Opinion
A165724
11-21-2023
DEPARTMENT OF STATE HOSPITALS, Petitioner, v. THE SUPERIOR COURT OF SAN MATEO COUNTY, Respondent; P.S. et al., Real Parties in Interest.
NOT TO BE PUBLISHED
(San Mateo County Super. Ct. No. PRO119250-A)
STEWART, P.J.
The Department of State Hospitals (DSH) filed this petition for writ of mandate to challenge a trial court order requiring DSH-Napa (Napa) to admit conservatee P.S. on a priority basis. DSH contends the court lacked authority to require it to admit P.S. to a specific facility or within a specific timeframe. On the particular facts of this case, we disagree.
BACKGROUND
I.
Factual Background
P.S. has been a conservatee under the Lanterman-Petris-Short Act (LPS) (Welf. &Inst. Code, § 5000 et seq.) since 2013. He has been diagnosed with schizoaffective disorder and major neurocognitive disorder, and frequently engages in aggressive, assaultive and sexually inappropriate behavior. He suffers from pica, an eating disorder that causes him to eat inedible objects, which has required numerous surgeries and endoscopic procedures to remove objects, resulting in scars, strictures and an "area of thickened small bowel" that put him at "extremely high risk of obstruction requiring surgery or leading to death should he swallow inedible objects."
Further statutory references will be to the Welfare and Institutions Code except as otherwise indicated.
P.S. was placed at Napa in August 2015. In 2019, the trial court granted a petition for habeas corpus filed by P.S.'s attorney and ordered the conservator to transfer P.S. to a new placement in a locked facility. The court ordered that if no placement was immediately available, the public guardian was to move P.S. to the San Mateo Medical Center (SMMC) while continuing to search for a placement. P.S. was admitted to SMMC's inpatient psychiatric unit in September 2019. P.S. exhibited "extreme sexual and violent behavior" both at the time he was discharged from SMMC to Napa in 2015 and since his admission to SMMC in September 2019. Efforts to locate an alternative placement were unsuccessful. P.S. could not be referred to Mental Health Rehabilitation Centers (MHRCs) "due to his frequent aggressive and assaultive behaviors" and pica, because these facilities do not have "the proper staffing and supervision to monitor [him] around the clock." Referrals to state hospitals other than Napa were declined because P.S. did not meet admission criteria. P.S. has remained at SMMC.
P.S.'s 2019 petition alleged that he was being "inappropriately and inhumanely punished for symptoms of his mental illness through shackling, chains, hand restraints, and extensive isolation leading to psychological suffering, physical pain, and deterioration of his mental health condition." Napa's policy was to place P.S. in "mittens" and "wrist-to-waist restraints" for a minimum of seven days after a swallowing incident or violence, until staff concluded they could safely be removed; during these periods, at night the mittens and restraints would be removed and P.S. would be placed in a "locked seclusion room." According to DSH, these measures were taken for safety, not as punishment.
A referral to Metro State Hospital was delayed during the COVID-19 pandemic and then denied in April 2021 due to P.S. having a sexual offense in his history. A referral to Patton State Hospital met with no response, but that facility's admission criteria exclude P.S. because the facility treats only patients "forensically and civilly committed" by the courts. P.S. also does not meet the criteria for admission to Atascadero State Hospital, which accepts only referrals under Penal Code sections 1370 [incompetent to stand trial] or 1026 [not guilty by reason of insanity]. A referral to Coalinga State Hospital was declined because it provides treatment only to patients who are "court ordered and are sexually violent predators."
The psychiatric unit where P.S. has been placed since 2019, referred to as "3AB," is an acute psychiatric unit that, according to the Deputy Director of Acute Psychiatric Services at SMMC, is not "designed for long-term residence of patients with severe behavioral disorder such as [P.S.]" and "not an appropriate environment" to meet his healthcare needs and consistently provide "a safe environment in which he cannot cause harm to self or to others." The unit has had to adopt "[h]ighly restrictive measures" to keep P.S. and staff safe, including restricting him to a "small area" on the unit where he has no contact with other patients, with "continuous 24/7 1:1 'eyes on observation' by a hospital staff and a security guard" who must remain within "arm's length" of P.S. at all times. P.S. cannot participate in group activities due to his "unpredictable" and "violent" behavior, must wear a hospital gown at all times because in the past he has hidden objects in his clothes which he then used to harm himself or others, and cannot use cutlery due to his "self-harm" swallowing behavior. P.S. has spit on a staff member, punched a security guard in the face, threatened to" 'check'" another and hit and scratched another. His attending psychiatrist documented 10 incidents of inappropriate sexual behavior, including multiple episodes of exposing himself while masturbating in front of female staff, and over a dozen incidents of swallowing objects including a straw, a nicotine cartridge, a fork, a pen, paper cups, a package of plastic peanuts and a head he broke off a CD player. Two of these incidents required surgical intervention.
