Cal. Advocates for Nursing Home Reform v. Smith

• Decision Date: 22 July 2019
• Docket Number: A147987
• Citation: 251 Cal.Rptr.3d 636,38 Cal.App.5th 838
• Court: California Court of Appeals Court of Appeals
• Parties: CALIFORNIA ADVOCATES FOR NURSING HOME REFORM et al., Plaintiffs and Appellants, v. Karen SMITH, as Director, etc., Defendant and Appellant.

38 Cal.App.5th 838

251 Cal.Rptr.3d 636

CALIFORNIA ADVOCATES FOR NURSING HOME REFORM et al., Plaintiffs and Appellants,

v.Karen SMITH, as Director, etc., Defendant and Appellant.

A147987

Court of Appeal, First District, Division 4, California.

Filed July 22, 2019

As Modified on Denial of Rehearing August 21, 2019

Morton P. Cohen; Law Offices of Amitai Schwartz and Amitai Schwartz, Emeryville, for Plaintiffs and Appellants.

BraunHagey & Borden, Matthew Borden, and J. Noah Hagey, San Francisco, for California Long Term Care Ombudsman Association as Amicus Curiae on behalf of Plaintiff and Appellants.

AARP Foundation Litigation and William Alvarado Rivera for AARP, AARP Foundation, National Consumer Voice for Quality Long-Term Care, and Justice in Aging as Amici Curiae on behalf of Plaintiffs and Appellants.

Disability Rights California, Katherine Mathews, Salma Enan, and Pamela Lew as Amicus Curiae on behalf of Plaintiff and Appellants.

ACLU Foundation Disability Rights Program, Claudia Center, and Susan Mizner ; ACLU Foundation of Northern California and Alan L. Schlosser, San Francisco, as Amici Curiae on behalf of Plaintiff and Appellants.

Xavier Becerra and Kamala D. Harris, Attorneys General, Julie Weng-Gutierrez, Senior Assistant Attorney General, Susan M. Carson, Supervising Deputy Attorney General, Joshua N. Sondheimer, Deputy Attorney General for Defendant and Appellant.

Cole Pedroza, Curtis A. Cole, and Cassidy C. Davenport, San Marino, for California Medical Association, California Dental Association, and California Hospital Association as Amici Curiae on behalf of Defendant and Appellant.

Hooper, Lundy & Bookman and Mark E. Reagan, San Francisco, for California Association of Health Facilities as Amicus Curiae on behalf of Defendant and Appellant.

STREETER, J.

I. INTRODUCTION

Health and Safety Code section 1418.8 ( section 1418.8 ) sets forth procedures to be followed for nursing home residents who lack capacity to make their own health care decisions. Most of the affected residents are elderly, many are poor, and all may be described as "unbefriended" in the sense they are without family members, friends or other legal surrogates to make health care decisions for them. The statute requires an interdisciplinary team (IDT) approach to decisionmaking for these residents.

California Advocates for Nursing Home Reform (CANHR), a nonprofit entity advocating for the rights of nursing home patients, together with a nursing home resident and a taxpayer (collectively, petitioners), challenged the constitutionality of section 1418.8 under the California Constitution by a petition for writ of mandate against the Director of the Department of Public Health (Department), a position now held by Dr. Karen Smith (Director).

The superior court issued an order holding section 1418.8 unconstitutional in three respects, one on its face and two as applied: It held the statute (1) on its face, violates due process under the California Constitution by failing to require notice to residents of a physician's predicate determinations that the patient lacks capacity, has no surrogate decisionmaker, needs a recommended medical intervention, and has a right to judicial review; (2) was never intended to authorize IDT decisionmaking for administration of antipsychotic medication, and it violates due process, as applied, when used to authorize such drugs; and (3) violates the patient's privacy rights and is unconstitutional as applied to decisions regarding end of life withdrawal of care.

The court entered judgment accordingly, issuing a writ of mandate that prohibited enforcement of the statute in the absence of notice to the affected resident; prohibited use of the statute to administer antipsychotics; and prohibited use of the statute in end of life decisions, subject to several exceptions, including an exception for transfer to hospice care.

Both parties appealed. The Director claims the statute is constitutional in all respects, and petitioners argue it is unconstitutional in additional particulars beyond those enjoined. Petitioners take the position, ultimately, that the statute should be declared unconstitutional in its entirety and that we should forbid its enforcement categorically, leaving the Legislature to begin again trying to solve the problem of how to provide for the medical needs of incapacitated, unbefriended nursing home residents.

