CALIFORNIA ADVOCATES FOR NURSING HOME REFORM et al. v. KAREN SMITH, as Director, etc.
A147987
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR
Filed 7/22/19
CERTIFIED FOR PUBLICATION; (Alameda County Super. Ct. No. RG13700100)
Health and Safety Code section 1418.8 (
California Advocates for Nursing Home Reform (CANHR), a nonprofit entity advocating
The superior court issued an order holding
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
II. FACTUAL AND PROCEDURAL BACKGROUND
A. History and Purpose of Section 1418.8
When it was enacted in 1992,
Before the statute‘s enactment, capacity decisions were made in superior court on a petition to determine capacity to make health care decisions. (
In enacting
To address this “legal conundrum of long standing” (Rains, supra, 32 Cal.App.4th at p. 166),
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 fаcility 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
An IDT at the facility must then “conduct [a] . . . review of the prescribed medical intervention prior to the administration of the medical intervention.” (
(5) “The probable impact on the resident‘s condition, with and without the use of the medical intervention“; (6) “Reasonable alternative medical interventions considered or utilized and reasons for their discontinuance or inappropriateness.” (
In the event of an emergency, the facility may administer treatment ordered by a physician for the resident, including applying “physical or chemical restraints,” without prior IDT approval. (
C. The History of This Lawsuit
CANHR is, and has been since 1983, a statewide nonprofit organization dedicated to improving the choices, care and quality of life for California‘s
Petitioner Gloria A. was a 63-year-old truck driver who ended up in a nursing home and was declared incapacitated by her treating physician upon entry into the facility. Just 20 days later, she was examined by another physician who found: “This resident has the capacity to understand and make decisions.” Nevertheless, the incapacity determination remained in effect for nine months. Gloria A. never received notice of the physician‘s determination, of his finding that she had no surrogate to make health care decisions for her, of the treatment and restrictions he recommended, or of her right to judicial review of his decisions.
Nothing in
Petitioner Anthony Chicotel is a taxpayer who challenges the expenditure of tax money in enforcing
The first five causes of action were brought as facial challenges to the statute; the last three were as-applied challenges. In January 2015, the petitioners filed the operative first amended petition alleging the same causes of action, but adding Chicotel as a petitioner.
D. The Superior Court‘s Order and Judgment and the Issues on Appeal
In response to petitioners’ motion for writ of mandate, declaratory relief, and injunction, the superior court issued its order in June 2015 granting, in part, and denying, in part, a writ of mandate, and entered judgment accordingly on January 27, 2016. The superior court ruled that
The Director insists the due process clause of the state Constitution does not require such notice to be embedded in the statute, in part because other statutes and regulations, both state and federal, virtually ensure the patient will be notified of the matters specified by the superior court. Petitioners, on the other hand, claim the superior court did not go far enough; they contend in their cross-appeal that notice should be required before an incapacity decision is made. The Director suggests, even if we find the statute constitutionally wanting, we should not declare it unenforceable, but rather should read into it a notice requirement.
The superior court also held the statute violates the patient‘s constitutional privacy rights when applied to decisions to withdraw life-sustaining treatment and end life. The Director argues the superior court should not even have reached this issue based on lack of state action and because the issue is not ripe and any opinion on the subject is merely advisory.