In addition to problems with maintaining safety for P.S. and others and providing treatment to P.S., SMMC's care of other patients was affected by P.S.'s placement there. The need to physically separate P.S. from other patients required closing off from the unit an area that could otherwise house about four patients. Due to construction required for correction of deficiencies identified in an accreditation survey, SMMC had to close sections of 3AB in phases and, in August 2021, all patients were moved to the A side of the unit. The area was designed to house 17 patients, but P.S.'s "high risk for violence and unpredictable behavior" required dedication of an area for him comprising almost a quarter of the bed space. In addition to reducing the space available to other patients, this meant the unit could admit three to four fewer patients than usual, which negatively affected SMMC's emergency services and increased wait time for admissions. The situation was particularly problematic with respect to COVID exposure risks.
III.
Current Writ Proceeding
On September 14, 2021, the public guardian filed a motion to dissolve the 2019 writ of habeas corpus in order to allow P.S. to be referred to Napa, arguing that continued placement at SMMC was untenable, alternative placements had proven impossible and Napa was the least restrictive placement available. Based on evidence from the trial on P.S.'s habeas petition, the public guardian argued that Napa had larger facilities and more space than SMMC, more therapeutic modalities and more recreational opportunities.
The court found that the public guardian had "properly assessed there is no less restrictive level of care in the community and that the appropriate present level of care is a referral to the Department of State Hospitals, Napa State Hospital, specifically." On October 15, 2021, the court granted the order for placement and set reviews to "ensure upon placement that [P.S.] is not subjected to unreasonable restraint measures due to his mental illness."
The court treated the motion as one for a "judicial order for the least restrictive and appropriate present level of care pursuant to" section 5358.7 and found that SMMC Unit 3AB was not the least restrictive placement for P.S. at that time.
On October 20, 2021, an application packet was submitted to Napa for P.S.'s readmission. Napa responded that P.S. was on the waitlist, "somewhere i[n] the high 90's," and the wait list was "approximately 2.5 to 3 years long."
Over the ensuing months, efforts were made to pursue a "fast-track acuity admission." SMMC staff requested and received information from Napa as to the necessary documentation, and an "acuity admission package" was submitted to Napa on January 24, 2022, that described P.S.'s on-going "imminent risk of death or severe injury due to his mental illness" despite the "extraordinary yet unsustainable measures" taken by SMMC to maintain his safety and the safety of others. The acuity request was denied without explanation on February 2, 2022. In response to further inquiry, Napa's Clinical Administrator stated that the denial was "based on lack of supporting medical or nursing documentation to warrant an expedited admission."
On February 4, 2022, the public guardian filed a status report requesting that the court set an order to show cause hearing for Napa to show why P.S. should not be admitted on a priority basis in light of the court's previous finding that Napa was the least restrictive appropriate placement and the public guardian's evidence that continued placement at SMMC was untenable. On February 8, the court found that Napa remained the "least restrictive and appropriate . . . present level of care" and P.S. "pose[d] an imminent risk of death or severe injury," and issued the order to show cause.
After a meeting in April 2022, counsel for DSH provided the parties with Napa's description of the standard it uses to review priority admissions requests and explanation that P.S.'s application was denied because there was "no expected treatment benefit by prioritizing [his] admission" to DSH-Napa based on the documentation provided. Napa believed P.S. was at lower risk at SMMC because SMMC was "taking greater measures than DSH-Napa is capable of." Counsel for DSH noted that because the county's contract with DSH does not provide for acuity admissions, DSH's review of the application was entirely discretionary. SMMC then initiated the first level of the appeals process under the contract, which resulted in another denial based on there being no expected treatment benefit from prioritizing admission.
As will be explained, state law requires counties to contract annually with DSH for use of state hospital beds. (§ 4331.)
After a hearing on June 2, 2022, the trial court ordered Napa to admit P.S. "on a priority basis forthwith," with his transfer to be effectuated by 5:00 p.m. on September 16, 2022. The court ordered Napa to pay sanctions of $1,500 for failure to admit P.S. "within a reasonable amount of time," with these sanctions "stayed and discharged" upon his transfer to Napa on or before September 16, 2022.
DSH requested certification pursuant to Code of Civil Procedure section 166.1 and a stay of the June 2, 2022 order pending writ review. The public guardian opposed both requests. On July 6, 2022, the court stayed its June 2 order and certified that "the controlling questions of law in the Order are issues as to which 'there are substantial grounds for difference of opinion' pursuant to Code Civ. Proc., § 166.1."
"Upon the written request of any party or his or her counsel, or at the judge's discretion, a judge may indicate in any interlocutory order a belief that there is a controlling question of law as to which there are substantial grounds for difference of opinion, appellate resolution of which may materially advance the conclusion of the litigation. Neither the denial of a request for, nor the objection of another party or counsel to, such a commentary in the interlocutory order, may be grounds for a writ or appeal." (Code Civ. Proc., § 166.1.)
