Jan 3, 2017

Losing three times and being humiliated nationally already, Humboldt County Counsel sets themselves up for 4th defeat; Deputy County Counsel Blair Angus being investigated by State Bar

How many does do you have to lose and be humiliated, regionally and nationally, before you admit you messed up?

If you are Humboldt County Counsel, apparently three times is not enough.

In the Humboldt County Adult Protective Services v. Magney, Humboldt County Counsel's office sent this letter, reproduced here in full. Listed after that is the response by Harland Law Firm's Ms. Allison Jackson, who represented Mrs. Magney, reproduced in full.

To add insult to injury, Deputy County Counsel Blair Angus is being investigated by the State Bar, according to more than two sources.

I did contact the State Bar for official confirmation and received a response that, "Please be advised that State Bar disciplinary complaints and investigatory records are exempt from disclosure. "

County Counsel letter:

December 15,2016
Honorable Chief Justice Tani G. Cantil-Sakauye and Associate Justices of the California
Supreme Court 50 McAllister Street ·
San Francisco, California 94102

Re: Request for Depublication (Rules of Court, Rule 8.1125)
·.            .                             !\       \
Humboldt County Adult Protective Services v. Judith Magney
Case No. A145981 · ·

Honorable Chief Justice CantU-Sakauye and Associate Justices:

The Count)' ofHtimboldt respectfully requests that, pursuant to California Rules of Court, Rule 8J 125(a)(1) and (2)this Court order the opinion of the First District Court of Appeal in the above referenced matter be depublished.

Given the important role publication plays in defining California law, this Court has discretion under Rule 8.1125 to order depublication, and historically it has done so· when an opinion "is wrong in some significant way, such that it would mislead the bench
.    and bar ifit remained a citable precedent.?' (Joseph R. Grodin, The Depublication
Practice ofthe,:California Supreme Court (1984) 72 Cal. L. Rev. 514.)

Depublication is warranted  here. because the First District mistakenly ruled .fuat allegations of elder abuse and/or neglect are not relevant to a decision to bring a p tition
 seeking judicial review of the adtions of a health care surrogate. (Humboldt County Adult
Protective Se11Jices v. Superior Courti (2016) 4 Cal.App.Sth 548, 570).

I Humboldt County did not seek to overturn the decision of the trial court in this case. As set forth below, this was an actiQn to recover attorney's fees brought by Ms. Magney. The trial court ruled in favor of the County and Ms. Magney appealed.                                 ·               ·



Case Number: A145981

.  This case is an appeal from an order of the trial  cour:t denying Judith Magnc;y's request for attorneY's fees in connection with an Ex Parte-Application for Temporary Order Prescribing Health Care (Application) and a Petition to Enforce Duties of. Attorney-in-Fact for Health Care (Petition) filed by Humboldt County Adult Protective· Services (APS}on March 13,2015. The purpose ofthe Application and Petition was to
present evidence that (1) an agent for health care, Judith Magney, neglected her husband         -·
such that he was close to death; and (2) to ensure that Ms. Magney did not deliberately hasten .her husband'sDick Ma,gney's, death against his express Wishes by allowing · doctors to withdratreatment for the life-threatening medical condition created by her

.·  The Application and Petition were subsequently withdrawn by APS _without a hearing on the merits. Five days after the Application and Petition· were withdrawn, the Humboldt County Public Guardian filed a petition to be appointed· conservator of Mr. Magney. Thereafter, the court appointed the Humboldt County Public Defender to represent Mr. Magney (the Public Defender did not raise any complaint as to the decision . to file the Application and Petition).