In addition to supporting the superior court‘s conclusions about the aspects of the statute deemed unconstitutional or unenforceable except on specified conditions, petitioners, in their cross-appeal, argue
Finally, the superior court‘s determination that
III. SUMMARY OF CONCLUSIONS
A. Notice and Opportunity to be Heard
Employing independent review, we conclude, as did the superior court, that the statute would be unconstitutional on its face under the due process clause of article I, section 7 of the California Constitution if it failed to require notice to the nursing home resident that he or she has been found to lack decisionmaking capacity and that a surrogate decisionmaker is unavailable—the two findings which serve to take decisionmaking authority out of the hands of the resident—before a recommended medical intervention may be initiated. But to preserve
We agree with the superior court that, as a matter of due process, before treatment is begun a resident is entitled to a meaningful opportunity to be heard in opposition to the determinations of incapacity and unavailability of a surrogate, as well as to a recommended medical intervention. Thus, the required notice must advise the resident of the fact that determinations of incapacity and absence of a surrogate have been made, of any proposed treatment decided upon by the IDT, and of his or her right to seek judicial review. The statute already provides for judicial review (
B. Mandatory Inclusion of Independent Patient Representative on IDT
Patients subject to
Although the statute provides for a patient representative to participate on the IDT “where practicable,” we give that phrase a narrow reading so that a patient representative must be appointed for every nursing home
C. Administration of Antipsychotic Medication
We reject petitioners’ first as-applied challenge urging that
D. End of Life Decisionmaking
Finally, we reject petitioner‘s second as-applied challenge that categorically, under no circumstances, may
Although we hold that
IV. DISCUSSION
A. Autonomy Privacy Protects Residents’ Rights to Make Medical Decisions and Due Process Attaches to Deprivation of Those Rights
1. The Right of Autonomy Privacy
“[T]he explicit right of privacy protected under
The question here, of course, is how the patient‘s will can best be learned and effectuated, and his or her rights adequately protected, when he or she lacks decisional capacity, has no advance health care directive, and the attending physician is aware of no next of kin or other person willing to serve as a legally authorized proxy decisionmaker. (Cf. In re Conroy (N.J. 1985) 486 A.2d 1209, 1219-1220.)
2. Due Process
The right to refuse necessary medical treatment is a fundamental liberty interest protected by the due process clause of the Fourteenth Amendment (Washington v. Harper (1990) 494 U.S. 210, 221-222; Cruzan v. Director, Missouri Dept. of Health (1990) 497 U.S. 261, 278; People v. Petty (2013) 213 Cal.App.4th 1410, 1417) and by the privacy guarantee of the California Constitution and the common law (In re Qawi (2004) 32 Cal.4th 1, 17 (Qawi); K.G. v. Meredith (2012) 204 Cal.App.4th 164, 170-171). Petitioners contend various aspects of
B. Rains v. Belshe (1995) 32 Cal.App.4th 157
In 1995, Division Five of this district was faced with a constitutional attack on
Though Rains held
As we shall discuss, petitioners contend the Supreme Court‘s intervening decision in Qawi, supra, 32 Cal.4th 1 calls for a different outcome in this case. Fundamentally, petitioners question whether capacity is a medical decision that can be made by a physician, as Rains held (Rains, at pp. 177, 179-182), or a legal decision that must be made by a judge (see Qawi, supra, 32 Cal.4th at p. 17). They further contend their evidence shows the statute is not being applied within the limits established by Rains, as when it is used to prescribe antipsychotic medications or to make end of life decisions.
Significantly, the panel deciding Rains relied on an interpretation that
Petitioners contend Rains thereby established legal limits on the application of the IDT procedure, but, on the record they have produced, they have shown the law is presently being extended far beyond those limits. Short of life-ending decisions covered by Wendland, supra, 26 Cal.4th 519, or Drabick, supra, 200 Cal.App.3d 185, the Director, in response, takes the position there are no limitations on the scope or subject matter of medical decisions that can be made using
C. The Standard of Review
This case arises on appeal from the issuance of a writ of mandate under
1. The Superior Court‘s Ruling
The superior court‘s June 2015 order in this case observed that Rains did not deal specifically with the question of notice to the patient of the decisions on capacity and surrogacy, and it therefore concluded Rains was not controlling on that point. Rains held the statute did not violate due process, even though the incapacity decision was “without notice” to the nursing home resident. (Rains, supra, 32 Cal.App.4th at p. 178.) Although the court mentioned the notice issue only in passing, notice was one of the attributes of a fair hearing that the petitioner in Rains claimed was lacking in the IDT procedure implemented by
Starting from the premise that a patient‘s privacy right to refuse medication is not extinguished when a person resides in a nursing home (Rains, supra, 32 Cal.App.4th at p. 171; see Drabick, supra, 200 Cal.App.3d at p. 208 [privacy rights survive incompetence]), the superior court reasoned that notice and аn opportunity to be heard are the touchstones of due process when the deprivation of fundamental rights is threatened.5
Under People v. Ramirez (1979) 25 Cal.3d 260, the superior court considered: “(1) the private interest that will be affected by the official action, (2) the risk of an erroneous
deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards, (3) the dignitary interest in informing individuals of the nature, grounds and consequences of the action and in enabling them to present their side of the story before a responsible governmental official, and (4) the governmental interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” (Id. at p. 269.)