DSH filed the present petition for writ of mandate in this court on August 1, 2022, and, on August 4, filed a notice of appeal (A165759). We issued an order to show cause in the present case on November 22, 2022. On March 8, in accordance with the parties' stipulation and joint application, we stayed the appeal in A165579 pending resolution of this mandamus case.
DISCUSSION
I.
The Public Guardian's Demurrer Cannot Be Sustained.
The public guardian demurs on the ground that the petition fails to state a justiciable basis for review by writ of mandate. Specifically, the public guardian argues that DSH has not met its burden of showing either that irreparable injury will result if the writ is not issued or that the trial court abused its discretion or failed to perform a mandatory duty.
The public guardian's return includes both its demurrer and its answer to the petition. (Code Civ. Proc., § 1089; Cal. Rules of Court, rule 8.487(b).)
"Mandamus is appropriate 'where there is not a plain, speedy, and adequate remedy, in the ordinary course of law.' (Code Civ. Proc., § 1086.)" (Robbins v. Superior Court (1985) 38 Cal.3d 199, 205.) "Conditions prerequisite to the issuance of a writ are a showing there is no adequate remedy at law . . . and the petitioner will suffer an irreparable injury if the writ is not granted." (Los Angeles Gay &Lesbian Center v. Superior Court (2011) 194 Cal.App.4th 288, 299-300.)
We necessarily determined there was no "plain, speedy, and adequate remedy, in the ordinary course of law" when we issued the order to show cause. (Robbins v. Superior Court, supra, 38 Cal.3d at p. 205; Pacific etc. Conference of United Methodist Church v. Superior Court (1978) 82 Cal.App.3d 72, 80-81.)
Issuance of the OSC also reflects our conclusion that DSH adequately showed it would suffer irreparable injury if the writ was not granted. To the extent further discussion of this point is required, if DSH's position on the merits is correct, the court's order would erroneously interfere with DSH's admissions policies and practices, delay admission of patients ahead of P.S. on the waitlist, and force DSH to add to an already overcrowded system, jeopardizing the safety and treatment of other patients and DSH's compliance with licensing requirements such as staff to patient ratios. Considering the treatment needs of the population DSH serves, these are significant and immediate concerns.
Contrary to the public guardian's argument, DSH does not lack standing to assert irreparable harm on behalf of the LPS conservatees on the waitlist ahead of P.S. While a third party generally does not have standing to assert a violation of someone else's rights, "an exception to this general rule applies when' "(1) the litigant suffers a distinct and palpable injury in fact, thus giving him or her a concrete interest in the outcome of the dispute; (2) the litigant has a close relationship to the third party such that the two share a common interest; and (3) there is some hindrance to the third party's ability to protect his or her own interests. [Citations.]" [Citation.]'" (People ex rel. Becerra v. Superior Court (2018) 29 Cal.App.5th 486, 499-500, quoting Yelp Inc. v. Superior Court (2017) 17 Cal.App.5th 1, 7.) These requirements are surely met here. DSH's own interests in the operation of its facilities are at issue. DSH shares a common interest with LPS conservatees on the waitlist in that DSH seeks to adhere to its first-come, first-served admissions policy and individuals on the waitlist would be prejudiced by a requirement that DSH admit P.S. ahead of those who have been waiting. And individuals on the waitlist have no obvious means of protecting their own interests in this regard, as they are not likely to be aware of the court order requiring priority admission for P.S.
Finally, the public guardian's argument that DSH has not met its burden of showing the trial court abused its discretion or failed to perform a mandatory duty so as to warrant relief in mandamus is, in effect, an argument on the merits of the dispute. Where, as here, a demurrer is based on failure to state a claim on which relief can be granted "and only issues of law are presented by the petition, there is no need to consider the return and demurrer separately." (StorMedia Inc. v. Superior Court (1999) 20 Cal.4th 449, fn. 7.)
II.
The Trial Court Did Not Abuse Its Discretion or Exceed Its Authority in the Circumstances of This Case.
A. Governing Principles
As relevant here, the LPS provides for appointment of a conservator for a person who is "gravely disabled as a result of a mental health disorder." (§ 5350.) P.S. was found to be gravely disabled under section 5008, subdivision (h)(1)(A), which defines "gravely disabled" as a "condition in which a person, as a result of a mental health disorder, is unable to provide for his or her basic personal needs for food, clothing, or shelter." The conservator for such a conservatee, when ordered by the court, "shall place his or her conservatee . . . [¶] in the least restrictive alternative placement, as designated by the court." (§ 5358, subd. (a)(1)(A).) "The placement may include a medical, psychiatric, nursing, or other state-licensed facility, or a state hospital, county hospital, hospital operated by the Regents of the University of California, a United States government hospital, or other non-medical facility approved by the State Department of Health Care Services or an agency accredited by the State Department of Health Care Services." (§ 5358, subd. (a)(2).)
