Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 78101
Retired Associate Justice of the Court of Appeal, Sixth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
In 1999, defendant Mario Loya was found not guilty by reason of insanity of first degree murder and was committed to the Department of Mental Health (DMH). (Pen. Code, §§ 1026, 187.) He appeals from superior court orders finding him incapable of consenting to medical treatment, and authorizing the involuntary administration of electroconvulsive (shock) treatment (ECT). The parties have stipulated to a reversal of the judgment. We accept the stipulation (Code Civ. Proc., § 128, subd. (a)(8)) and reverse.
PROCEDURAL AND FACTUAL BACKGROUND
In 2009, the Santa Clara County District Attorney filed a “Qawi petition” (In re Qawi (2004) 32 Cal.4th 1) for an order authorizing the involuntary administration of ECT to defendant.
Historically, defendant has responded better to ECT than to medication. He has received two courses of ECT in the last 10 years and had requested it in October 2008 before refusing all treatment. Despite responding well to ECT in the past, defendant “has a history of refusing maintenance treatments which might prolong the positive effects of such treatment.” Defendant’s treating physician and two other doctors agreed that ECT was indicated because medication alone has been insufficient to control his symptoms.
The petition further alleged that defendant lacked the capacity to make an informed choice regarding ECT, was dangerous within the meaning of Welfare and Institutions Code section 5300, and that the involuntary administration of ECT could be ordered by the court “if the requirements of Welfare and Institutions Code section 5326.7 are met” and the “court finds by a clear and convincing evidence that the mental disorder prohibits the patient from... fully understanding the treatment and giving written informed consent.”
Defendant’s attorney filed a written opposition to the petition. In their response, the People argued that the court could order the involuntary administration of ECT, without the consent of a conservator or relative of the patient, if the court conducted a hearing in accordance with In re Qawi and made one of two findings: (1) the involuntarily committed patient is incompetent or incapable of making decisions about his medical treatment; or (2) he or she is dangerous with the meaning of Welfare and Institutions Code section 5300.
On August 27, 2009, the court held a “Qawi hearing” on the People’s petition. At the conclusion of the hearing, the prosecutor stated: “If the court finds that Mr. Loya has capacity, it is his decision. If the court finds he lacks capacity, I think the evidence is sufficient to make that decision for him.” The court found that ECT was an appropriate treatment, and that defendant lacked capacity to consent. Accordingly, the court ordered: “ECT, under the circumstances is an appropriate treatment. [Defendant] lacks the capacity to consent to treatment. [Defendant] is unable to intelligently evaluate the information required to be given to patients whose informed consent is sought and participate in the treatment decision. [Defendant], having been hospitalized under P.C. 1026, is found by the court to be a danger to others within the meaning of Welfare & Institutions Code section 5300/5500. [¶] Therefore, the court orders the Department of Mental Health to administer electroconvulsive treatment (ECT) involuntarily to Mario Loya for the purpose of rendering [him] safe.”
Loya timely appealed and this court granted his request for a stay of the trial court’s order.
DISCUSSION
Defendant argues that the state may not force him to submit to electroconvulsive treatment on dangerousness grounds. He claims statutory rights to refuse such treatment under the Probate Code, Lanterman-Petris-Short Act (LPS) and DMH regulations, unless the court finds that he is incapable of giving informed consent, and a relative, guardian or conservator approves of the treatment. He maintains that, if the relative, guardian or conservator refuses to consent to the treatment, the court cannot order electroconvulsive treatment over the surrogate’s objection, because it has found that he presents a danger to others. Alternatively, defendant argues that if he does not have a direct statutory right to refuse treatment, or to a surrogate, he is entitled to such rights as a matter of equal protection, because he is similarly situated to mentally disordered offenders (MDOs) and LPS patients, who do have such rights. Defendant also argues that involuntary administration of electroconvulsive treatment to one capable of consent violates his state and federal constitutional rights. Finally, he argues that substantial evidence does not support the trial court’s findings that he is incapable of giving consent and dangerous within the meaning of Welfare and Institutions Code sections 5300 and 5300.5.
Pursuant to a Freedom of Information Act request, this court on its own motion obtained the DMH’s current directives regarding the administration of ECT and psychotropic drugs to non-LPS patients under its care. These directives contemplate appointment of a conservator for an incompetent non-LPS patient such as defendant. Prior to oral argument, the Attorney General informed us by letter that the DMH no longer considered defendant in need of ECT at this time due to the efficacy of his current medications, which he is taking voluntarily. We asked the parties to address these developments at oral argument.
We take judicial notice of the directives under Evidence Code section 452, subdivision (h).
Following oral argument, we invited the parties to brief the question whether, given the developments noted above, we should dismiss the appeal as moot or decide the appeal because it presents “important issues that are capable of repetition yet tend to evade review.” (Conservatorship of Wendland (2001) 26 Cal.4th 519, 524, fn.1)
The parties disagree on the mootness questions. However, on May 10, 2011, the parties filed a joint application and stipulation for reversal of the judgment. They do agree that “a stipulated reversal of the superior court judgment would reach the desired result of not subjecting [defendant] to involuntary electroconvulsive treatment.”
Code of Civil Procedure section 128, subdivision (a)(8) provides in relevant part: “An appellate court shall not reverse or vacate a duly entered judgment upon an agreement or stipulation of the parties unless the court finds both of the following: [¶] (A) There is no reasonable possibility that the interests of nonparties or the public will be adversely affected by the reversal. [¶] (B) The reasons of the parties for requesting reversal outweigh the erosion of public trust that may result from the nullification of a judgment and the risk that the availability of stipulated reversal will reduce the incentive for pretrial settlement.” (Code Civ. Proc., § 128, subd. (a)(8).) “California’s appellate courts have the legal authority to reverse (or otherwise vacate) a trial court’s judgment when the parties stipulate to such action as a condition of a proposed settlement pending appeal.” (Neary v. The Regents of University of California (1992) 3 Cal.4th 273, 277.)
Based on our independent review of the record, we find that these requirements are satisfied here. First, the joint application for stipulated reversal supports the conclusion that there is no reasonable possibility the interests of nonparties or the public will be adversely affected by the reversal, because this case concerns only defendant’s treatment plan. (See Code Civ. Proc., § 128, subd. (a)(8)(A).)
Second, the reason the parties request reversal is to ensure that defendant receives only medically appropriate treatment, given his changed medical condition. Further, should the issue of the propriety of administering ECT to defendant again arise, there are now administrative directives in place to guide hospital and court compliance with applicable law. For this reason, the public trust will not be eroded. On the contrary, public trust in the courts and their judgments will be advanced by knowing that the public guardian or conservator, counsel, and the courts will seek to correct errors promptly and reasonably and protect the rights of non-LPS committees. Nor will reversal reduce any incentive for pretrial settlement. Therefore, we conclude that we should accept the parties’ stipulation.
DISPOSITION
The order authorizing the involuntary administration of electroshock therapy to defendant is reversed.
WE CONCUR: BAMATTRE-MANOUKIAN, ACTING P.J., MIHARA, J.