38 Cal.App.5th 838
Cal. Ct. App.2019Background
- Health & Safety Code §1418.8 authorizes an interdisciplinary team (IDT) process for nursing‑home residents found by their attending physician to lack capacity and to have no available surrogate, to authorize nonemergency medical interventions. The statute originally aimed to avoid delays of formal probate proceedings.
- Petitioners (CANHR, an incapacitated resident, and a taxpayer) challenged §1418.8 as facially and as‑applied unconstitutional for lacking notice, permitting physician-made capacity findings, allowing IDT use for antipsychotics, and allowing end‑of‑life decisions without adequate safeguards. Superior Court enjoined parts of the statute and prohibited its use for antipsychotics and end‑of‑life decisions (with exceptions).
- Key factual examples included a resident (Gloria A.) who was declared incapacitated without notice, received antipsychotics via an IDT, lost control of finances, and died months later; amici and declarations described alleged overuse of antipsychotics and IDT decisions changing POLST/DNR orders.
- The Director (Dept. of Public Health) defended §1418.8 as constitutional, urged preservation of the IDT process (including for antipsychotics and some end‑of‑life decisions), and relied on existing federal/state nursing‑home protections and enforcement mechanisms.
- The Court of Appeal agreed §1418.8 has constitutional defects as written but preserved the statute by construing it to require additional procedures: written and oral notice to resident and a competent third person, mandatory independent patient representative on the IDT (except emergencies), postponement of nonemergency treatment until after notice/opportunity for judicial review, and allowed IDT use for antipsychotics and certain end‑of‑life decisions when those safeguards are followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does §1418.8 require notice and an opportunity to be heard before implementation of treatment? | §1418.8 is facially unconstitutional for failing to require notice to resident of capacity finding, lack of surrogate, proposed treatment, and right to judicial review. | Notice not mandated by statute but other laws/regulations and enforcement processes suffice; pre‑treatment notice not constitutionally required. | Court: Statute must be construed to require oral and written notice to resident and at least one competent aligned person; nonemergency treatment may not begin until after notice and a reasonable opportunity to seek judicial review (IDT process suffices as interim forum). |
| Who may determine capacity and surrogate status—physician or judge; and must attending physician be excluded from IDT? | Capacity is a legal question requiring judicial determination or at least an independent decisionmaker; attending physician is not neutral and should not decide or sit on the IDT. | Capacity has medical and legal aspects; physician determinations guided by statutory standards and subject to IDT review and judicial review; excluding attending physician would undermine statute and timeliness. | Court: Physician may determine capacity and lack of surrogate under §1418.8 using statutory standards; IDT may review those findings; attending physician may participate; mandatory independent patient representative on IDT required to protect due process. |
| May §1418.8 be used to authorize administration of antipsychotic medications? | As‑applied challenge: antipsychotics are intrusive with severe risks and require heightened procedural protections (judicial review/independent board) like in prison/LPS contexts. | §1418.8 covers medical interventions generally; federal/state nursing‑home regulations and enforcement plus IDT safeguards suffice; excluding IDT would delay needed care. | Court: Antipsychotics fall within “medical interventions” and IDT may authorize them; statute must be implemented with the enhanced notice and independent patient representative safeguards; no categorical prohibition. |
| May §1418.8 be used for end‑of‑life decisions (POLST/DNR/hospice)? | Petitioners: §1418.8 cannot lawfully be used to make decisions that end life or withdraw life‑sustaining care absent heightened judicial protections (citing Wendland). | Director: §1418.8 may be used for some end‑of‑life decisions (e.g., DNR, hospice) and superior court’s broad injunction was overbroad; hospice referral is not a life‑ending decision. | Court: Petitioners failed to prove IDTs were being used to make true life‑ending decisions; §1418.8 may be used for POLST/DNR changes and hospice transfers provided the constitutionally required notice, opportunity to be heard, and independent patient representative are in place; major life‑ending withdrawals may still require judicial process under Wendland/Drabick in appropriate cases. |
Key Cases Cited
- Rains v. Belshé, 32 Cal. App. 4th 157 (Cal. Ct. App.) (upheld §1418.8 against prior due process challenge; viewed statute as for nonintrusive/routine interventions)
- In re Qawi, 32 Cal. 4th 1 (Cal.) (interpreting statutory requirements for involuntary antipsychotic treatment of MDOs; emphasized legal character of competence determinations)
- Conservatorship of Wendland, 26 Cal. 4th 519 (Cal.) (requires heightened proof for conservator decisions that effectively end life)
- Conservatorship of Drabick, 200 Cal. App. 3d 185 (Cal. Ct. App.) (conservator may withhold/withdraw treatment where appropriate)
- Washington v. Harper, 494 U.S. 210 (U.S.) (upheld prison procedures for involuntary antipsychotic meds when independent panel and procedural protections provided)
- Keyhea v. Rushen, 178 Cal. App. 3d 526 (Cal. Ct. App.) (prisoner involuntary antipsychotic treatment case discussing need for judicial/administrative safeguards)
- Goldberg v. Kelly, 397 U.S. 254 (U.S.) (pre‑termination hearing required where termination would cause grievous loss; invoked in due process timing analysis)