Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. MH102141, Howard H. Shore, Judge.
O'ROURKE, J.
Marcia G. appeals from a judgment determining that she had no capacity to give or refuse written informed consent to electroconvulsive therapy (ECT) under Welfare and Institutions Code section 5326.7, subdivision (f), which is part of the Lanterman-Petris-Short Act (hereafter LPS Act, § 5000, et seq.). Marcia contends there is insufficient evidence to demonstrate, by clear and convincing evidence, that she did not have the capacity to consent to that treatment. She also contends the trial court violated her due process rights to a fair hearing by acting in a "dual capacity" as judge and advocate, and that it demonstrated bias toward the doctor recommending ECT. Because Marcia underwent the challenged ECT treatment prior to filing her opening brief on appeal, we asked her to address the question of whether her appeal is moot. Having reviewed the supplemental briefing and her appellate contentions, we conclude the matter is moot and dismiss the appeal.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Dr. Moyer did not file a respondent's brief. Therefore, we decide this appeal based upon Marcia's brief and the record. (See Cal. Rules of Court, rule 8.220(a)(2).)
Marcia was placed under an LPS conservatorship in March 2008. In February 2009, Marcia's attending physician, Trenton Moyer, M.D., petitioned the court for an evidentiary hearing to determine whether Marcia had the capacity to give written informed consent to ECT. At that hearing, Dr. Moyer testified that ECT was the most effective treatment for her condition, and opined to a reasonable degree of medical certainty that ECT was the least drastic alternative available for her. He testified, however, that Marcia did not have the capacity to give informed consent to the treatment, and while he attempted to explain the information on the consent form to her, she did not understand it, nor was she able to intelligently evaluate it so as to give informed consent. The court ultimately found that Marcia did not have capacity to presently give or refuse to give written informed consent to the treatment.
In April 2009, Dr. Moyer filed a second petition and the court held another evidentiary hearing to determine whether or not Marcia was capable of giving informed consent to further ECT treatments. Over Marcia's counsel's objection, the court questioned Dr. Moyer about Marcia's diagnosis and symptoms, her treatment plan, and past medication and other treatments, and the doctor's efforts to obtain Marcia's consent to ECT. Dr. Moyer testified he did not believe Marcia was able to knowingly and intelligently act on information to give informed consent. Marcia testified that she did not want ECT again because she experienced memory loss, back spasms, nausea, vomiting and headaches. Thereafter, the court found, among other written findings, that Marcia did not have the capacity presently to give or refuse to give written informed consent to ECT. After counsel confirmed that Marcia was under a conservatorship at that time, the court ordered that the public conservator's office give the written informed consent to ECT.
The court's order contains the following findings: "1. The patient was given appropriate notice of the hearing and was present at such hearing with his/her attorney. [¶] 2. The patient's attorney, Roy Short, has no conflict of interest in representing this patient. [¶] 3. The statutory requirements of [Welfare and Institutions] Code [s]ection 5326.7[, subdivision] (f) have been satisfied." [¶] 4. The patient does not have the capacity presently to give, or refuse to give, written, informed consent to electroconvulsive treatment."
DISCUSSION
" ' "[T]he duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it." ' [Citation.]... 'It necessarily follows that when, pending an appeal from the judgment of a lower court, and without any fault of the defendant, an event occurs which renders it impossible for this court, if it should decide the case in favor of plaintiff, to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal.' " (Eye Dog Foundation v. State Bd. of Guide Dogs for Blind (1967) 67 Cal.2d 536, 541; see In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1054; La Jolla Cove Motel and Hotel Apartments, Inc. v. Superior Court (2004) 121 Cal.App.4th 773, 781.) Notwithstanding these principals, a reviewing court may exercise its discretion to resolve an issue rendered moot by subsequent events if the question to be decided is of broad public interest that is likely to recur. (La Jolla Cove,at pp. 781-782.)
Pursuant to our request, Marcia's counsel advises us that Marcia has by this time undergone the challenged ECT treatments, thus technically rendering this appeal moot. Counsel argues, citing this court's decisions in In re Conservatorship of Pamela J. (2005) 133 Cal.App.4th 807 (Pamela J.), Conservatorship of Waltz (1986) 180 Cal.App.3d 722 (Waltz), and In re Conservatorship of Fadley (1984) 159 Cal.App.3d 440 (Fadley), that Marcia's appeal nevertheless presents important issues affecting the public interest and that are likely to recur but escape review. (Pamela J., at p. 815.) She maintains the issues presented here are similar to those in Pamela J., namely, whether the trial court's findings that ECT was necessary and the least drastic alternative were proper and should have been determining factors in finding Marcia did not have the capacity to consent, and whether the court's questioning of Marcia's treating physician, Dr. Moyer, demonstrated partiality or bias toward the doctor's recommendations. Counsel asserts the issues have a "significant impact on a patient's fundamental right to consent or to refuse ECT under the LPS Act" and are "capable of reoccurring and likely to evade review" for both Marcia and other conservatees. According to counsel, the issues will arise again "should an LPS conservatorship again be established for Marcia and ECT is the recommended treatment."
