Humboldt Cnty. Adult Protective Servs. v. Superior Court of Humboldt Cnty.

• Decision Date: 24 October 2016
• Docket Number: A145981
• Court: California Court of Appeals Court of Appeals
• Parties: HUMBOLDT COUNTY ADULT PROTECTIVE SERVICES, Plaintiff and Respondent, v. The SUPERIOR COURT of Humboldt County, Defendant and Respondent; Judith C. Magney, Real Party in Interest and Appellant.

4 Cal.App.5th 548

208 Cal.Rptr.3d 666

HUMBOLDT COUNTY ADULT PROTECTIVE SERVICES, Plaintiff and Respondent,

v.The SUPERIOR COURT of Humboldt County, Defendant and Respondent;

Judith C. Magney, Real Party in Interest and Appellant.

A145981

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

Filed October 24, 2016

Jeffery S. Blanck, County Counsel, Blair Angus, Deputy County Counsel for Plaintiff and Respondent.

Harland Law Firm LLP, Allison G. Jackson, Eureka, for Real Party in Interest and Appellant.

No appearance for Respondent and Defendant.

I. INTRODUCTION

Banke

, J.

The Health Care Decisions Law (Prob. Code, § 4600 et seq.

)¹ recognizes and protects the “fundamental right” of adults to control decisions concerning their own health care, “including the decision to have life-sustaining treatment withheld or withdrawn.” (§ 4650, subd. (a).) Humboldt County Adult Protective Services (Humboldt) filed a petition under this law, ex parte and without notice, to effectively revoke Dick Magney's written advance care directive (the validity of which has never been questioned) by removing his wife as his designated agent for health care decisions and to compel medical treatment. Humboldt took this action two weeks after Mr. Magney was hospitalized and while he was receiving palliative care, the course recommended by his treating physician (as well as by his prior treating physician and consulting cardiologist) and desired by both Mr. Magney and his wife.

Humboldt succeeded in procuring a temporary treatment order. It did so not only on the basis of an appallingly inadequate evidentiary showing, but also by misleading the trial court both as to pertinent provisions of the Health Care Decisions Law and as to Mr. Magney's medical status. Among other things, Humboldt deliberately made no mention of the physician actually treating Mr. Magney at the time, withholding from the court that physician's medical assessment of Mr. Magney's condition, and specifically, her opinion that palliative care was appropriate and consistent with his wishes. Within days of Mrs. Magney retaining counsel, Humboldt withdrew its petition and the trial court vacated the temporary treatment order.

The court denied, however, Mrs. Magney's request for statutory attorney fees. We reverse. On this record, Humboldt had no “reasonable cause” to proceed under the Health Care Decisions Law.

II. BACKGROUND

A. The Health Care Decisions Law

Three legislative findings undergird the Health Care Decisions Law: First, “that an adult has the fundamental right to control the decisions relating to his or her own health care, including the decision to have life-sustaining treatment withheld or withdrawn.” (§ 4650, subd. (a).) Second, prolonging “the process of dying for a person for whom continued health care does not improve the prognosis for recovery may violate patient dignity and cause unnecessary pain and suffering, while providing nothing medically necessary or beneficial to the person.” (§ 4650, subd. (b).) Third, “in the absence of controversy, a court is normally not the proper forum in which to make health care decisions, including decisions regarding life-sustaining treatment.” (§ 4650, subd. (c).)

Effective in 2000, the Health Care Decisions Law both recodified and modified then-existing statutes and added new provisions concerning the making of health care choices by competent adults, including choices that remain operative when an adult subsequently lacks capacity to make such choices. (Conservatorship of Wendland (2001) 26 Cal.4th 519, 534, 110 Cal.Rptr.2d 412, 28 P.3d 151

(Wendland ); see generally 2000 Health Care Decisions Law and Revised Power of Attorney Law (Mar. 2000) 30 Cal. Law Revision Com. Rep. (2000) pp. 7–30.) The Law, located in division 4.7 of the Probate Code, “gives competent adults extremely broad power to direct all aspects of their health care in the event they become incompetent.” (Wendland , supra , 26 Cal.4th at p. 534, 110 Cal.Rptr.2d 412, 28 P.3d 151.)

Most significantly for purposes of this case, the Health Care Decisions Law provides the statutory framework for advance health care directives. An “advance health care directive” or “advance directive” is specifically defined to mean “either an individual health care instruction or a power of attorney for health care.” (§ 4605.)