When the Application andP it .<:> _:were withdrawn, Ms. Magney asked.the trial court to award attorney's fees. A hearing was conducted on April 10 and April 13, 2015 to allow APS to present evidence showing there was reasonable cause to file tbe Application and Petition. The APS investigator, Heather Ringwald, R.N., and St. Joseph loc1;llll tenens hospitalist.Dr.  Stephanie Phan testified at the hearing. During the              . proceedings, Honorable Judge Dale Reinholtsen ailowed the APS investigator to testify
.regarding the medica!records that she reviewed during her inv stigation. In addition; the coUrt allowed  APS to use the medicalrecords to refresh Dr. Phan's recollection of the
.. medical record she reviewed before decidingto discontinue intravenous antibiotic therapy for a Methicillin-resistant.Staphylococcus aureus (MRSA) heart infection.2 ·

The medical records established that Ms. Magney left her husband in a bathroom for six to eighweeks (during this time Mr. Magney slept in the bathroom and took his meals while sitting on the toilet). When Mr. Magney was admitted to the hospital on February 21, 2015, he was near death, suffering, and in pain, with chronic diarrhea, an e-

2 ·This recitation of the facts of the case is taken :from the transcript  of the testimony  of APS investigator Heather
Ringwald athe hearing conducted onAprillO, 20i5, andApril13, 2015, and the transcript of the testimony ofDr.
I                Stephanie Phan on April13, 2015, regarding the medical record that she relied on in making a decision to

discontinue treatment for Mr. JvlagneyThe medical records:thelilselves e contained in Volume II of Appellant's
 Appendix on Appeal.                            ·                 ·   ··                                                                ·


Case Number: Al45981
Page  13

coli infection, a MRSA heart infection (endocarditis), lesions, decubitus ulcers, and
.     sepsis. Treating physicians observed decubitus ulcers tracing the outline of the toilet seat. When doctors asked Mr. Magney whether he wanted surgery or invasive treatments, Mr. Magney stated those interventions would be "silly." However, he accepted medical management for the MRSA he.art infection.

Subsequently, at the hospital, during the evening of February 27,.2015, Mr; Magney appeared weak and could only. nod in answer to questions. He declined any further IV antibiotic treatment. Ms. Magney was by his bedside and agreed with this decision. In conversation with nursing staff, Ms. Magney stated that it was "time to let her husband go." She did not want to take him home for hospice care. By the next day, February 28, 2015; Mr. Magney was feeling better. He now declined hospice and clearly stated his wishes for medical management, including the resumption of antibiotic treatment. Ms. Magney, however, did not agree with Mr. Magney's .decision to resume
antibiotic treatment and informed medical staff thatshe could not care for her husband at
 home and was worried that Medicare would not pay for placement at a skilled nursing facility (SNF). When a nurse restarted the treatment at Mr. Magney's direction, Ms. Magney demanded that the nurse cail in the doctor. After documenqng that Mr. Magney
. clearly stated he wanted the medication and that Ms. Magney disagreed with her husband's preference, Dr. James Tang ordered thatthe  antibiotics continue.

Between February 28 and March 6, 2015, doctors maintained the IV antibiotic treatment at Mr. Magney's request, over Ms. Magney's objection. However, on March 7,
'                                                                                                                                                                                                                                                                      '
2015 Dr. Stephanie Phan assumed care for Mr. Magney at the hospital and decided to
discontinue the treatment. The doctor disc11ssed the situation with Mr. Magney and his wife, and Mr. Magney indicated he no longer wanted medical management. However,
during this conversation, Mr. Magney was only oriented to people, not to place and time.

In the Application and Petition, and based on the medical records, APS questioned whether Mr. Magney had capacity to consent to or reject medical treatment. Supporting documents submitted with the Application and Petition detailed the reasons why APS questioned whether Ms. Magney was acting consistent with her husband's wishes and interests. In addition, APS attached records provided by Mr. Magney's primary care physician at the Veteran's Administration (VA)that showed Mr. Magney's lack of

Case Number: Al45981

capacity to consent or reject treatment. Mr. Magney's primary care physician also indicated that Mr. Magney  would  die Within days if the antibiotics-were;not restarted.J

