Tuesday, September 19, 2017
Differing With Ninth Circuit, C.A. Says:
No Liability for Negligently Imposing Mental Health Hold
Justice Haller Declares Governmental Immunity Exists in Absence of Probable Cause for Confinement
By a MetNews Staff Writer
The Fourth District Court of Appeal has rejected the view of the Ninth U.S. Circuit Court of Appeals that under California law, a government-run health care facility can be liable for imposing a 72-hour mental health hold on a person without probable cause.
Governmental immunity applies whether there is probable cause or not, Div. One declared, in an opinion by Justice Judith Haller. The opinion, which was not certified for publication, affirms a judgment of dismissal that was entered after San Diego Superior Court Judge Katherine A. Bacal sustained demurrers without leave to amend.
The action was brought by Elena Serebryakova against Palomar Health, a California public healthcare district, and one of its nurses, Michael Ezell. Serebryakova was placed on an involuntary psychiatric hold under Welfare and Institutions Code §5150, notwithstanding that she had voluntarily sought services at Palomar’s Pomerado Hospital at a time she was contemplating suicide.
The hold resulted in her becoming subject to a statutory ban on possessing a firearm—which was inconsistent with her duties as a Customs and Border Protection officer—and meant facing a departmental fitness-for-duty review. In an unrelated case, the Court of Appeal reversed the trial court’s denial of her petition for relief from the ban—a decision that was filed one day after her death from a heart attack on March 21, 2016.
The action against Palomar and Ezell was continued by Serebryakova’s sister, Tatyana Starr.
Bacal sustained demurrers based on Government Code §856(a) which provides:
“Neither a public entity nor a public employee acting within the scope of his employment is liable for any injury resulting from determining in accordance with any applicable enactment: [¶] (1) Whether to confine a person for mental illness or addiction.”
That section, Huffman said in Friday’s opinion, “grants immunity even to negligent determinations to confine.”
On appeal, Starr cited the Ninth Circuit’s 2013 memorandum opinion in Hall v. City of Fremont for the proposition that a §5150 hold will give rise to liability where it is not supported by probable cause. She insisted that there was no probable cause to place her sister on an involuntary hold given that she came to Pomerado Hospital voluntarily.
In Hall, Fremont Officer Jeremy Miskella whispered in the ear of Jenna Hall, “If you ever need help, don’t hesitate to call me, I’ll be there.” Regarding this as an amorous advance, she responded: “I’d rather kill myself than call you,” and he placed a §5150 hold on her.
The circuit court said:
“[T]he plain text of section 856(a) of the California Government Code applies only to detentions, or decisions made in the process of detention, which are made ‘in accordance with any applicable enactment,’ meaning, in this case, in accordance with section 5150 of the California Welfare & Institutions Code. Because Officer Miskella did not have probable cause to detain Hall under section 5150, the detention was not ‘in accordance with’ that section….”
Won’t Follow Hall
“We decline to follow Hall. First, ‘we are not bound by decisions of the lower federal courts.’…Second, Hall is an unpublished memorandum disposition, and thus has no precedential effect even in the federal courts….Third, Hall is factually distinguishable because the police officer there did not appear to have even a colorable claim of probable cause, whereas Respondents—faced with a patient who acknowledged she needed psychiatric hospitalization due to her suicidal ideations—had at least a colorable claim of probable cause. Fourth, Hall does not address the California authorities that hold Government Code section 856, subdivision (a)(1) provides immunity even to negligent confinement determinations….Finally, requiring a valid (as opposed to merely negligent) probable cause finding would render the immunity statute a nullity—if probable cause exists, there is no liability from which to be immune.”
The jurist went on to say:
“We are likewise unpersuaded by Starr’s reiteration of the allegation that the determination to place Serebryakova on a section 5150 hold was motivated ‘in part’ by a desire to obtain insurance coverage and secure a bed. The necessary implication of this allegation is that the other “part” of the basis to admit her was the fact she concededly presented at the emergency room on the advice of her treating psychiatrist and agreed she needed to be hospitalized for her suicidal ideations. Denying immunity in such a circumstance would unwisely encourage emergency room personnel to turn away suicidal patients for fear of incurring civil liability for making an “administrative misjudgment” by admitting patients under section 5150.”
The case is Starr v. Ezell, D071116.
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