We see merit to much of the superior court's analysis concluding that section 1418.8 is constitutionally deficient, but agree with enough of the Director's position to convince us that the proper course is to construe the statute to uphold its constitutionality rather than enjoin its enforcement and use. We shall therefore reverse and remand with directions to enter a modified judgment requiring nursing homes utilizing section 1418.8 to adopt and adhere to additional procedures we have concluded are necessary to preserve its constitutionality.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. History and Purpose of Section 1418.8

When it was enacted in 1992, section 1418.8 was intended to give skilled nursing facilities and intermediate care facilities¹ a means of decisionmaking for incapacitated residents without someone "with legal authority to make" health care decisions on his or her "behalf" ( § 1418.8, subd. (a) ), including "day-to-day medical treatment decisions ... on an on-going basis," which were difficult to secure using the pre-existing legal methods. (Stats. 1992, ch. 1303, § 1(b), p. 6327.) A decision by Division Five of this district, which we will discuss in detail below, also observed that section 1418.8 "applies only to the relatively nonintrusive and routine, ongoing medical intervention[.]" ( Rains v. Belshé (1995) 32 Cal.App.4th 157, 186, 38 Cal.Rptr.2d 185 ( Rains ).)

Before the statute's enactment, capacity decisions were made in superior court on a petition to determine capacity to make health care decisions. ( Prob. Code, § 3200 et seq. ) "A petition may be filed to determine that a patient lacks the capacity to make a health care decision concerning specified treatment for an existing or continuing condition, and further for an order authorizing a designated person to make a health care decision on behalf of the patient." ( Prob. Code, § 3201, subd. (b).) A petition may also seek a finding by the court that the patient has such capacity. (Id. , subds. (a), (c).)

In enacting section 1418.8, the Legislature sought to provide a decisionmaking alternative when recommended medical procedures require informed consent. (See Cobbs v. Grant (1972) 8 Cal.3d 229, 244-245, 104 Cal.Rptr. 505, 502 P.2d 1 [informed consent required when there is a known risk of death or serious bodily harm as a result of a recommended treatment].) As described in Rains , section 1418.8 addresses a "very difficult and perplexing problem: how to provide nonemergency but necessary and appropriate medical treatment, frequently of an ongoing nature, to nursing home patients who lack capacity to consent thereto because of incompetence, and who have no surrogate or substitute decision maker with legal authority to consent for them." ( Rains , supra , 32 Cal.App.4th at p. 166, 38 Cal.Rptr.2d 185, fn. omitted; see id. at p. 178, 38 Cal.Rptr.2d 185 ["continuing and significant dilemma"].)

To address this "legal conundrum of long standing" ( Rains , supra , 32 Cal.App.4th at p. 166, 38 Cal.Rptr.2d 185 ), section 1418.8—utilizing what is described as a "team approach to assessment and care planning"—authorizes an IDT composed of health professionals and other skilled staff from the nursing home, along with a "patient representative," "where practicable," to review and authorize medical treatment. ( § 1418.8, subd. (e) ; see id. , subds. (e) ["[t]he interdisciplinary team shall oversee the care of the resident"], (e)(3) ["[t]o determine the desires of the resident, the interdisciplinary team shall interview the patient, review the patient's medical records, and consult with family members or friends"], (g) [required reviews by "interdisciplinary team" of prescribed medical intervention], (h) [review by "interdisciplinary team" within a week of any emergency intervention resulting in "physical or chemical restraints"].)

In establishing a "team" decisionmaking approach, the Legislature recognized that the existing mechanisms for court authorization of medical treatments for such patients under provisions of the Probate Code were slow and inadequate, and therefore could interfere with residents' ability to receive timely medical care: "(b) The current system is not adequate to deal with the legal, ethical, and practical issues that are involved in making health care decisions for incapacitated skilled nursing facility or intermediate care facility residents who lack surrogate decisionmakers. Existing Probate Code procedures, including public conservatorship, are inconsistently interpreted and applied, cumbersome, and sometimes unavailable for use in situations in which day-to-day medical treatment decisions must be made on an on-going basis. [¶] (c) Therefore, it is the intent of the Legislature to identify a procedure to secure, to the greatest extent possible, health care decisionmakers for skilled nursing facility or intermediate care facility residents who lack the capacity to make these decisions and who also lack a surrogate health care decisionmaker." (Stats. 1992, ch. 1303, § 1, pp. 6326-6327.) Indeed, Rains spoke of a "delay of two to six months frequently necessary to secure a ruling on a petition authorizing treatment under Probate Code section 3201." ( Rains , supra , 32 Cal.App.4th at p. 166, 38 Cal.Rptr.2d 185.)

B. Summary of the Provisions of Section 1418.8

Under section 1418.8, if a resident's "attending physician and surgeon" determines that a resident lacks capacity to provide informed consent to a proposed treatment, and determines there is no person with legal authority to make the treatment decision on the...