Part 2 of division 4.7, chapter 1 (entitled “Advance Health Care Directives”) provides, in article 1, that an “adult having capacity” may do the following: “give an individual health care instruction” either orally or in writing (§ 4670), “execute a power of attorney for health care” (§ 4671), nominate a person to act as conservator of his or her person and/or estate for consideration by the court (§ 4672), and execute a written “advance health care directive” (§ 4673).²

Article 1 of chapter 1 additionally provides a number of procedural protections in the execution and recognition of advance directives. (§§ 4673 [requirements for legally sufficient directive]; 4674 [witness requirements]; 4675 [requirements where person is a patient in a skilled nursing facility].) In the absence of knowledge to the contrary, a health care provider “may presume” a written advance directive is valid. (§ 4676, subd. (b).)

Article 2 of chapter 1 sets forth the requirements for creating a power of attorney for health care.³ (§ 4680 et seq.) Unless otherwise specified in the power of attorney, a power of attorney for health care becomes operative only when the principal lacks capacity, and ceases if and when the principal recovers capacity. (§ 4682.) The agent is to make health care decisions in accordance with “the principal's individual health care instructions, if any, and other wishes to the extent known to the agent.” (§ 4684.) “Otherwise, the agent shall make the decision in accordance with the agent's determination of the principal's best interest,” which includes considering the principal's “personal values to the extent known to the agent.” (§ 4684.)

Chapter 2 of part 2, in turn, provides an exemplar form advance care directive. It is suggestive only (§ 4700) and includes both a “power of attorney for health care” and “instructions for health care.” (§ 4701.)

The Health Care Decisions Law, thus, gives “effect to the decision of a competent person, in the form either of instructions for health care or the designation of an agent or surrogate for health care decisions.” (

Wendland , supra , 26 Cal.4th at p. 534, 110 Cal.Rptr.2d 412, 28 P.3d 151

.) “Such laws may accurately be described, as the Legislature has described them, as a means to respect personal autonomy by giving effect to competent decisions.” (Ibid. )

The Law also “is intended to fulfill the incapacitated patient's desires and best interest without resort to judicial proceedings, except as a last resort.”

(Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 891 (1999–2000 Reg. Sess.) as amended Sept. 1, 1999 (Sen. Rules Com. Rep.), p. 9, quoting Cal. Law Revision Com.) Accordingly, an advance health care directive “is effective and exercisable free of judicial intervention” (§ 4750, subd. (a)), and an agent under a power of attorney for health care can make health care decisions “without judicial approval.” (§ 4750, subd. (b).)

The Law, nevertheless, provides for the right to petition a superior court to: (a) determine whether or not a patient has “capacity to make health care decisions”; (b) determine whether an advance health care directive is “in effect or has terminated”; (c) determine whether the acts or proposed acts of an agent “are consistent with the patient's desires as expressed in an advance health care directive or otherwise made known to the court or, where the patient's desires are unknown or unclear, whether the acts or proposed acts of the agent ... are in the patient's best interest”; (d) declare, if the patient lacks capacity, that the authority of the agent has terminated because the agent has authorized “anything illegal” or has “violated, has failed to perform, or is unfit to perform” the duty specified in the advance care directive to act “consistent with the patient's desires,” or if the patient's desires are unknown or unclear, is “acting (by action or inaction) in a manner that is clearly contrary to the patient's best interest”; and (e) compel a third person to honor individual health care instructions or the authority of an agent. (§ 4766, subds. (a)-(e).) An advance care directive executed by an individual with legal counsel can preclude any right to petition, however, with two exceptions: if a conservator of the person seeks a determination under subdivisions (b) or (d) of section 4766, or an agent under a health care power of attorney seeks a determination under subdivisions (b) or (c) of section 4766. (§ 4753.)

The Law also enumerates who may file a petition: (a) the “patient”; (b) the “patient's spouse” (unless legally separated); (c) a “relative” of the patient; (d) the patient's “agent or surrogate”; (e) the “conservator of the person of the patient”; (f) the “court investigator” (under the Guardianship–Conservatorship Law, § 1400 et seq.); (g) the “public guardian of the county where the patient resides”; (h) the “supervising health care provider” or “health care institution” involved with the patient's care; or (i) “any other interested person or friend of the patient.” (§ 4765.)

The Law requires that any petition must state facts showing the petition is authorized under the pertinent statutes, the grounds of the petition, and if known to the petitioner, the terms of any relevant advance health care directive. (§ 4767.) It additionally allows for an award of attorney fees to (a) an agent or surrogate “if the court determines that the proceeding was commenced without any reasonable cause” or (b) to the petitioner “if the court determines that the agent or surrogate has clearly violated the duties under the advance health care directive.” (§ 4771.)

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