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Scott S v. the Superior Court of Orange County

March 14, 2012


Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, Caryl Lee, Judge. Petition granted. (Super. Ct. No. A-203093)

The opinion of the court was delivered by: Ikola, J.



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.)*fn1 authorizes conservatorships for gravely disabled persons like petitioner. The conservatee generally retains the right to give or withhold consent to medical treatment. The conservator must seek authorization from the court to obtain medical treatment to which the conservatee objects. (§ 5358.2.)

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.


Petitioner is subject to an LPS conservatorship. The letters of conservatorship 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 [petitioner] faces loss of life or serious bodily injury, no surgery shall be performed upon [petitioner] without the [petitioner's] prior consent or court order."

The public guardian applied to the court for an order pursuant to section 5258.2 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,*fn2 the court concluded "capacity is the sole issue for this hearing." It stated the declaration was "sufficient" and provided "enough information that I could -- I could opine that it's medically necessary," later reiterating amputation was "medically necessary, based upon this document . . . ." It acknowledged petitioner's hearsay objection, yet noted that "[w]hat the court thinks about having a doctor here" to testify "is really not the issue." "But, based upon what I've researched and reviewed," the court stated, "I believe that the law does prescribe that the sole issue to be decided at this particular proceeding is the issue of [petitioner's] capacity to give or withhold informed consent . . . ."

The court proceeded to conduct a hearing on petitioner's capacity to consent to medical treatment. The public guardian called James Earnest as a witness. The court began to ask counsel to "stipulate that Dr. Earnest is qualified as a forensic psychiatrist," but petitioner's counsel interrupted to refuse to stipulate to the witness's competence "to give testimony on the medical capacity of the need for these procedures." The court clarified the issue is "whether or not [petitioner] can consent or withhold consent, or consent to the performance of the procedure. And, I mean, the issue was framed as a psychiatrist but it would be [a] psychologist."

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 interview of [petitioner], that some of the responses were not exactly in tune with the questions that were presented to him." The court ...

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