In Pamela J., despite the appeal being technically moot, we proceeded to address whether the patient's presence was required at the evidentiary hearing to determine her capacity to give or refuse ECT treatment, when section 5326.7, subdivision (f) specifically stated that the "patient shall be present and represented by legal counsel" at the hearing. (Pamela J., supra, 133 Cal.App.4th at pp. 813-814, 823.) Because there was no dispute about the underlying factual circumstances, the outcome depended on statutory interpretation, a question of law. (Id. at pp. 823-824; People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432; Coburn v. Sievert (2005) 133 Cal.App.4th 1483, 1492.) We concluded the court erred by proceeding in the patient's absence because her presence "was an essential ingredient to the court's fact-finding process of determining whether she had the capacity to consent or refuse ECT under section 5326.7...." (Pamela J., at p. 826.)
We also addressed and found without merit the patient's contention that the trial court violated her due process right to a fair hearing by an impartial judge by questioning the physician during the hearing; she maintained the court in doing so acted in the "dual capacity as judge and advocate, thus creating the appearance of partiality which negated any appearance of justice...." (Pamela J., supra, 133 Cal.App.4th at p. 826.) We held the trial judge has the right and duty under case law and statute to examine witnesses to assist in ascertaining the truth, not only in cases tried to a jury but also where it sits as the fact-finder as in the case of a hearing to determine a patient's capacity to consent to ECT. (Id. at p. 827.)
Before reaching these conclusions, we pointed out — not for the first time — that a reversal would usually come too late for a patient who appeals a determination of lack of capacity to consent to ECT, and that counsel should request a stay of the lower court's order at the time of filing the appeal. (Pamela J., supra, 133 Cal.App.4th at p. 815, fn. 2, citing Waltz, supra, 180 Cal.App.3d at p. 734 & Lillian F. v. Superior Court (1984) 160 Cal.App.3d 314, 316-317.)
In Fadley, we addressed whether a court could review — in the course of determining a patient's capacity to give informed written consent — the patient's treating physician's decision that ECT was warranted. (Fadley, supra, 159 Cal.App.3d at p. 441-442.) We concluded appellate review was warranted despite the patient already having received the treatments in part because " '[the] statute involved is [relatively] new, [and] there is a paucity of authority and interpretation,... ' " (Id. at p. 445.) Ultimately, we held the trial court erred by making findings that ECT was required and the least drastic available treatment, but that the error was harmless. (Id. at pp. 446-447.)
In Waltz, this court did not expressly address the question of mootness, noting only that the reversal came "too late" for the conservatee, and suggesting that the proper procedure would have been for counsel to request a stay of the lower court's order. (Waltz, supra, 180 Cal.App.3d at p. 734, fn. 14.)
Despite the protections suggested in these prior decisions, Marcia's counsel did not request a stay of the lower court's order before Marcia underwent the ECT treatments that were the subject of the April 2009 order. On appeal, she does not raise a question of statutory interpretation or a general challenge to the trial court's authority to question her treating physician as did the patient in Pamela J., supra, 133 Cal.App.4th 807. The questions raised in Pamela J. are generally relevant to any conservatee facing a recommendation to undergo ECT. Rather, Marcia contends insufficient evidence supports the trial court's finding that she was unable to give informed consent based on the trial court's particular questions and her specific responses at the hearing. Our resolution of these questions uniquely depends on the record before us, including Marcia's testimony. Because it is unlikely that Marcia's testimony will be repeated exactly in a new hearing, we are compelled to disagree that her particular case presents is a matter of public importance or that these issues are likely to recur.
As for Marcia's more general challenges to the trial court's questioning or its scope, those issues of the court's authority to question and the nature of its questions, as we have explained, have already been addressed and resolved in published cases. (Pamela J., supra, 133 Cal.App.4th 807; Fadley, supra, 159 Cal.App.3d at p. 441-442; Waltz, supra, 180 Cal.App.3d 722, 733.) In our view, any opinion by this court as to the sufficiency of the evidence in this case would be advisory, and " '[t]he rendering of advisory opinions falls within neither the functions nor the jurisdiction of this court.' " (Salazar v. Eastin (1995) 9 Cal.4th 836, 860.)
DISPOSITION
The appeal is dismissed as moot.
WE CONCUR: HUFFMAN, Acting P. J.HALLER, J.