Legal Rights of Persons With Disabilities - Ossh.com

The state is required to have programs or procedures to place a medically-neglected infant within
protective service. The procedures must provide for an investigation of the infant's condition and a court
order for an independent medical examination, if necessary. (42 U.S.C. ' 5106a; 29 U.S.C. ' 701 et seq.;
and 45 C.F.R. ' 84.55(c).)
B. Infant Care Review Committees
Infant Care Review Committees (ICRC) are composed of hospital personnel, community members,
and disability organization representatives. They provide education for health care professionals and
families of infants with life-threatening disabilities, recommend guidelines and policies concerning
withholding medically-indicated treatment, and offer counsel in cases involving infants with lifethreatening
conditions. The federal government has issued model guidelines to assist hospitals in
developing ICRC. (45 C.F.R. ' 84.55(a).)
III.
RIGHT TO CONSENT TO MEDICAL TREATMENT
Persons with physical or mental disabilities have a right to consent or refuse to consent to any
medical treatment, except in an emergency or where a conservator or court has authorized treatment. If a
person is incapable of giving consent or refusing consent (such as a child or a person in a coma), and the
person has no legal guardian or conservator, a family member may be able to give consent. Consent in
these cases may also be obtained through court proceedings. In any court proceeding brought to authorize
medical treatment, a person must be given proper notice and the opportunity to be represented by an
attorney. (Prob. Code, ' 3200 et seq.)
A. Right of a Conservatee to Refuse Medical Treatment
A person for whom a guardian (conservator) has been appointed may still be able to refuse medical
treatment. The person (conservatee) loses the right to refuse only if the court determines that the
conservatee lacks capacity. A conservator may consent to medical treatment on behalf of the conservatee
in an emergency or in certain cases of severe illness or injury requiring immediate care. If the court
determines that the conservatee lacks capacity to give consent, the conservator has the exclusive authority
to consent to medical treatment for the conservatee. A conservator appointed under the Lanterman-Petris-
Short (LPS) Act, discussed in Chapter 10, may have some additional power to authorize treatment.
No surgery can be performed on a conservatee without his or her prior consent, except where the
conservatee faces loss of life or serious bodily injury, or a court order authorizes the surgery. (Prob. Code,
' 2354 et seq.; Welf. & Inst. Code, ' 5357 et seq.; 58 Ops.Cal.Atty.Gen. 849 (1975).)
B. Durable Power of Attorney for Health Care
In California, individuals can sign a Durable Power of Attorney for Health Care. It allows the
person, called the "principal," to choose an individual, called the Aattorney in fact,@ who has the power to
make health care decisions on behalf of the principal if the principal is unable to consent to or refuse
medical treatment. Because of the broad legal powers conferred upon the attorney in fact, an individual
should carefully consider and review all provisions of the durable power of attorney for health care or
consult with an attorney before executing a power of attorney. (See Prob. Code, ' 4650, et seq.)
66