In opposition to the Application and Petition, Ms. Magney accused APS of interfering with her husband's fundamental nght to detennine his own medical treatment
·and claimed that APS, the APS investigator,.and the Office of the County·counsel deliberately withheld material information from the court regarding the medicl reasons underlying Dr. Phan's treatinent recommendations. In particular, Ms. Magney asserted that the decision to remove Mr. Magney from medications"was a medical decision made by Mr. Magney and all three of his doctors which [sic] were treating him at the time,"4S and pointed to a thirty minute conversation between Dr. Phan and the_APS investigator
·   during which Dr. Phan explained the reasons why it was medically warranted for the patient to stop the potentially life-saving treatment.67   

On July 22, 2015, the trial court issued a ruling denying attorneys' based on his fmdings regarding the circumstances of Mr. Magney's condition and treatment while at his residence prior to hospitalization, the divergence of opinions of health care providers while he was hospitalized and his uncertain mental capacity. However, the court did admonish APS for not including Dr. Phan's comments:

_... - ......-,- Ms. Ringwald did not include the information received from Dr. Phan in the Ex
Parte Petition for Temporary Order Prescribing Health Care [Probate Code section
4770] filed March 13, 2015, or in her declaration insupport of the Petition to
Enforce Duties of Attorney-in-Fact for Health Care [Probate Code section 4765] filed on the same date. Had the information been included, it is unknown whether the temporary order would have issued. Dr. Phan testified that palliative treatment
continued until the temporary order required resumption of intravenous antibiotics.
The Legislative Findings concerning the Health Care Decisions Law are set forth in Probate Code section 4650, which states:

.                                                                                                                                                        .
'The Legislature finds the following: (a) In recognition of the dignity and
privacy a person has a right to expect, the law recognizes that an adult has

3[Appellant's Appendix, Volume I, pages 1-32.]
4 [Appellant's Appendix, Volume I, pages 3940, 41.] ·
..     5 In fact, Dr. Phan did not consult with any doctors prior to withdrawmg th_e treatment for Mr. Magney, and no doctOrs independently reviewed and approved her treatment decision. [Testimony of Dr. Phan, April 13; 2015.]
6 [Appellant's  Appendix ,Volume I, pages 33-97.]                                                                                                ·
7 Judith Magney states that during this telephone conversation the APS investigator told Dr. Phan that "her department had 'a handful of incidents' in which her department was successful in reversing medicalcare chosen by patients. See Phan Declaration." The allegation and associated implication are false: in fact, the APS investigator
. made no such statement and Dr. Phan's declaration does not include any reference to this allegation. [Appellant's
·  . Appendix Volume 1: pages 45, 94-96.]

·   Case Number: Al45981

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. (b) Modem medical technology has made possible ·
the artificial prolongation of human life beyond naturalliinits.ln the
interest of protecting individual autonomy, this prolongation ofthe.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. (c) 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.'

Given the basic and fundamental rights involved, the Court would expect the information received from Dr. Phan, a hospital physician caring for Mr. Magney, tbe provided to the Court when the temporary order was sought."S

.          Ms. Magney then appealed the· trial court's ruling denying attorneys' fees, and
·    continued to allege that APS and the Office of the County Counsel deliberately withheld information·and misrepresented the law before the trial court. In a published opinion issued on October 24, 2016, Division One of the First District of the California Court of
Appeal reversed the trial-court's July 22,2015, ruling and characterized the omission oc--····-··--·--··-- ·
·     information regarding the phone conversation between the APS investigator and Dr. Phan as a deliberate fraud on the court.