Section 5008 includes two other definitions of "gravely disabled": a "condition in which a person, has been found mentally incompetent under Section 1370 of the Penal Code" and a number of enumerated facts exist (§ 5008, subd. (h)(1)(B)) and a "condition in which a person, as a result of impairment by chronic alcoholism, is unable to provide for his or her basic personal needs for food, clothing, or shelter." (§ 5008, subd. (h)(2).)
The court "shall consider available placement alternatives" and, "[a]fter considering all the evidence the court shall determine the least restrictive and most appropriate alternative placement for the conservatee." (§ 5358, subd. (c)(1).) "[I]f the conservatee is not to be placed in his or her own home or the home of a relative, first priority shall be to placement in a suitable facility as close as possible to his or her home or the home of a relative. For the purposes of this section, suitable facility means the least restrictive residential placement available and necessary to achieve the purpose of treatment." (Ibid.)
State law requires counties to reimburse DSH for the use of state hospital beds. (§ 4330.) Alone or in combination with other counties, counties are required to contract annually with DSH "for the number and types of state hospital beds that the department will make available to the county or counties during the fiscal year." (§ 4331, subd. (a).) No increase in the number of beds provided during a fiscal year is permitted unless the contract is amended by mutual agreement. (§ 4331, subd. (c).) Contracts must specify a number of terms, including "procedures for admission and discharge." (§ 4332, subd. (a)(4).)
Contrary to repeated characterizations in DSH's briefs, section 4331 is not part of the LPS. The LPS comprises Part 1 of Division 5 (Community Mental Health Services) of the Welfare and Institutions Code. Section 4331 appears in Division 4 (Mental Health), Part 2 (Administration of State Institutions for the Mentally Disordered), Chapter 4 (County Use of State Hospitals).
B. The Memorandum of Understanding (MOU)
San Mateo County contracts for DSH beds through a joint powers authority, California Mental Health Services Authority (CalMHSA), that acts as administrative agent for participating counties. The contract relevant to the present case is the MOU executed by DSH and CalMHSA for the term July 1, 2021, through June 30, 2022.
The MOU states the parties' acknowledgment that "prior MOUs, incorporated herein by reference . . . included an agreement to limit" LPS referrals "to a maximum of 556 beds at any one point in time," and that exceeding this maximum "limits DSH's ability to admit new LPS [p]atients." As of March 2022, there were "a total of 736 LPS and other conservatee patients including Murphy conservatees housed at DSH"; the petition states that number had dropped to 692 as of July 29, 2022, and to 600 as of November 2022. The MOU expressly provides for efforts to reduce counties' usage of DSH beds, stating that "CalMHSA/DSH shall make best efforts to develop a bed management protocol by July 1, 2022, for the purpose of aligning the number of beds allocated to LPS patients to the current maximum threshold of 556" and enumerating several elements to be included in the management protocol, including that it "shall also identify a plan to reduce the counties bed usage to 556 and describe how DSH and the counties will ensure that counties do not exceed the 556 beds in the future."
The MOU provides: "It is acknowledged by all parties to this MOU that prior MOUs, incorporated herein by reference, including annual renewals, included an agreement to limit referrals for civil commitment by all Counties, pursuant to the LPS Act, which included Murphy Conservatorships, to a maximum total of 556 beds at any one point in time. It is further acknowledged that exceeding this maximum total beds limits DSH's ability to admit new LPS Patients to beds, and persons committed to DSH pursuant to Penal Code sections 1026, 1370, and 2960 et.seq."
These numbers appear to refer to all DSH facilities collectively, not just Napa. As of April 2022, approximately 34 of the LPS conservatees at Napa were ready for discharge but had not been transferred by their conservators.
The MOU provides that "[h]ospital admissions, intra-hospital transfers, inter-hospital transfers, referrals to outside medical care, and discharges shall be in accordance with the admission and discharge criteria established by court order, statute, or DSH." "Denial of admission may be based on" specified factors including "the Hospital's lack of bed capacity." The MOU includes an appeal process for admissions under which the ultimate decision is made by DSH if agreement between the hospital and county is not reached at several lower levels.
