Cal. Advocates for Nursing Home Reform v. Smith

• Decision Date: 22 July 2019
• Docket Number: A147987
• Citation: 37 Cal.App.5th 814,250 Cal.Rptr.3d 119
• 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.

37 Cal.App.5th 814

250 Cal.Rptr.3d 119

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

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 State 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 decision maker, 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 (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, fn. omitted; see id. at p. 178 ["continuing and significant dilemma"].)

To address this "legal conundrum of long standing" (Rains, supra, 32 Cal.App.4th at p. 166), 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.)

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 resident's behalf, the physician is then required to inform the facility of these determinations, and an IDT must be convened to review and authorize the proposed treatment. (§ 1418.8, subds. (a)-(e).)

Section 1418.8 sets out standards by which the attending physician must determine a resident's decisionmaking capacity and the absence of any authorized surrogate decision maker. To make such determinations, the physician must interview the resident, review the resident's medical records, and consult with facility staff and family members and friends of the resident, if identified. (§ 1418.8, subds. (b) & (c).) A resident lacks health care decisionmaking capacity if he or she "is unable to understand the nature and consequences of the proposed medical intervention, including its risks and benefits, or is unable to express a preference regarding the intervention." (Id., subd. (b); see also Prob. Code, § 4609.) The absence of any person with legal authority to make treatment decisions on a resident's behalf may be found if there is no "person designated under a valid Durable Power of Attorney for Health Care, a guardian, a conservator," or any "next of kin" (§ 1418.8, subd. (c)) available and willing to "take full responsibility" for such decisions. (Id., subd. (f).) The physician's determinations regarding incapacity and the lack of a surrogate decision maker, and the "basis for those determinations," must be documented in the resident's medical record. (Id., subd. (l).)

An IDT at the facility must then "conduct [a] . . . review of the prescribed medical intervention prior to the administration of...