The Co\lllty agrees with the Court of Appeal thatthe  Health Care Decision Law does not provide a forum in which to debate. a personal_health care decision. However, that was not the issue thatconfronted the APS investigator in this case. Unfortunately, there are situations where a patient executes aHealth Care Directive in favor of a surrogate and the surrogate subsequently abuses or neglects the patient, and in doing so, acts contrary to the patient's wishes and best interests and contrary to the terms of the Health Care Directive. When an abusive/neglectful surrogate has the power to make health care decisions, public policy militatesthat the adult protective services agency
should have authority to seek judicial intervention to enforce provisions of the Health         ·. Care Directive. In this context, allegations of abuse and neglect are manifestly relevant to the.question of whether a surrogate is acting consistent with the terms of the Health Care .· Directive.  Here, the APS investigator reasonably believed Judith Magney was acting contrary to her husband's express wishes and his best interests.

8 [Appellant's Appendix on Appeal, Volume II, pages 328-334.]

Case Number: A145981
Page 16

The Court of Appeal also resoundingly rejected the notion that medical records reviewed by the nurse were admissible for the nonhearsay purpose of establishing the factslrnown to the APS investigator at the time she filed the petition. However, it has                                             \
·long been recognized that it is not "true charges," but rather legally tenable claims for
relief that the law seeks to protect. (Sheldon Appel Co. v. Albert & Oliker (1989) 47
Cal.3d 863, 885.) The issue before the trial court was whether, on the basis of the facts
.                                     '
·known to the APS investigator, the filing of the ptioraction was objectively reasonable.
(!d. at 883; See also Zamos v. Stroud (2004) 32 Cal.4th 958, as modified (June 9, 2004).)

Under those circumstances, it was proper for the trial court to consider the medical records that supported the APS investigator's decision, not as proof of a medical
diagnosis or as conclusive evidence of elder abuse, but because the content of the records . constituted the facts upon which the APS investigator sought judicial intervention. "A
 declarant's statement may become relevant on some issue in a case merely because the words were spoken or written, and irrespective of the truth or falsity of any assertions

contaimid in the statement."(People v. Fields (1998) 61 Cal.App.4thl063, ·1068; People
v. Smith (2009) 179 Cal.App.4th 986, 1003.)

In this case, APS presented ev  es ow there was reasonable cause to ask a judge to make a determination as to whether Ms. Magney was acting consistent with her husband's wishes and best interests. In that context, APs could reasonably and logically argue that the medical records relied on by the APS investigator were not admitted for the truth of the matter asserted. (People v. Sanchez (2016) 63 Cal.4th 665, 686.) Moreover,
the medical record was not the only evidence presented at the attorney's fees hearing. On .
 Aprill3, 2015, Ms. Magney's witness, Dr. Phan, testified in detail to the content of the medical record that supported her decision to discontinue the antibiotic treatment. The doctor's testimony corroborated the APS investigator's reading of the medical record that. of the three hospitalists treating Mr. Magney prior to Dr. Phan, three doctors noted that
Mr. Magney wished to continue IV antibiotic treatment, and two doctors noted that when
Mr. Magney said he wanted treatment to continue, Judith Magney disagreed with her husband and urged the doctors to stop the medication. 9    ·

In issuing the opinion, the  First  Distri_ct Court of Appeal agreed with Ms. Magney's allegations that APS, the APS mvestigator, and the Office of the County Counsel deliberately deceived the trial court when they sought a temporary order prescribing medication to the patient. Characterizing the Application and Petition as an .··

9 [Testimony ofDr. Phan, Apri113, 2015 .)

Case Number: A145981
Page  17

assault on the patient's right to determine his own medical care, Ms. Magney urged that the failure to include details of the treating physician's reasons for recommending ·
'palliative care in a petition for a temporary order prescribing medication amounted to an effort to deceive the court into.overriding the doctor's treatment decision and thus interfering with the patient's fundamental right to make his own treatment decisions.lo

Both the First District Court of Appeal and Ms. Magney overlook the fact that . APS's decisionto  file the Application and Petitionwas.not discretionary. To the contrary, the APS investigator was mandated to respond immediately to the report of imminent danger to an _elder or dependent adult, such as the allegations' of abuse and neglect of Mr. Magney by Ms. Magney. (Welf. & Inst. Code, § 15763.) In fact, because there was credibie evidence that gave rise to aninference that Ms. Magney was misrepresenting her husband's wishes to medical staff and in light of the imminent risk of Mr. Magney's
death before APS could conclude its investigation, APS acted to preserve Mr. Magney's
.right to determine his own medical care.11 (California Powers of Attorney and Health
Care Directives (Cal CEB), October 2016 Update, Chapter 11: Judicial Proceedings, 11-
18, 11-26, 11-31.)

