Conservator Must Show Medical Necessity of Toe Amputation to Which Conservatee Objects

In a case of first impression, a California appellate court held that a court-appointed conservator seeking the court’s consent to medical treatment of an involuntarily detained mentally ill person who objects to the treatment must show that it is medically necessary.


The conservator was appointed pursuant to the Lanterman–Petris–Short Act, which authorizes the involuntary detention, evaluation, and treatment of persons who, as a result of mental disorder, are dangerous or gravely disabled. The conservatee, who, according to the evidence, suffered from a schizophrenic disorder, refused to consent to the amputation of a toe. The toe had become infected and threatened to spread, potentially requiring further amputation of the entire foot. Evidence that the amputation was necessary consisted of a form declaration from the conservatee’s physicians.


In her application seeking consent to the amputation from the trial court, the conservator produced evidence showing the conservatee did not have the capacity to give his own consent to the procedure. The trial court granted authority to the conservator to consent to the amputation on the conservatee’s behalf, but stayed its order pending review.


Upon review, the conservatee argued the declaration from the treating physician was inadmissible hearsay and that the physician should have been called to testify. Therefore, the need for the amputation was not adequately shown. However, the conservator argued that medical necessity of the amputation was not at issue, merely the conservatee’s ability to consent to the procedure.  


The appellate court agreed with the conservatee. If non-routine medical care is indicated but the conservatee does not consent, the conservator must first show lack of capacity to consent. Then, it must be shown that the conservatee’s condition requires the recommended treatment, and that a probability exists that the condition will become life-endangering or result in a serious threat to the conservatee's physical or mental health without the treatment. Further, as in all cases before the court, the necessity must be shown by admissible evidence. The declaration from the conservatee’s physician in this case was hearsay and thus inadmissible.


The appellate court issued a peremptory writ of mandate directing the trial court to (1) vacate its order authorizing the public guardian to consent to the amputation of the toe, and (2) set a new hearing limited to the issue of determining through admissible evidence whether the amputation was medically necessary.


See: Scott S. v. Superior Court, 2012 WL 835238, (Cal.App. 4 Dist.  Mar 14, 2012) (not designated for publication).