Published Date: 2012-03-19

Someone disabled by mental illness still has the right to object to surgery and other major medical treatment, and can be required to have an operation only if the evidence shows it is necessary, a state appeals court has ruled.

The decision Wednesday by the Fourth District Court of Appeal in Santa Ana requires a county's public guardian or other caretaker for the mentally ill to present evidence - such as a doctor's testimony, subject to cross-examination - to show the need for a medical procedure that the patient does not want.

In this case, the proposed procedure is the amputation of an infected toe. In other cases it might be a mastectomy or other forms of cancer treatment, said Kira Rubin, a deputy public defender in Orange County who represented the patient.

"If you're a rational, sane person, you may choose not to do chemotherapy" even if it would prolong your life, she said. "In cases where you're under conservatorship (for a grave mental illness), they don't take your thoughts into consideration.

"As long as you understand there are risks and consequences, you should be able to have sovereignty over your own body."

But a lawyer for the county said the ruling could reduce access to medical care.

Most such cases involve low-income people in the Medi-Cal program, which does not reimburse doctors for the time and expense of testifying in court, said Deputy County Counsel James Harvey. Because the ruling puts doctors on notice that they could be called into court to justify a proposed procedure, he said, they may start refusing to treat the mentally disabled, "already an underserved population."

Harvey said county officials haven't decided whether to appeal the ruling.

In this case, the county's public guardian, as conservator for a man identified as Scott S., submitted a doctor's declaration that amputation of a toe was needed to stop an infection from spreading to his foot and requiring further amputations.

Scott S. testified at a hearing and said, after talking with his lawyer, that he did not want his toe amputated, but could not respond coherently to questions. A judge then ruled that he lacked the capacity to give "informed consent," and approved the surgery.

But the appeals court, after issuing a stay, said in a 3-0 ruling Wednesday that medical necessity must be shown by evidence presented in court, not by a doctor's out-of-court declaration.