Moreover, of primary concern from the point of v!e.VV..?;:m_ iiwestigation into elder abuse and neglect was the capacity of the patient to ehgage with the treatment decision, not the merits of any recommended treatment. In her progress note of March 7, 2015, Dr.. Phan documents that she went. forward with a decision to withhold a potentially life­ saving treatment after discussing her recommendation with Mr. Magney and his wife.t2
The reasonable infeien,ce from that record is that the doctor obtained a verbal consentto treat from Mr. Magney, withoutactually  confirming his capacity or making a formal determination that she should defer to Judith Magney as the surrogate. However, to be effective; consent must be made knowingly and given freely. Consent must not be obtained through the exercise of duress or coercion. The patient (or representative) must
be .conscious and have the capacity to understand the purpose and effect of the decision to
be made and the form to be signed. It is the treating physician's responsibility to determine whether the patient has this capacity.·There is no provision in California or
·   federal law that permits two doctors to consent on behalf of a patient. This is true whether
the patient has the capacity to make health care decisions or not. The patient or a legal

·10 [Appellant's Appendix on Appeal, Volume I, pages 39-40.)
11 [Appellant's Appendix on Appeal, Volume II, pages 209,214,217, 219,224; 226; Testimony of Dr. Phan, April
13, 2015.]                                                                                        .
12 (Appellant's Appendix on Appeal,Volume II, pages 235-236; Testimony of Dr. Stephanie Phan, April i3, 2015.]
.                                                                 .

12/19/2016 MON 16:27 FAX 7074456297


Case Number: Al45981
Page 1.8

 representative must provide consent to medical treatment, except in an emergency or as otherwise permitted by law. (Cobbs v. Grant, (1972) 8 Cal.3d 2i9, 242; Trumar,z v. · Thomas, (1980) 27 Cal.3d 285; California Hospital Associ.ationConsent Manual (2015) Chapter One: Patient's Rights and Basic Principles of Consent, pages 1.1-1.8 http://www.calhospital.org/sites/main/files/file- attachments/consent2015_webpreview.pdf; last visited Decell},ber 15, 2015.)

Cases inv()lving elder abuse and neglect are understandably complicated because they require a sensitive balance between respect for the rights of an individual and the public interest in protecting dependent and elder adults from abuse. However, the necessity for sensitivity does not negate the requirement for proactive and protective investigations. '"Domestic'  elder abuse isa fonn of domestic violence and, as such, it cuts across income, race, socioeconomic, religious ability and cultural lines." (Lindberg, Sabatino & Blancato, Bringing National Action to National Disgrace:  The History of
.  ·the Elder Justice Act (201l) 7 NAELA J. 106.} "Intervention and prevention req11ires a wide system of community involvement from family members, to social workers, to health care, legal and financial professionals, to concerned neighbors." (!d. at 106) Yet "[t]o date 1the ability to provide services to victims and prosecute perpetrators has been hampere,d.by_conflictingmandates, differing defmitions and disparate funding--streams:"

By framing the actions of the APS investigator as a: deliberate assault on a
·    ·patient's .right to determine his own medical care, the First District Court of Appeal's opinion ensures that in the future -- even when there are credible allegations that a health care surrogate is abusing, neglecting, or exerting undue influence mi a patient -- APS and other protective agencies will refrain from proactively protecting victims of elder apuse · for fear of resulting litigation... Such a result is contrary to well-settled public policy that "APS should have-the power to intercede whenever an elder or dependent adult's safety is at issue. (Welf. & Inst. Code, § 15600(i).)