C. Priority Admissions
Neither the MOU nor the LPS and regulations adopted under it (Cal. Code Regs., tit. 9, § 800 et seq.; § 5400) expressly address priority admissions for LPS conservatees found gravely disabled under section 5008, subdivision (h)(1)(A). According to the declaration of Napa's Clinical Administrator, Napa admits conservatees on a first-come, first-served basis, as beds become available when a patient is transferred out of the facility. The waitlist for LPS conservatees is separate from the waitlist for forensic patients such as individuals found incompetent to stand trial. There is no written policy for priority placement of LPS conservatees based on psychiatric acuity but "[t]o the extent DSH is able to accommodate this request, it does so" where the conservatee meets the definition of psychiatric acuity applicable to individuals committed to DSH as incompetent to stand trial (Regs., § 4700(c)) and documentation demonstrates that priority placement at DSH "will result in more effective treatment to manage the acuity risk."
All further references to regulations are to title 9 of the California Code of Regulations, which will be cited as "Regs."
The regulations applicable to individuals who are committed to DSH as incompetent to stand trial (§ 5008, subd. (h)(1)(B)) provide that the date of admission may be affected by the person's "psychiatric acuity." (Regs., § 4710, subd. (a)(2).) Specifically, while DSH is required to admit those committed as incompetent to stand trial "according to the date the court admitted the individual to" DSH, the "[a]ctual" date of admission may change upon consideration of" several factors including "[w]hether the individual exhibits psychiatric acuity which may indicate the need for admission to a facility, nothwithstanding the date the court committed the individual" to DSH." (Id., § 4710, subd. (a).)" 'Psychiatric acuity' means that an individual's mental illness is causing complications which put the individual at risk of death or serious injury while awaiting admission." (Id., § 4700, subd. (c).)
D. Analysis
DSH argues that the trial court lacked authority to order it to admit P.S. on a priority basis by September 16, 2022. As DSH sees it, the LPS does not authorize trial courts to order a treatment facility to admit a particular conservatee or provide for priority placement. Instead, trial courts have authority only to determine the level of treatment for a conservatee, after which the conservator is responsible for finding a specific placement; if the preferred placement is not available, it is the conservator's duty to find a suitable alternative. Affirming the trial court's order, DSH maintains, would disrupt the proper functioning of the LPS system; undermine the Legislative directives that conservators are responsible for placement of their conservatees and that priority must be given to placement within the community (§§ 5358, subd. (c)(1) ["first priority" to placement in "suitable facility as close as possible to his or her home or the home of a relative"]; 5120 [state policy that "care and treatment of mental patients be provided in the local community"]); force DSH to either overcrowd its facilities, jeopardizing the safety and treatment of all patients and violating licensing requirements, or delay admissions of LPS conservatees already on the waitlist ahead of P.S.; and limit DSH's ability to admit patients it is statutorily required to admit, such as individuals found incompetent to stand trial.
DSH's arguments treat the trial court's order as fundamentally altering the process established by the LPS for out-of-home placement of gravely disabled conservatees. In fact, however, the order affects the placement of a single gravely disabled conservatee whose mental health disorder and resulting behavior make a single DSH facility-Napa-the suitable, least restrictive placement for him. The question posed by this petition is not whether trial courts can routinely order a particular patient placed in a particular facility by a particular time; surely they cannot. Rather, the question is whether the trial court exceeded its authority or abused its discretion in ordering the priority admission to Napa of one specific gravely disabled conservatee with a unique set of disabilities.
1. The LPS Does Not Prohibit Trial Courts from Ordering a Specific Placement When Necessary.
a. Placement Level
Contrary to DSH's argument, we find nothing in the LPS that prohibits a trial court from ordering a specific placement in appropriate circumstances. DSH argues it is "black letter law" that courts must determine only the level of placement and conservators must find "appropriate and available placement within that level." The only authorities DSH cites-section 5358, subdivision (c)(1), and Conservatorship of Amanda B. (2007) 149 Cal.App.4th 342, 351 (Amanda B.)-do not support such a hard and fast rule.
As earlier noted, section 5358 directs the trial court to "determine the least restrictive and most appropriate alternative placement for the conservatee," giving "first priority shall be to placement in a suitable facility as close as possible" to the home of the conservatee or a relative. (§ 5358, subd. (c)(1), italics added.) "[S]uitable facility" is defined as "the least restrictive residential placement available and necessary to achieve the purpose of treatment." (Ibid.) The statute directs the conservator, "[w]hen ordered by the court," to place the conservatee "in the least restrictive alternative placement, as designated by the court." (Id., subd. (a)(1)(A).) Section 5358, subdivision (a)(2), lists various types of facilities that may be a "placement," such as a "state-licensed facility" or a state or county hospital.
Since there may be multiple facilities that provide a level and type of care qualifying as "suitable" and "least restrictive" for a given conservatee, the placement process will normally consist of the court determining the level of care and the conservator then finding a specific placement at the designated level. The statutory language, however, does not expressly limit the court's determination of placement to level. That this language does not prohibit the court ordering a specific placement is further indicated by subdivision (c)(3) of section 5358, which provides that "if requested, the local mental health director shall assist the conservator or the court in selecting a placement facility for the conservatee." (Italics added.)
