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- The Dale Law Firm
- 1670 Riviera Ave, suite 101
- Walnut Creek, California 94596
- 235 Montgomery St
- San Francisco, California
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- If an adult patient who does not have a conservator of the person needs
medical treatment for an existing or continuing condition, a petition
may be filed for a judicial determination of whether the patient has the
capacity to give informed consent to specified medical treatment for
that condition. Prob C §3201(a).
- A petition under Prob C §3201(a) may be combined, in the alternative,
with a petition under Prob C §3201(b) requesting that the court
determine that the patient lacks the capacity to give informed consent
to the recommended treatment and designate a person to authorize that
treatment. Prob C §3201(c).
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- A person who has the capacity to give informed medical consent to a
proposed medical treatment also has the capacity to refuse consent to
that treatment. Prob C §813(b).
- If the court determines that the patient has the required capacity, the
court may also make a determination of whether the patient has accepted
or refused the recommended course of treatment and whether the patient's
consent to the recommended course is an informed consent. Prob C §3208(d).
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- California had already recognized a conservator's right to consent to
the removal of life support from a conservatee, including nutrition and
hydration, without the conservatee's prior written consent. See Conservatorship
of Drabick (1988) 200 CA3d 185, 245 CR 840.
- Drabick focused on the patient's "best interests," taking into
account evidence of the conservatee's wishes in connection with
life-sustaining treatment as a significant, but not conclusive, factor
in determining those best interests
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- In this case we consider whether a conservator of the person may
withhold artificial nutrition and hydration from a conscious conservatee
who is not terminally ill, comatose, or in a persistent vegetative
state, and who has not left formal instructions for health care or
appointed an agent or surrogate for health care decisions.
- Interpreting Probate Code section 2355 in light of the relevant
provisions of the California Constitution, we conclude a conservator may
not withhold artificial nutrition and hydration from such a person
absent clear and convincing evidence the conservator's decision is in
accordance with either the conservatee's own wishes or best interest. fn.
1
- The trial court in the case before us, applying the clear and convincing
evidence standard, found the evidence on both points insufficient and,
thus, denied the conservator's request for authority to withhold
artificial nutrition and hydration.
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- (a) If the conservatee has been adjudicated to lack the capacity to make
health care decisions, the conservator has the exclusive authority to
make health care decisions for the conservatee that the conservator in
good faith based on medical advice determines to be necessary.
- The conservator shall make health care decisions for the conservatee in
accordance with the conservatee's individual health care instructions,
if any, and other wishes to the extent known to the conservator.
Otherwise, the conservator shall make the decision in accordance with
the conservator's determination of the conservatee's best interest.
- In determining the conservatee's best interest, the conservator shall
consider the conservatee's personal values to the extent known to the
conservator. The conservator may require the conservatee to receive the
health care, whether or not the conservatee objects. In this case, the
health care decision of the conservator alone is sufficient and no
person is liable because the health care is administered to the
conservatee without the conservatee's consent.
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- (a) Except as provided in subdivision (b), the court may make an order
authorizing the recommended health care for the patient and designating
a person to give consent to the recommended health care on behalf of the
patient if the court determines from the evidence all of the following:
- (1) The existing or continuing condition of the patient's health
requires the recommended health care.
- (2) If untreated, there is a probability that the condition will become
life-endangering or result in a serious threat to the physical or
mental health of the patient.
- (3) The patient is unable to consent to the recommended health care.
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- (b) In determining whether the patient's mental functioning is so
severely impaired that the patient lacks the capacity to make any health
care decision, the court may take into consideration the frequency,
severity, and duration of periods of impairment.
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- (c) The court may make an order authorizing withholding or withdrawing
artificial nutrition and hydration and all other forms of health care
and designating a person to give or withhold consent to the recommended
health care on behalf of the patient if the court determines from the
evidence all of the following:
- (1) The recommended health care is in accordance with the patient's
best interest, taking into consideration the patient's personal values
to the extent known to the petitioner.
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Notes
