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The California Supreme Court seemed reluctant Wednesday to deny mentally disordered offenders the right to refuse anti-psychotic medications while hospitalized — even if they are deemed dangerous. “The Legislature has impliedly come to the conclusion that even conservatees have the right to refuse medication,” Justice Joyce Kennard said at one point. “One could reasonably conclude that MDOs have the same rights.” In an unrelated case, the court seemed to disagree with Pacific Bell that utilities statutes prevent California prosecutors from pursuing unfair competition claims against a company while a nearly identical investigation is already under way by the Public Utilities Commission. The court’s Republican-majority justices made no mention of the outcome of Tuesday’s recall election, but instead dived directly into business following a brief memorial session honoring former Justice David Eagleson, who died in May. In the first case of the day, the attorney general’s office was seeking to overturn a 2001 First District Court of Appeal ruling that held a person committed under the state’s Mentally Disordered Offender Act of 1985 has the same right to refuse anti-psychotic drugs as someone committed under the Lanterman-Petris-Short Act of 1967. The AG contends that the MDO act allows the forced use of anti-psychotic drugs where a patient, whether competent or not, poses serious safety and security concerns for staff and other patients at California’s mental hospitals. Patient Kanuri Surgury Qawi met the requirements based on several assaults and batteries beginning in 1991. “Competency [to give informed consent] is not a requirement,” San Francisco-based Deputy AG Angela Botelho argued Wednesday. Chief Justice Ronald George asked Botelho whether she recognized a difference between the right to refuse medicine and the right to refuse anti-psychotic drugs. Is it the element of the patient’s dangerousness, he asked, that “tips the scale?” Several justices, including Carlos Moreno, noted that the LPS act specifically allows patients to refuse anti-psychotic drugs. But Botelho insisted that different rules apply to MDO patients. “Informed consent is trumped under certain situations,” she said. “It’s constitutionally permissible.” Renee Torres, a staff attorney at San Francisco’s First District Appellate Project, says dangerousness does matter, but it has to be recent danger, not the initial charges against the patient. Even those under the LPS act can be medicated against their will, she said — “until they are taken for a judicial evaluation of their competence.” Justice Janice Rogers Brown cornered Torres briefly by asking what the point is of keeping someone hospitalized if you can’t medicate them. “This wouldn’t be any different than prison?” she asked. “You would simply lock them up.” Chief Justice George joined in by saying that would make hospitalization “purely punitive, not rehabilitative.” Isn’t that unconstitutional, he asked? No, Torres said. Hospitals can offer rehabilitation in ways other than medicating, she said. The case is In re Qawi, S100099. In the other argument, district attorneys in Alameda, San Mateo and Monterey counties are appealing a First District ruling that’s preventing them from using the state’s unfair competition law to go after Pac Bell for allegedly using deceptive tactics in marketing its call blocking, custom calling features and inside telephone wire repair insurance. The lower court said utility statutes pre-empt the DAs from pursuing remedies while the PUC has a similar investigation under way. On Wednesday, the Supreme Court’s justices seemed to back the DAs, pointing out that the statute pre-empts them only if their suit would directly contravene a declared order or decision of the PUC or undermine a PUC policy. “The potential of a conflict is not enough,” Justice Kennard told Pac Bell’s lawyer, Pillsbury Winthrop partner Kevin Fong. Fong countered by arguing that the PUC — which eventually hit Pac Bell with a $15 million fine — was involved in an enforcement proceeding, not just an investigation. “Common sense tells us if you have two parallel proceedings, there will be conflicts, confusion,” he argued. “So the courts set up bright-line rules in this area.” If nothing else, he said, the DAs could wait until the PUC action is complete. “We’re only talking about timing here,” he said. What if it was reversed?, Justice Kathryn Mickle Werdegar asked. What if the DAs had sued first? Then, Fong said, the PUC would have divested the trial court of jurisdiction. Chief Justice George was bothered by that. “This doesn’t anticipate rational use of public resources, does it? Cutting off proceedings after they’ve begun?” Fong argued that would tilt in favor of a bright-line rule so it “would be the rare DA who would go in like the Lone Ranger” when he was aware of PUC authority. Justice Brown noted that even the PUC has weighed in with an amicus curiae brief saying the DAs’ action didn’t hurt their proceeding, it augmented it. “Should we just ignore the commission’s view?” she asked. Fong said it’s not the commission’s place to take such a stand. “The commission,” he argued, “cannot create jurisdiction where there is none.” The DAs’ case was argued by Alameda County Senior Deputy DA Harry Johnson. The case is People ex rel. Orloff v. Pacific Bell, S099131.

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