Amanda B. confirms that the trial court-not the conservator-has "the responsibility to set the appropriate level of treatment." (Amanda B., supra, 149 Cal.App.4th at pp. 351-352.) In that case, the trial court's order stated that the" 'least restrictive level of placement available and necessary to achieve the purpose of treatment for Amanda . . . is a Locked Facility or Board and Care." (Id. at p. 351.) Amanda B. held the trial court erred: The order was "an ambiguous designation because it indicates two different levels of care" and the "statutory scheme envisions that the court will set a single level of placement as the least restrictive placement." (Id. at p. 352.) Nothing in this holding that the trial court cannot leave it to the conservator to determine the level of care precludes the trial court from determining that the appropriate level of care can only be provided by a specific facility.
b. Availability
Focusing on the definition of "suitable facility" in section 5358, subdivision (c)(1), as the "least restrictive residential placement available and necessary to achieve the purpose of treatment" (italics added) DSH argues that if a particular facility does not have open beds, it is not "available" and therefore not "suitable" for placement. DSH argues that section 4331 requires state hospital bed availability to be determined by contract and, because it is already providing more than the maximum number of beds specified in the MOU, it has no obligation to admit P.S. and cannot be ordered to do so. When its beds are unavailable, DSH maintains, it is the conservator's duty to find another placement within the level of care and treatment determined by the court.
DSH's arguments brush over several points. First, DSH assumes "available," for purposes of defining "suitable facility" under section 5358, subdivision (c)(1), means immediate bed availability. Where multiple facilities are otherwise suitable, this makes sense. But, as this case illustrates, availability fundamentally depends on admissions criteria. A facility that cannot admit a given patient under its admission criteria is unavailable even if it has open beds, while a facility that is "available" in terms of admissions criteria may not be immediately available if it does not have open beds. In the latter case, bed availability relates to the timing of a placement.
Here, when P.S. was transferred out of Napa in 2019 after prevailing on his habeas petition, his placement at SMMC was intended to be a temporary solution while the conservator sought a different locked facility. According to the evidence in the record, he could not be referred to MHRCs because they lack the staffing necessary for the high level of supervision he needed, and referrals to state hospitals other than Napa were denied because P.S. did not meet their admissions criteria. These facilities were categorically unavailable regardless of whether they currently had patient beds available. Napa, by contrast, was "available" in the sense that P.S. came within its admissions criteria, but unavailable immediately as it did not currently have space for him. When the trial court authorized the public guardian to refer P.S. to Napa in October 2021, it presumably considered Napa "available" not necessarily as a matter of bed availability but because it was the "least restrictive residential placement . . . necessary to achieve the purpose of treatment" (§ 5358, subd. (c)(1)) that could admit P.S. And, in fact, Napa accepted P.S.'s referral and placed him on the wait list.
DSH's reply maintains that P.S. was not accepted for admission, explaining that eligibility for admission is determined once a conservatee has moved to the front of the waitlist. This procedure makes sense, DSH argues, because a conservatee's condition and/or placement may change while on the waitlist; DSH notes that it periodically contacts conservators to determine if the conservatee still requires treatment at a DSH facility and is sometimes advised, once the conservatee is at the front of the line, that the conservatee has been placed elsewhere. Aside from its statement about periodically contacting conservators regarding waitlisted conservatees' need for treatment, DSH cites no evidence supporting these assertions. With a years-long waitlist, it is obvious that the appropriateness of admission must be confirmed at the point actual admission is imminent. But this is not the same thing as saying eligibility for admission is not determined when a conservatee is placed on the waitlist. The fact that DSH facilities other than Napa denied referrals for P.S. altogether because he did not meet their admissions criteria suggests that accepting the referral and placing P.S. on the waitlist indicates he was eligible for admission in terms of meeting admissions criteria and, presumably, would be admitted when he reached the front of the waitlist if his condition had not changed. But, as far as we are aware, there is no evidence in the record concerning the significance of accepting a referral with respect to eligibility for admission.
Second, DSH ignores the fact that the trial court made factual determinations that a single facility-Napa-could provide the appropriate level of care and treatment for P.S., and that his current placement at SMMC was not the least restrictive placement for him. DSH has not challenged these findings as unsupported by substantial evidence and our review confirms they are amply supported by the evidence presented to the trial court.
That evidence included the declaration of P.S.'s attending psychiatrist at SMMC, who opined that P.S. "requires state hospital placement for his safety and the safety of others" and described the "numerous dangerous acts of self-harm and harm to others during his 22-month stay at 3AB" upon which her opinion was based. The deputy director of SMMC's acute psychiatric service explained that it is an "acute" unit "not designed for longterm residence of patients with severe behavioral disorders"; that P.S. had failed in the unit's "services milieu" due to his failure to engage in his treatment plan, belligerence, sexually inappropriate behavior, verbal threats, physical assaults and self-harm by swallowing foreign objects; and that after more than a year, P.S. had "not made any improvements." In attempting to keep P.S., staff and other patients safe, SMMC was required to take measures that were highly restrictive, including confining P.S. to a "small space on the unit" with constant supervision by a staff member and a security guard within arm's length, that did not allow him to have any privacy, participate in therapeutic activities, interact with other patients, wear his own clothes, or use eating utensils.