The uncontroverted evidence before the court was that Judith Magney disagreed with her husband when he clearly expressed his wish to continue antibi()tic treatment. Furthennore, at the time Dr. Phan decided to allow Mr. Magney to die by withdrawing the life-saving antibiotic treat!!lent, there was reason to believe that Mr. Magney lacked

·     capacity to consent or reject medical treatment, and reason to believe that his wife lacked
capacity to act as his agent. In this conte .t, and.under the specific circumstances of this
case, it was proper for APS to seek judicial review to ensure and honor the patient's wishes·. Nonetheless, notwithstanding that she was underinvestigation into serious

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Case Number: AI45981

.    allegations of elder abuse against her husband, Judith Magney convinced the court that she was advocating for her husband's right to detennine his medical care: in fact, she was advocating in favor of her interpretation of her husband's wlshes.

The Health Care Deci ions Law anticipates that there may- be situations where an agent and principal are in conflict and, in those situations, the agent's power as the health care decision maker is tenninated. Specifically, Probate Code section 4689 provides:
-··                                                                                                          -
''Nothing in this division authorizes an agent under a power of attorney for health .. care to make a health care decision if the principal objects to the decision. If the
principal objects to the health care decision of the agent under a power of attorney,
·     the matter shall be governed by the law that would apply if therwere no power of attorney for health care." (Prob. Code§ 4690.)

Significantly, in overlooking that an abusive health care surrogate may contradict a principal and/or exert undue influence on the principal to consent or reject medical
 treatment, the opinion of the Court of Appeal in this case is· in direct contradiction with the policy underlying P!obate Code section 4690.
.                                                                                   .                       .
In conclusion,  depablioat-ien-is warranted here because the decision creates a new                       · .,..·.·-··------- legal standard that is contrary to public policy. APS was contacted by a mandated
reporter at the hospital to -investigate an allegation that Ms. Magney allowed her husb3;nd ..
to remain untreated in a bathroom until his medical condition worsened to the point he was near death.

. When her husband was finally admitted to the hospital, Ms. Magney interceded and objected Mr. Magney's clear directive for antibiotic therapy for a heart infection. [2AA 209,214,217,219,224, 226; 4-BRT .] Ms. Magney's status as a health care surrogate does not make her immune from an investigation into the reasons her husband was allowed to remain in the bathroom for several weeks; as well as the reasons why she urged the patient's medical providers to discontinue treatment even as the patient clearly stated he wanted the treatment to continue.

The Health Care Directive did not require APS to allow Mr. Magney to die while investigating questions about Ms. Magney's actions and whether her decisionswere

.                                                                          .
·•  consistent with Mr. Magney's wishes. In fact, it is the intent of the Legislature that APS
 have authoritY to "take any action deemed necessary to protect an elder or dependent adult and correct the situation [so asl to ensure the individual's safety." (Welf. & Inst. .


1    .

I l I





Case Number: Al45981
Page 110

Code, § I 5600(i).) That authority includes the power to seek judicial intervention when a health care surrogate is· under investigation into allegations of abuse and/or negiect.


· Jeffrey S. Blanck
County Counsel, County·of Humboldt

For Humboldt County.Adult Protective Services

Harland Law Firm letter:

December 21, 2016

(707)  725-4426
FACSIMILE:  (707) 725-5738

The Honorable Chief Justice Tani G. Cantil-Sakauye and Associate Justices
Supreme Court of California
350 McAllister Street
San Francisco, California 94102-4797

Re:       Opposition to Request for Depublication
Humboldt County Adult Protective  Services  v. Superior Court (Magney) Case No. S239048 (First District Court of Appeal Case No. A145981) Our File No. 10044.004

To the Honorable Chief Justice Cantil-Sakauye and Associate Justices:

Appellant Judith Magney, widow of the late Dick R. Magney, respectfully opposes the request by the County of Humboldt to depublish Humboldt County Adult Protective  Services  v. Magney, Case No. A145981 (the "Magney Decision").