The surpassing importance of the individual rights at stake, the individual’s dignity interests, the complete elimination of the patient’s actual participation in the process, the risk of erroneous deprivation, and the minimal fiscal and administrative burden of notifying patients led the trial court to hold that
The Director attacks this conclusion as unfounded, claiming that a denial of due process cannot be asserted under
We reject the Director’s contentions as a legal matter; state deprivation of a constitutionally guaranteed right is constrained by due process, even if there is no separate statute granting that right. And the right to determine one’s own health care options involves fundamental liberty interests, as well as privacy interests. (People v. Petty, supra, 213 Cal.App.4th at p. 1417.) But even if a statutory right needed to be identified, one exists in
We are unpersuaded by the Director’s insistence that what petitioners complain about, at bottom, is isolated private conduct by a few nursing homes, that there is no state action here, and thus there is no basis to assert a
We think the superior court was right to conclude that, looking at the statute literally, as written,
2. Construing Section 1418.8 to Save it From Constitutional Infirmity
Presented with a petition for a writ of mandate seeking both declaratory and injunctive relief, the superior court elected to proceed by injunction. In prohibiting enforcement of
While we agree in principle with the superior court’s due process analysis, we think the proper remedial approach here is to preserve the statute’s constitutionality by interpretation, not to prohibit its enforcement by injunction. Legislation comes to us clothed with a presumption of validity, and when dealing with a challenge to a statute, whether facial or as applied, our mission is, “wherever possible, . . . [to] interpret . . . [the challenged] statute as consistent with applicable constitutional provisions, seeking to harmonize Constitution and statute.” (California Housing Finance Agency v. Elliott (1976) 17 Cal.3d 575, 594 (Elliott); see Syrek v. California Unemployment Ins. Appeals Bd. (1960) 54 Cal.2d 519, 526 [“ ‘The power of a court to declare a statute unconstitutional is an ultimate power; its use should be avoided if a reasonable statutory construction makes the use unnecessary.’ ”]; Ashwander v. Tennessee Valley Authority (1936) 297 U.S. 288, 346 (conc. opn. of Brandeis, J.).)
In rejecting a due process challenge to
Describing the statutory and regulatory backdrop as one “designed to protect nursing home patients” through a set of “standards and regulations . . . which both limit and supplement the interdisciplinary team decisionmaking approach by granting certain rights and safeguards to affected residents” (Rains, supra, 32 Cal.App.4th at p. 186), the Rains court concluded that “[c]onsideration of these numerous statutory safeguards [citation] undermines the claim that
Faced with the choice of voiding a statute or reading it to include procedural protections to avoid constitutional infirmity, courts have often chosen the route of savings-by-interpretation. (See Elliott, supra, 17 Cal.3d at p. 594; see also Horn v. County of Ventura (1979) 24 Cal.3d 605, 616 [construing statute to require “reasonable notice and opportunity to be heard”]; Braxton v. Municipal Court (1973) 10 Cal.3d 138, 144-145 [noting that statute “must be construed so as not to violate the precepts of procedural due process; hence we interpret [statute] to require notice and a hearing”]; Board of Education v. Mass (1956) 47 Cal.2d 494, 499 [reading hearing and other requirements into statute where law could “be reasonably interpreted in a manner consistent with due process”]; Charles S. v. Board of Education (1971) 20 Cal.App.3d 83, 94-96 [denying writ challenging constitutionality of statute on procedural due process grounds, and construing statute to include specific notice and hearing requirements].)
We agree with the superior court that unbefriended nursing home patients who are perceived to lack decisionmaking capacity must receive “adequate notice” of the incapacity decision, the absence-of-a-surrogate
3. Adequacy of Notice
Although we conclude the superior court’s due process analysis was correct, in some respects it did not go far enough. Beyond requiring written notice of certain kinds of information, for example, the court did not expound on what “adequate notice” means in this context. When notice is required, it must be reasonably calculated to give actual notice to the person affected. (Rasooly v. City of Oakley (2018) 29 Cal.App.5th 348, 357.) We are concerned here with effective notice, that is, notice that will result in communication to the resident, if possible. If notice is to be effective in these circumstances, it must be given in writing as well as orally. This seems only marginally more burdensome than oral notice alone and is much more likely to lead to the patient’s understanding of his or her own predicament because (1) it may be referred to repeatedly for increased comprehension, and (2) it may be shown to a friend, relative, nursing home staff member, or local ombudsman15 for a simpler or fuller explanation of what the writing seeks to convey.
