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. · ·
,.
'
I.'
.I
Case Number: A145981
Pagel2
. 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
··neglect.
.· 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. · · ·· ·
I
l
i.
I·
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
Pagel4
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
Pagel5
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
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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:"
(Ibid.)
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
12/19/2016 MON
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Case Number: AI45981
PageJ9
. 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. .
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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.
Sincerely,·
· 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
Oct 24, 2016
Previous posts:
http://johnchiv.blogspot.com/2016/12/attorney-fees-and-magney-widow-to.html
http://johnchiv.blogspot.com/2016/10/humboldt-county-and-deputy-county.html
http://johnchiv.blogspot.com/2016/10/in-sum-humboldt-was-not-merely.html
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.
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