Aden v. Younger

• Decision Date: 23 April 1976
• Court: California Court of Appeals Court of Appeals
• Parties: Gary C. ADEN et al., Petitioners, v. Evelle J. YOUNGER, as attorney general, etc., et al., Respondents. Civ. 14407.

Page 535

129 Cal.Rptr. 535

57 Cal.App.3d 662

Gary C. ADEN et al., Petitioners, v. Evelle J. YOUNGER, as attorney general, etc., et al., Respondents.

Civ. 14407.

Court of Appeal, Fourth District, Division 1, California.

April 23, 1976.

As Modified April 28, 1976.

As Modified on Denial of Rehearing May 20, 1976.

As Modified June 18, 1976.

Kaminar, Sorbo, Andreen & Thorn, by Robert Thorn and L. William McGrath, Jr., San Diego, for petitioners

Wainer & Stone, Inc., for American Psychiatric Ass'n and Arnold J. Stone, Los Angeles, for California Psychiatric Ass'n Area VI of the Assembly of the American Psychiatric Ass'n, as amicus curiae for petitioners.

Ball, Hunt, Hart, Brown & Baerwitz, by Robert E. Aitken and Gary D. Vestermark, Long Beach, for Capistrano-By-The-Sea Hospital, as amicus curiae, for petitioners.

Edward P. Scott, Washington, D.C., for Mental Health Law Project, as amicus curiae for respondents.

Evelle J. Younger, Atty. Gen., Elizabeth Palmer, Asst. Atty. Gen., and Edward M. Belasco, Deputy Atty. Gen., for respondents.

Judith Lerner, Berkeley, for Lawyers Committee to Support AB4481, as amicus curiae for respondents.

GERALD BROWN, Presiding Justice.

Petitioners Jane Doe and Betty Roe are mentally ill. Doe has had electroconvulsive therapy (ECT) and may need further voluntary treatments. Roe wants a surgical 'Multiple target procedure,' or psychosurgery. Petitioner Aden, a licensed California physician is certified by the American Board of Psychiatry and Neurology as a specialist in the treatment of psychiatric illnesses. Dr. Aden is Jane Doe's attending The Attorney General, the Director of Health, and the Board of Medical Examiners are respondents.

physician. Dr. Brown who is a California licensed surgeon and physician, is Betty Roe's treating physician and surgeon. He specializes in neuro-surgery and is a member of the American Board of Neurological surgeons and the American College of Surgeons. Petitioner Campbell is a licensed California physician and surgeon, with a specialty in neurology and psychiatry for over 30 years, but he is not certified by the American Board of Psychiatry and Neurology.

The law involved in this petition is part of the Lanterman-Petris-Short Act (Welf. & Inst.Code §§ 5000--5404.1). ¹ The law changes conditions under which psychosurgery and shock treatment can be performed. The changes applicable to persons involuntarily detained and persons voluntarily admitted to state hospitals, private mental institutions, county psychiatric hospitals and certain mentally retarded persons, are:

Psychosurgery: (§§ 5325, 5326, 5326.3.)

Patients have the right to refuse psychosurgery and the professional person in charge of the facility may not deny them that right. If a patient refuses consent, it must be entered on the record.

If a patient wants psychosurgery, then the conditions for performing such surgery include:

(a) The patient must give written informed consent, dated, witnessed and entered in his record. The consent may be withdrawn at any time. An oral explanation by the doctor is necessary.

(b) The patient must have capacity to consent.

(c) A relative, guardian or conservator to a responsible relative, guardian or conservator.

(d) The reasons for surgery must be in the patient's treatment record, other treatments must be exhausted and surgery must be critically needed.

(e) Three appointed physicians (two board-certified psychiatrists or neurosurgeons), must examine the patient and unanimously agree with the treating physician's determinations and that the patient has capacity to consent. There must be a 72-hour wait after the patient's written consent before surgery.

Shock Treatment: (§ 5326.4.)

If the treating physician feels shock treatments are necessary, he must give an extensive oral explanation to the patient and his relative, guardian, or conservator.

Shock treatments shall be performed only after:

(a) The patient gives written informed consent.

(b) The patient has capacity to consent.

(c) A relative, guardian or conservator has been given a thorough oral explanation.

(d) 'Adequate documentation' has been entered in the patient's record. All other treatments have been exhausted and the treatment is critically needed.

(e) There has been a review by three appointed physicians (two board-certified) who agree with the treating physician that the patient has capacity to consent.

If the patient does not have the capacity to consent, shock treatments can be given if conditions (c), (d) and (e) are met.

No shock treatments may be given if the patient is able to give informed consent and refuses.

The bill also provides for civil penalties of $10,000 or license revocation of doctors who violate these sections (§ 5326.5). ²

Petitioners assert the changes are unconstitutional in certain respects and want a peremptory writ of mandate permanently preventing respondents from enforcing the amendments.