Before Dick R. Magney's death, Mrs. Magney was her husband's  surrogate under his health care directive at issue in the above-referenced matter.  The ruling by the court of appeal in the.above-referenced  matter is of paramount importance to all persons who have executed a Health Care Directive ("HCD").  The Magney Decision provides legal precedent and guidance to the bench and bar as to what is required to bring a petition to enforce a health care directive; it discusses that it is necessary that there be objective evidence to bring a petition, and it articulates that any person or entity that brings such
a petition and request for temporary orders "ex  parte" must apprise the lower court of
the applicable law and must apprise the court of the true facts in ex parte contacts with the lower court to obtain temporary orders and also before the court of appeal.

The County of Humboldt's ("County") letter is bereft of valid justification for its request for depublication.  Further, the County did not petition for re-hearing before the court of appeal, nor did it petition for review before this court.  The County simply disagrees with the Magney Decision and again reasserts as "facts" (now to the Supreme Court of California) allegations it previously made in its pleadings and at oral argument

in alL proceedings below.  As set forth in the Magney Decision, these assertions by the
County are not "facts "

Mrs. Magney submits that the Magney Decision meets all the standards for certification.   She submits that the Magney Decision significantly guides both the bench and bar as to what is required to bring such an HCD petition and obtain medical powers under the Health Care Decisions Law ("HCDL").  The County has not set forth in its letter requesting depublication how the Magney Decision errs in such a way that it
would mislead the bench and bar if it remained precedent.

The Magney Decision presents a significant discussion of an important legal issue which is of continuing public interest.  While the Magney Decision is likely embarrassing to the County due to the conduct of its agency and counsel being called out in a public setting for what it was, continued publication of the Magney decision
does contribute greatly to California law regarding the importance of the actual terms of the HCDL.  What the appellate court Magney Decision does by its publication is to explain the law regarding HCD: 1) it clarifies and explains what establishes reasonable cause to bring a petition under the HCDL; 2) it clarifies and explains that the rules of evidence applicable to all proceedings also apply to an evidentiary hearing on a petition regarding an HCD; and 3) it clarifies and explains that a petition under the HCDL must be based upon objective evidence and not the subjective intent of the filer of the
petition.  In addition, the Magney Decision clarifies and explains that whoever brings a
petition and request to obtain temporary orders in an ex parte setting must be absolutely candid with the lower court as to the applicable law and facts, and must not
purposefully mislead the lower court as to what the law and facts are.

The Magney Decision also makes a significant  contribution to legal literature by its review of the development of the Health Care Decisions Law, including the legislative history of this law, and its explanation that the purpose of the HCDL is to protect an individual's  fundamental right to make certain end-of-life choices at a time when the individual is competent, and that these choices will control the course of their healthcare should the individual cease to be competent in the end stage of life.

The conduct of the County's employees led the appellate court to find that Mr. Magney's suffering at the hands of the County was "profoundly disturbing" in that the County purposefully misled the lower court as to the applicable law and did not even come close to apprising the court of the true facts when the County obtained, ex parte, the temporary orders removing Mr. Magney's surrogate and ordering Mr. Magney's

doctors  to medicate Mr. Magney against his treating  physicians' recommendations, against  his wishes,  against his HCD, and in contravention to what his family knew his wishes to be.

The County's letter requesting  depublication lacks candor with respect to the record in this matter,  and continues  to level its baseless  allegations  of abuse at Mrs. Magney.   To our knowledge, the baseless  allegations of abuse the County continuously references  in justification of its wrongdoing  have never been proved in any legal proceeding. It is also of note that none of the County's allegations  are relevant  in this matter  under the HCDL, with the legal standard  being whether there is evidence  of an advanced  directive  not being followed.   Simply put, the HCDL should not be a go-to tool in the toolbox  of Humboldt County Adult Protective  Services ("APS")  in its quest to address  allegations of elder abuse.  Had the HCDL anticipated  this use, this County agency could have been included  in the list of the types of parties with standing  under the HCDL.

