In Humboldt County Adult Protective Services v. Superior Court (A145981 10/24/16) the First Appellate District demonstrated appellate courts do occasionally “right wrongs” and hold government bureaucracy accountable, in addition to addressing important procedural and substantive issues. The legal issue pertained to the entitlement to attorney fees if a party, here the county, commenced a proceeding under the Health Care Decisions Law (Prob. Code, sec. 4600 et seq.) “without any reasonable cause.” Along the way to the result, the Court included important ethical reminders for trial and appellate practitioners, as well as including a helpful discussion of de novo review.
Humboldt County concerned the care of a Mr. Magney, who had appointed his wife his agent for health care decisions in an advance health care directive executed in 2011, also designating his sister as alternate agent. Magney was hospitalized in 2015 with multiple medical problems. In accord with his health care directive and his express wishes, and after consultation with his wife, cardiologist and treating doctor, all treatment “apart from palliative or comfort care” was withdrawn. Magney told his doctor “he was primarily concerned about help in managing pain, and was not interested in continuing other treatment.”
The plot thickened when Humboldt Adult Protective Services received a report Magney may have been the victim of caretaker abuse or neglect, launching an investigation by a public health nurse, who even after consultation with Magney’s treating physician, questioned his capacity to make decisions, despite reviewing a copy of his advance directive. She interviewed another doctor who had seen Magney three months previously at the VA hospital, eventually deciding to file a court action, returning to the hospital with a “sheriff’s deputy and a woman whom she understood to be a VA psychologist, . . . to assess Mr. Magney’s competency.” That same day Humbolt filed “ex parte and without notice” a petition to remove Mrs. Magney as her husband’s agent, as well as a temporary order administering medication, which was granted.
However, the petition omitted any mention of Magney’s treating physician, instead relying on the public health nurse’s declaration which was fraught with representations “made without any foundation indicating the source of her supposed knowledge, while others were offered on information and belief or were based on multiple levels of hearsay.” Humboldt eventually agreed the declaration was not being offered for its truth at all, but just to explain the nurse’s actions. Humboldt also offered a letter from the VA doctor, whom it misrepresented as Magney’s “assigned primary care physician,” and a declaration from the VA psychologist attesting to Magney’s lack of competency, even though the Health Care Decisions Law requires the “primary physician” to determine competency. Shortly thereafter Mrs. Magney secured counsel and opposed the petition, at which point Humboldt withdrew the petition five days later, attaching another unauthenticated “report” from still another doctor. A week later the trial court denied Mrs. Magney’s request for attorney fees, to which she was entitled if Humboldt had commenced the proceeding “without reasonable cause,” the case then proceeding to the Court of Appeal on that question.
As with any good opinion, the result was foreshadowed by the introduction, which indicated Humboldt had procured the temporary order “not only on the basis of an appallingly inadequate evidentiary showing, but also by misleading the trial court both as to pertinent provisions of the Health Care Decisions Law and as to Mr. Magney’s medical status.” The opinion begins with a good discussion of the seemingly-ever-shrinking de novo standard of review, finding the meaning of “reasonable cause” an issue of statutory construction, reviewed de novo, applying an objective standard, adding, “any professed good faith belief on [Humboldt’s] part is difficult to reconcile with the record it put before the court” in any event. Because “Humboldt’s evidentiary showing in support of its removal petition and request for an order compelling immediate treatment was appallingly inadequate and established no facts supporting its invocation of the HealthCare Decisions Law,” and Humboldt had “deliberately misled the trial court and made what could be called a fraudulent evidentiary showing” the Court found Humboldt had no reasonable cause as a matter of law, entitling Mrs. Magney to attorney fees.
The Court not only took Humboldt to task but also appellate counsel for arguing in favor of withholding information from the trial court: “[b]asically, counsel’s view seems to be that if Humboldt needed to be duplicitous to get an order compelling treatment, so be it. That a statutorily recognized fundamental right was involved appears to have been of no moment to Humboldt or its attorney.” Appellate practitioners are often stuck with the hand that is dealt them and need to make the best of a bad situation, either as an appellant or a respondent. However, counsel must take care not to take “damage control” too far, so as to try and avoid damaging counsel’s own reputation and making a bad situation worse. For more juicy details read the opinion: