California Advocates for Nursing Home Reform, et al. v. Smith (July 22, 2019 A147987) __ Cal.App.5th __ [2019 WL 3283218]

H&S Code § 1418.8’s use of interdisciplinary team to make healthcare decision for unbefriended incapacitated nursing home residents satisfies due process when notice provisions are implied.

Health and Safety Code § 1418.8 requires an interdisciplinary team (IDT) to make healthcare decisions for “unbefriended” nursing home residents who lack capacity to make those decisions. A nursing home resident, a taxpayer, and the California Advocates for Nursing Home Reform petitioned for a writ of mandate against the Director of the Department of Public Health (Department) challenging the constitutionality of section 1418.8. The superior court granted the petition, ruling that section 1418.8 was unconstitutional because it (1) facially violated due process by failing to require notice to a resident of a physician’s determination that the resident lacks capacity, has no surrogate decisionmaker, needs a recommended medical intervention, and has a right to judicial review; (2) violated due process when applied to authorize an IDT to make decisions about administering antipsychotic medication; and (3) violated the patient’s privacy rights regarding end of life withdrawal of care decisions. The court entered judgment and prohibited enforcement of section 1418.8 to the extent it conflicted with those rulings. Both parties appealed.

The Court of Appeal mostly reversed, in the process expressly disagreeing with portions of Rains v. Belshe (1995) 32 Cal.App.4th 157 regarding the constitutionality of section 1418.8 as enacted. The Court of Appeal agreed with the superior court’s determination that section 1418.8 would be unconstitutional on its face if it failed to require notice to a resident that he or she had been found to lack decision making capacity and that no surrogate was available before initiating medical intervention. However, to preserve the statute’s constitutionality, the appellate court construed section 1418.8 to require specific oral and written notice to the resident and “at least one competent person whose interests are aligned with the resident.” That notice must specify the incapacity decision and lack of a surrogate, proposed treatment decisions by an IDT, and the resident’s right to judicial review of IDT decisions. The court further held that “an essential feature of the IDT process that saves it from constitutional infirmity” is the inclusion of a patient representative on the IDT who is independent of the nursing home. Finally, the court rejected the petitioner’s as-applied challenges to section 1418.8, holding that the IDT process was appropriate for administering antipsychotic medication in nonemergency situations, and for decisions regarding life-sustaining treatment or hospice care to a terminally ill patient—provided the patient receives notice of the decisions and the IDT includes a patient representative who is unaffiliated with the nursing home. 

The bulletin describing the Court of Appeal’s decision was originally prepared for the California Society for Healthcare Attorneys (CSHA) by H. Thomas Watson and Peder K. Batalden, Horvitz & Levy LLP, and is republished with permission. For more information regarding this bulletin, please contact H. Thomas Watson, Horvitz & Levy LLP, at 818-995-0800 or htwatson@horvitzlevy.com.