Rather than using the HCDL, APS remains  able to pursue allegations of elder abuse under the powers conferred  by the Elder Abuse and Dependent Adult Civil Protection  Act (Welfare and Institutions Code §§ 15600- 15675). In the matter underlying  the Magney Decision,  the County's allegations of "phantom" abuse were never acted upon through any petition  under Welfare and Institutions  Code powers. Instead  the County's claim of "phantom" elder abuse was a ruse to obtain court ordered medical control  over Mr. Magney's  healthcare  decisions.  The record  of testimony
before the lower court at the evidentiary  hearing established that the County misused  the HCDL in this matter because the County disagreed  with Mr. Magney's  doctors  regarding his treatment  and believed that what it considered  to be in Mr. Magney's  best interest took precedence over his HCD.  The reality of the facts of this matter also demonstrate that the County disagreed  with the decisions  Mr. Magney made. while competent concerning  his wishes to be allowed to die when his time came.

The County's letter leaves one with the impression that the County wishes depublication of the Magney Decision  because the County would like to continue  have open to it the use of the HCDL as a tool for APS to pursue allegations  of elder abuse. 1

1  Despite the County's protestations to the contrary, during the lower court evidentiary hearing, Mr. Magney's treating physician, Dr. Phan, testified that the APS nurse involved in the ex parte deception had told her that APS had successfully reversed the medical decisions of other patients in like cases before. See Reporter's Transcript at page 83.

It was hoped that, because of the clearly and pointedly articulated findings in the Magney Decision, the County would have abandoned any contemplation of the use of the HCDL as a substitute for the Elder Abuse and Dependent Adult Civil Protection Act, but the County's  letter requesting depublication has dashedthis hope.

Through its letter seeking depublication, the County demonstrates its inability to understand: 1) that it cannot misuse the HCDL and accompanying petition for anything other than enforcing a directive; 2) that the County cannot continue to purposefully mislead the court as to the applicable law and true facts when it brin:gs such a petition and obtains ex parte orders; 3) that the County may address concerns of elder abuse via a petition under the Elder Abuse and Dependent Adult Civil Protection Act and that
such ability is not affected by the Magney Decision; and 4) that the County may petition to conserve a person and, if successful, file a petition as conservator under the HCDL to address an advance directive that is not being followed.

The County must not be given any impression that it is allowed to misuse the HCDL for it's  own agenda and/or mislead the court and interfere with the doctor-patient relationship  because supervisors at APS and legal counsel disagree with the medical opinions of doctors or the HCD made by a person while competent concerning end-of­ life decisions.  By the content and tone ofthe County's letter, depublication of the Magney decision would embolden the County to continue in its conduct, conduct that undercuts the fundamental rights of the citizens subject to its purview, flies in the face of the state of the law in the State of California, and troubled the Humboldt County Court Investigator and the court of appeal so very profoundly.

Respectfully Submitted,

Allison G. Jackson Attorney for Appellant JUDITH C. MAGNEY

Dec 9, 2016

Attorney fees and Magney widow to receive costs, after HumCo already chewed out on appeal, thanks DHHS and County Counsel Blair Angus

Oct 25, 2016

Humboldt County and Deputy County Counsel Blair Angus that got chewed out in a First District Appeal opinion yesterday will likely cost taxpayers over $150 K

Oct 24, 2016

"In sum, Humboldt was not merely negligent in preparing its petition and request for an order compelling medical treatment under the Health Care Decisions Law; it knowingly and deliberately misrepresented both the law and the facts to the trial court. "

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1 comment:

  1. Thank you. Something so very satisfying about having the truth backed up with a high court ruling. Having a county counsel dispute the findings, complain about the effects and wanting the records removed from certification only shows how wrong and small the county's actions were.