Metropolitan News-Enterprise


Tuesday, October 25, 2016


Page 1


C.A. Overturns Order Allowing County to Ignore Advance Health Care Directive


By a MetNews Staff Writer


A Humboldt Superior Court judge failed to follow the state’s Health Care Decisions Law when he granted the county’s request to remove the wife of a man with serious heart disease and other medical problems as his agent for decisionmaking, the First District Court of Appeal ruled yesterday.

The county, which obtained a temporary order requiring treatment, did so “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 [Dick] Magney’s medical status,” Justice Patricia Banke wrote.

The justice castigated the county for failing to inform the trial judge that Magney had a personal physician who opined that Magney desired only palliative care and was competent to make that choice. Banke noted that the county withdrew its petition within days after Magney’s wife retained counsel.

Judith Magney is entitled to attorney fees, the justice added, because the county had “no reasonable cause” to proceed under the Health Care Decisions Law.

In that law, the right of an adult to make decisions regarding his or her healthcare, including the decision to have life-sustaining treatment withheld or withdrawn, is described as “fundamental.” To exercise that right, a person may issue an advance health care directive, execute a power of attorney for health care, and/or nominate a conservator, so that decisions consistent with the person’s expressed wishes can be made if he or she is no longer competent to do so.

A public agency or hospital, however, may petition the superior court to determine whether or not a patient has the capacity to make decisions, determine the viability or validity of an advance health care directive, determine whether the person’s agent is acting in concert with the patient’s wishes or best interests, or to remove an agent’s authority for having acted illegally or being unfit to act as agent.

Magney executed an advance directive in 2011. He appointed his wife as agent, with his sister as alternate, and directed that she be authorized to act immediately, regardless of his competency. He directed that he be allowed to “live my life with dignity” and said he desired that his “loved ones…have pleasant memories” of his “final days,” and that he should therefore “be allowed to die without prolonging my death with medical treatment…that will not benefit me.”

Magney was hospitalized last year with, among other conditions, a serious heart infection. About two weeks after he was admitted, Dr. Stephanie Phan took over his case, and noted a cardiologist’s report saying he had refused further workup of his condition, including having refused heart valve surgery in 2012, saying it was more than he could tolerate.

He noted that he was a born-again Christian and was, in Banke’s words, “ready for death.” Phan expressed the belief that further medical treatment would be futile; Magney concurred and asked only that he be treated for pain.

Phan later expressed the conclusion that Magney, although he had a history of dementia and short-term memory problems, was clear in not wanting his life to be prolonged by medical means.

The county’s intervention came after it assigned a public health nurse to investigate a report—the source of which is not mentioned in the opinion—that Magney had been abused or neglected by a caretaker. The nurse, after speaking to Phan and being informed of her decision to administer only palliative care, concluded that Magney was confused and was simultaneously saying he wanted to live and to die.

The nurse questioned whether Judith Magney was acting in her husband’s best interests, and whether Phan was doing so. She reported her concerns to her superiors, who decided to seek judicial intervention.

The county then filed an ex parte petition, attaching a declaration by a Department of Veterans’ Affairs psychologist and the public health nurse. Phan, and her review of Magney’s health records, were not mentioned.

A judge granted an immediate treatment order, which was served on the Magneys several days later. Judith Magney and her newly retained counsel promptly challenged the order, and the county withdrew its petition five days later. The judge then withdrew the order, reserving jurisdiction over the Magneys’ request for attorney fees, which Judge Dale A. Reinholtsen, who was not the granter of the original order, later denied.

The Court of Appeal, in its decision yesterday, affirmed the withdrawal of the treatment order and reversed the denial of attorney fees.

The county’s subjective belief that it was doing the right thing is not relevant to the “reasonable cause” determination, Banke said, and its profession that it acted in good faith was, in any event, “difficult to reconcile with the record it put before the trial court.”

The case is Humboldt County Adult Protective Services v. Superior Court (Magney), A145981.


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