers, due to paranoia, hallucinations and credible threats she was making that she would kill her brother and her attorney, and other dangerous conduct.   Her attorney=s intervention as a peace maker narrowly avoided violence and the potential use of firearms.  Later, without notice to Emily=s temporary conservator, a probable cause hearing was held at the Hospital and Emily was discharged.  For a period of time, Emily=s temporary conservator did not even know where she was.  

Luckily, David was eventually able to find her, but when he found her, she was unwilling to accept help, and continued making death threats.  She was re-hospitalized involuntarily two weeks later.  Probable cause was found to detain her that time, and the County of Los Angeles petitioned for LPS conservatorship.   David was appointed as probate conservator on October 6, 1999.

 

Documentation:

 

None.

 

History:

 

None known.

 

Pending Litigation:

 

None known.

 

Likely Support/Opposition:

 

Advocates for the rights of mentally ill patients will oppose this bill.  Family member organizations will likely support it.

 

Fiscal Impact:

 

There will be some increase in the length and cost of probable cause hearings because more evidence will be submitted.

 

Germaneness:

 

The subject matter is directly related to the practice of the members of the Estate Planning, Trust and Probate Law Section.  The Section has the particular expertise pertaining to the litigation in the conservatorship context of controversies concerning the alleged misappropriation of property from incompetent persons.

 

 

 

 

 

Text of Changes

 

Welf & Inst. Code '5256.

  When a person is certified for intensive treatment pursuant to Sections 5250 and 5270.15, a certification review hearing shall be held  unless judicial review has been requested as provided in Sections 5275 and 5276.  The certification review hearing shall be within four days of the date on which the person is certified for a period of intensive treatment unless postponed by request of the person or his or her attorney or advocate.  Hearings may be postponed for 48 hours or, in counties with a population of 100,000 or less, until the next regularly scheduled hearing date.   If the health care facility has been served with letters of conservatorship or letters of temporary conservatorship of the person, issued either under the Welfare and Institutions Code or under the Probate Code, not less than 24 hours notice of the date, time and place of the certification review hearing shall be given to each such conservator or temporary conservator.

 

Welf & Inst. Code '5256.4.

 (a) At the certification review hearing, the person certified shall have the following rights:

  (1) Assistance by an attorney or advocate.

  (2) To present evidence on his or her own behalf.

  (3) To question persons presenting evidence in support of the certification decision.

  (4) To make reasonable requests for the attendance of facility employees who have knowledge of, or participated in, the certification decision.

  (5) If the person has received medication within 24 hours or such longer period of time as the person conducting the hearing may designate prior to the beginning of the hearing, the person conducting the hearing shall be informed of that  fact and of the probable effects of the medication.

  (b) The hearing shall be conducted in an impartial and informal manner in order to encourage free and open discussion by participants.  The person conducting the hearing shall not be bound by rules of procedure or evidence applicable in judicial proceedings.

  (c) Reasonable attempts shall be made by the mental health facility to notify family members or any other person designated by the patient, of the time and place of the certification hearing, .   Subject to the provisions of section 5356:

(1)        This information shall not be provided to those persons if unless the patient requests that this information not be provided.

(2)        The patient shall be advised by the facility that is treating the patient that he or she has the right to request that this information not be provided.

  (d) All evidence which is relevant to establishing that the person certified is or is not as a result of mental disorder or impairment by chronic alcoholism, a danger to others, or to himself or herself, or gravely disabled, shall be admitted at the hearing and considered by the hearing officer.

  (e)  Any person who has been appointed by a court as conservator or termporary conservator of the person certified, regardless whether the appointment was under the Welfare and Institutions Code or under the Probate Code, shall have the following rights:[1]

             (1) To appear with the assistance of an attorney, if he or she has one.

(2) To present evidence, including but not limited to documentary evidence, oral and  written witness testimony, and legal argument on his or her own behalf.

(3) To question persons presenting evidence in support of or in opposition to the certification decision.

(4) To make reasonable requests for the attendance of facility employees who have knowledge of, or participated in, the certification decision.

            (5) If the person certified has received medication within 24 hours or such longer period of time as the person conducting the hearing may designate prior to the beginning of the hearing, the person conducting the hearing shall be informed of that  fact and of the probable effects of the medication.

(e)      (f) Although resistance to involuntary commitment may be a product of a mental disorder, this resistance shall not, in itself, imply the presence of a mental disorder or constitute evidence that a person meets the criteria of being dangerous to self or others, or gravely disabled. 

 

 

 

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