Hence, we conclude the superior court’s order in this case requiring written notice to the resident alone did not go far enough to remedy the due process problem. Given the health circumstances of the intended recipients, we hold that written notice must also be given to at least one competent person who might be willing and able to discuss the meaning of the notice to the resident. The patient representative or the local ombudsman provided for in
4. Composition of IDT
Viewing Rains as dispositive on the point, the superior court declined to rule that a constitutionally required element of due process for nursing home patients subject to
Rains took the broad statutory definition as a sign that practically no patient would be unrepresented on an IDT, finding it “almost impossible to conceive of a patient who could not have a patient representative.” (Rains, supra, 32 Cal.App.4th at p. 182.) The Rains court envisioned that a resident would be deprived of a patient representative only in rare circumstances, such as “due to [the patient representative’s] temporary unavailability, illness, or similar causes.” (Id. at p. 167.) Rains also found it “highly significant that
Rains also construed the statute as mandating that the patient representative alone would actually make the treatment decision; the medical staff on the IDT would make the decision only in exigent circumstances when the patient representative was unavailable or unwilling: “[W]e deal with a statutory procedure by which the equivalent of informed consent may be provided, by a patient representative if practicable, and in exigent circumstances by health professionals . . . .” (Rains, supra, 32 Cal.App.4th at pp. 185-186, italics added.)18 We read the statute somewhat differently. (Compare Rains, supra, 32 Cal.App.4th at pp. 184-186 with
Because the threshold determination triggering the need for an IDT requires that there be no one “with legal authority to make” health care decisions on the patient’s “behalf,” we understand the patient’s representative designated to serve on the IDT as something different from a surrogate decisionmaker. (
It may be that, as a practical matter, the patient representative is the member of the IDT whose perspective comes the closest to being a stand-in for the patient—and perhaps is the one most likely to dissent, since it is the decision of the attending physician that is under review by the IDT. Nevertheless, we do not view the role of the patient representative as a proxy for the patient, in the sense of an advocate or an agent who takes guidance or instruction from a client or principal. The context here, a setting in which the patient cannot express his or her informed decision to anyone, makes that impossible. Where the patient’s attitudes and personal background are not known, the patient representative provides, at minimum, the perspective of an individual unaffiliated with the nursing home, who can be vigilant as to when judicial intervention is required.
As the IDT member uniquely responsible for presenting the patient’s perspective, the pаtient representative’s role on the IDT is essential. Despite the crucial function performed by the patient representative, the statutory language “where practicable” (
It is clear to us, as it was to the panel in Rains, that the Legislature intended to give nursing home residents something as close as possible to a voice on any IDT convened to make a determination about the resident’s health care, and that voice was to be communicated through a “patient representative.” (
5. Timing Considerations
a. Timing of Notice
Petitioners’ cross-appeal presents the question whether the due process clause of the state Constitution requires more than the relief the superior court provided, whether it requires notice of the proposed declaration of incapacity prior to the physician making the capacity decision, and likewise requires notice of the proposed lack of surrogate finding before that finding is made. (See Goldberg v. Kelly (1970) 397 U.S. 254, 261, 264-265 [requiring hearing before termination of welfare benefits, rather than after].)
We must reject petitioners’ contentions as to timing as being beyond the minimum requirements of due process. We can agree with them that giving notice before a capacity decision is made would maximize protection of the patient’s constitutional rights, and providing for a process more closely resembling an adjudication might increase that protection still further, but the question is whether the Legislature is required to provide that degree of protection as a matter of constitutional imperative.