Original jurisdiction in this Court is proper. The Supreme Court and the Court of Appeal may take original jurisdiction in cases of mandamus, prohibition or certiorari. (Cal.Const., art. 6, § 10.) However, California Rules of Court, Rule 56(a)(1) requires:

'If the petition might lawfully have been made to a lower court in the first instance, it shall set forth the circumstances which . . . render it proper that the writ should issue originally from the reviewing court . . ..'

Thus, exceptional circumstances must be shown before a reviewing court will take jurisdiction, such as issues of great public import and the necessity for prompt resolution of those issues (Ramirez v. Brown, 9 Cal.3d 199, 202--203, 107 Cal.Rptr. 137, 507 P.2d 1345; Jolicoeur v. Mihaly, 5 Cal.3d 565, 570, 96 Cal.Rptr. 697, 488 P.2d 1, fn. 1 & 2; San Francisco Unified School Dist. v. Johnson, 3 Cal.3d 937, 944, 92 Cal.Rptr. 309, 479 P.2d 669; State Board of Equalization v. Watson, 68 Cal.2d 307, 66 Cal.Rptr. 377, 437 P.2d 761; County of Sacramento v. Hickman, 66 Cal.2d 841, 59 Cal.Rptr. 609, 428 P.2d 593). In the present proceeding, the constitutionality of a state-wide law is challenged; and the rights of mental patients are dramatically affected by delaying a dispositive decision of this legislation's constitutionality. ³ The case is proper for this Court to exercise original jurisdiction (see Villa v. Hall, 6 Cal.3d 227, 98 Cal.Rptr. 460, 490 P.2d 1148, vacated 406 U.S. 965, 92 S.Ct. 2407, 32 L.Ed.2d 664, subs. opn. 7 Cal.3d 926, 103 Cal.Rptr. 863, 500 P.2d 887; Mooney v. Pickett, 4 Cal.3d 669, 674--675, 94 Cal.Rptr. 279, 483 P.2d 1231; Witkin, Cal.Proc., 2d ed. Extraordinary Writs, 1975 Supp., pp. 57--58). The use of a writ of mandate to prohibit the enforcement of an illegal statute is proper where prohibition would not lie.

Respondents contend there are issues of fact to be resolved and evidence must be taken on various aspects of the treatments, for example, whether there are sufficient psychiatrists available for review committees and the influence of the consultation procedures on the doctor-patient relationship.

These matters, however, are not necessary facts. The writ challenges the Legislature-dictated changes in how a patient may Consent to the psychosurgery and shock therapy, not the efficacy of the treatments.

Perhaps the most striking feature of authorities (and case law) in the area dealt with by this legislation is they are quite uniform in acknowledging that the processes by which electroconvulsive therapy and psychosurgery induce therapeutic effects are not fully understood. The two modes of treatment are quite differnet in several aspects and their relevant characteristics will be considered briefly and separately.

Psychosurgery, as defined in section 5325(g), as amended, includes those operations 'referred to as lobotomy, psychiatric surgery, and behavioral surgery . . ..'

Instructive and persuasive in this area is the case of Kaimowitz v. Department of Mental Health for the State of Michigan, 2 Prison L.Rptr. p. 433 which does not appear to be reported in an official report. We utilize it as a secondary authority, the citation of which is not prohibited by California Rules of Court, Rule 977, prohibiting citation of California cases not certified for publication in the California official reports.

The distinctive feature of such psychosurgical procedures is the destruction, removal, or disconnection of brain tissue in order to modify or control 'thoughts, feelings, actions, or behavior' when the tissue is normal or when there is no evidence any abnormality has caused the behavioral disorder. ⁴ Psychosurgery is also distinguished from 'shock' therapy by its Experimental nature. ⁵ Psychosurgery is an irreversible alteration of the brain and its functions that presents serious risks to patients, some of which risks are unknown. The court in Kaimowitz, supra, at page 475 concluded that the dangers of such surgery are undisputed. Such a procedure often leads to 'the blunting of emotions, the deadening of memory, the reduction of affect, and limits the ability to generate new ideas.' (Kaimowitz, supra, at p. 478.)

'Shock' treatment, more accurately termed 'electroconvulsive therapy' (ECT), is the name given to a group of therapies which involves passing electrical currents through the brain in order to induce convulsions. The therapeutic effects of ECT are generally believed to be obtained by the seizure produced by the stimulation of the central nervous system. The risks attending such treatment have been greatly reduced by the use of muscle relaxants and general anesthetics, which greatly reduce the body convulsions that led to bone fractures in the past. The mechanism by which ECT confers its benefits is still unknown, but two facts stand out in almost every discussion of the treatment: first, ECT does relieve symptoms of certain mental illnesses, most notably acute depression, and is widely recognized therapy for obtaining remission of those symptoms;...