As to Napa specifically, the evidence demonstrated that no other state hospital was a viable alternative placement. According to the declaration of Napa's Clinical Administrator, Napa is one of only two DSH facilities that accepts LPS referrals. The other, DSH-Metropolitan, is precluded by the terms of its MOU with the city of Norwalk from admitting a conservatee whose history includes a sexual offense. DSH's assertion that P.S. "is already in an appropriate-level placement, a locked facility that is meeting his treatment needs" flies in the face of the trial court's findings, as does its argument that Napa is "merely one of several treatment providers from which a conservator may choose in the non-exhaustive list reflected in Welfare and Institutions Code section 5358, subdivision (a)(2)."
P.S. was referred to other state hospitals but denied admission because he did not meet their admissions criteria.
DSH suggests "[t]he issue" is that the conservator "prefers" Napa in part because SMMC needs to renovate its facility. As earlier noted, the deputy director of SMMC's acute psychiatric unit described the need to close parts of the unit to allow reconstruction required by an accreditation survey, which caused a reduction in bed capacity that was exacerbated by the need to dedicate separate space to P.S. Even if the adverse effects of P.S.'s placement at SMMC on that facility's ability to treat other patients are not relevant to its appropriateness as a placement for P.S., the evidence clearly supports the trial court's conclusions that SMMC is not an appropriate placement based on P.S.'s needs. Moreover, whatever the conservator "prefers," the trial court found that Napa "specifically" is the least restrictive placement for P.S. DSH thus misstates the issue in arguing that the public guardian is abrogating its statutory responsibility to find a suitable placement by insisting that P.S. must be admitted to DSH because the public guardian has determined this to be the appropriate placement.
2. The Trial Court's Order Does Not Violate the MOU.
DSH's arguments based on the MOU are not persuasive in the circumstances of this case. The MOU recites the parties' acknowledgement that prior MOUs included an agreement to limit referrals for LPS civil commitments to 556 beds at any one point in time and that exceeding this maximum limits DSH's ability to admit new LPS patients. It also states the parties' agreement to "make best efforts" to develop a protocol and plans for reducing the counties' bed usage to 556 and ensuring the counties do not exceed that number in the future. At the time of the trial court proceedings, however, DSH was providing 736 beds; according to DSH's reply to the petition, this number had dropped to 600 by November 2022.
DSH takes the position that the MOU limits LPS admissions to 556 and, once that number was reached, DSH was no longer an "available" placement option. This argument ignores both the precise language of the MOU and the parties' conduct under it. The MOU expressly acknowledges that despite past MOUs agreeing to limit LPS referrals to 556, DSH has admitted considerably more than that number, and it states the parties' agreement to "make best efforts" to develop a protocol for reducing the number of beds used to 556, including a description of how the parties will ensure that number is not exceeded in the future. This language does not describe an absolute maximum; it confirms that the stated maximum has not been strictly adhered to in the past and describes an intention to undertake efforts to "align" usage with the stated maximum in the future. Further, contrary to DSH's assertions, the fact that the parties' past conduct under MOUs providing for a 556-bed limit resulted in admissions considerably in excess of that number is relevant. "The terms of a writing can also 'be explained or supplemented by course of dealing or . . . course of performance.' (Code Civ. Proc., § 1856, subd. (c).)" (Southern Pacific Transportation Co. v. Santa Fe Pacific Pipelines, Inc. (1999) 74 Cal.App.4th 1232, 1240-1241.) A determination that a single specific LPS conservatee should be admitted to Napa because it is the sole suitable, least restrictive placement is not necessarily inconsistent with, and does not materially undermine, the MOU's stated agreement to work toward reduction of an existing excess of beds allocated to CalMHSA.
The public guardian contends the trial court's order is in fact authorized by the MOU provision stating that hospital admissions "shall be in accordance with the admission and discharge criteria established by court order, statute, or DSH." The public guardian sees this provision as reflecting the parties' agreement that a court may order admission of a conservatee to DSH as the court did here. DSH responds that this provision "presumes a lawful court order that necessarily comports with the limits of the court's authority as clearly established by the plain language of the LPS," and that the LPS and the MOU, "whose existence and validity is exclusively conferred by the LPS Act, make[] clear that the court lacked any authority" for its order. DSH is mistaken in asserting that the LPS provides for and governs the scope of contracts such as the MOU: As we have said, section 4331 is not part of the LPS. In any event, as we have rejected DSH's view that the trial court exceeded its authority under the LPS and the MOU, it is unnecessary for us to determine whether, as the public guardian claims, the quoted provision of the MOU affirmatively authorized the court's order. Similarly, it is unnecessary for us to address DSH's argument that the trial court violated the separation of powers doctrine by imposing requirements on DSH that are inconsistent with the statutorily mandated MOU.
3. The Order for Admission on a Priority Basis Was Within the Trial Court's Authority and Discretion.
According to DSH's evidence, Napa normally admits from its waitlist on a first-come, first-served basis and there is no written policy for acuity admissions of LPS conservatees, but "on rare occasions" it "coordinates with conservators to grant priority admission based on psychiatric acuity when possible." Napa applies identified standards in processing acuity admissions, using the definition of psychiatric acuity applicable to individuals committed to DSH as incompetent to stand trial (Regs., § 4700(c)) and requiring documentation demonstrating that priority placement at DSH "will result in more effective treatment to manage the acuity risk." When contacted about a priority admission for P.S., Napa advised what information was needed and processed the application, but ultimately denied it.
DSH's argument that the trial court lacked discretion to order it to admit P.S. ahead of others on Napa's waitlist again ignores the specific and limited circumstances of this case. The trial court's October 15, 2021 order authorized the conservator to refer P.S. to Napa based on findings that SMMC was not the least restrictive placement at that time, there was no less restrictive level of care in the community and DSH, Napa "specifically," was the appropriate level of care. It was only when P.S. remained at SMMC eight months later due to Napa's denial of the request for an acuity admission that the court ordered Napa to admit P.S. on a priority basis. Napa's reason for denying the acuity admission-that there was "no expected treatment benefit by prioritizing his admission" and he was at lower risk at SMMC because of the safety measures taken there-was contrary to the trial court's finding that SMMC was not an appropriate placement. Its argument that it had no obligation to admit P.S. and it was solely the conservator's duty to find an alternative placement ignores the trial court's express determination that the conservator had properly assessed there was no other appropriate placement.
While neither the LPS nor the MOU expressly address the timing of conservatees' placement, both must be interpreted as contemplating a reasonable time. Given that a conservatorship is established annually, and placement decisions are based on the conservatee's current condition and circumstances, it is apparent long delays in placement satisfying the requirements of the LPS would be incompatible with legislative intent. With respect to the MOU, contract principles dictate that "[i]f no time is specified for the performance of an act required to be performed, a reasonable time is allowed. (Civ. Code, § 1657.)" (Henry v. Sharma (1984) 154 Cal.App.3d 665, 669; Palmquist v. Palmquist (1963) 212 Cal.App.2d 322, 331.) Here, the trial court determined that P.S.'s placement at SMMC did not meet the requirements of the LPS and the only placement that would do so was Napa. We have concluded that its order for placement at a specific facility was within its authority under the LPS and not precluded by the MOU. Its June 2022 order for priority placement, intended to effectuate its earlier order, was within the court's inherent authority to enforce its orders. (Security Trust &Savings Bank v. Southern Pac. R. Co. (1935) 6 Cal.App.2d 585, 589; Machado v. Myers (2019) 39 Cal.App.5th 779, 796, fn. 13; Code Civ. Proc., § 128.)
DSH contends the trial court did not have "unfettered discretion to impose its will for perceived equitable purposes absent express statutory authority." The cases it relies on are inapposite. In Nelson v. Anderson (1999) 72 Cal.App.4th 111, 129, the trial court reduced the prevailing party's costs based on its view of fairness to the losing party. Nelson held the trial court had no discretion to deny costs to the prevailing party absent statutory authority because Code of Civil Procedure section 1032, subdivision (b), provides that a prevailing party is" 'entitled as a matter of right'" to recover costs" '[e]xcept as expressly provided by statute.'" (Nelson, at p. 129.) D.E. v. Superior Court (2003) 111 Cal.App.4th 502, 511, held a juvenile court lacked authority to continue a dispositional hearing beyond the express statutory time limit in order to attempt to permit an incarcerated parent to be present at the hearing. People v. Koback (2019) 36 Cal.App.5th 912, 927, held trial courts have no discretion to sentence a defendant contrary to statutory directives.
Unlike the situations in these cases, the trial court here did not make orders contravening the express requirements of governing statutes. To the contrary, the trial court's order was consistent with the requirement of the LPS that a conservatee be placed in the least restrictive placement "as designated by the court." (§ 5358, subd. (a)(1); Conservatorship of K.P. (2021) 11 Cal.5th 695, 706 ["goal in construing the LPS Act is to effectuate the Legislature's intent"].)
DISPOSITION
The petition for writ of mandate is denied.
We concur. RICHMAN, J. MILLER, J.