In Goldberg v. Kelly the Supreme Court’s concern about the impact on individuals affected by the state action necessitated a pre-termination hearing for welfare recipients, for they would suffer a grievous loss if their benefits were cut off while awaiting the post-termination hearing afforded by the state. (397 U.S. at pp. 260-264.) The difference in circumstances makes it far more likely here that the treatment delays that would accompany a hearing prior to the capacity determination would work to the serious harm of nursing home residents needing immediate medical intervention. (Rains, supra, 32 Cal.App.4th at pp. 181-182section 1418.8 in 1992 was to establish a fair but streamlined procedure to be used in cases of incapacitated residents without family or friends to make health care decisions on their behalf. To require, as a matter of due process, all the features of a judicial proceeding would undermine the fundamental purpose of the statute, which was to avoid the complications and delays inherent in the judicial procedure established by Probate Code section 3200 et seq.
Timing constraints make petitioners’ proposed procedure infeasible. Notice immediately following a doctor’s determination of incapacity, with an opportunity for judicial review before treatment begins, satisfies due process. Although the statute provides no opportunity for the resident to oppose the incapacity decision before it is made, and no administrative review procedure separate from the IDT, it does allow for judicial review of the incapacity and surrogacy decisions. This complies with the requirements of due process. The statute presupposes the patient needs a medical procedure or prescription,
The Director’s amici argue that a ruling by this court requiring a judicial determination in each case, as a matter of course, would result in lengthy delays, and patients would go without needed medicine or medical procedures, resulting in suffering and possible death while waiting for a court ruling on capacity. Especially if antipsychotics cannot be prescribed by an IDT, they predict more nursing home patients will end up in mental hospitals. Additionally, more nursing home patients would have to be admitted to hospitals or urgent care facilities because their health problems would turn into emergencies while awaiting judicial action. Ultimately, the Director argues, nursing homes may refuse to accept patients subject to decisionmaking under
Petitioners clarify that a full-blown judicial proceeding such as that involved in
As we view the statute, there is an opportunity to be heard in court upon a petition under
The opportunity to be heard must be provided at a meaningful time and in a meaningful manner. (Goldberg v. Kelly, supra, 397 U.S. at p. 267; Armstrong v. Manzo, supra, 380 U.S. at p. 552.) Unless implementation of the physician’s recommended treatment is postponed until after a collaborative decision has been made by the IDT or judicial review has been completed, the medical procedure may have already been completed before the patient may realistically oppose the incapacity determination and the proposed medical intervention in court. This is why we conclude that, except in emergencies, to give nursing home residents a meaningful opportunity to be heard, the IDT’s decision on implementing treatment must be postponed until after notice has been given, and the treatment may not begin until after the resident has had an opportunity to seek judicial review.
1. The Requirement of a Judicial Determination of Decisional Capacity
Petitioners contend in their cross-appeal that a physician cannot lawfully decide whether the patient has decisional capacity because the question of capacity is inherently a legal one, not a medical one. (Qawi, supra, 32 Cal.4th at p. 17.) Because
Petitioners suggest, because
In its June 2015 order, the superior court noted that
The
Petitioners base their argument in large part on three sentences from Qawi, supra, 32 Cal.4th 1: “ ‘ “Competence is not a clinical, medical, or psychiatric concept. It does not derive from our understanding of health, sickness, treatment, or persons as patients. Rather, it relates to the world of law, to society’s interest in deciding whether an individual should have certain rights (and obligations) relating to person, property and relationships.” ’ ” (Id. at p. 17, quoting Riese v. St. Mary’s Hospital & Medical Center, supra, 209 Cal.App.3d at p. 1321.) From this premise, petitioners argue the statute’s placement of the decisionmaking about capacity with doctors rather than judicial officers deprives nursing home residents of their constitutionally-protected rights to make their own medical decisions.
We view the decision on incapacity as involving both medical and legal aspects: the decision on competency entails legal consequences and therefore may be considered primarily legal—as Qawi found—but it undeniably has a medical aspect as well. A person may become incompetent by reasons best
To convince us that the risk of error is so high that we should find a due process violation here, petitioners point to language in Qawi, supra, 32 Cal.4th 1 stating that “in order to give MDOs the same rights as LPS patients, an MDO can be compelled to take antipsychotic medication in a nonemergency situation only if a court, at the time the MDO is committed or recommitted, or in a separate proceeding, makes one of two findings: (1) that the MDO is incompetent or incapable of making decisions about his medical treatment; or (2) that the MDO is dangerous within the meaning of
We are not persuaded that Qawi calls for a judicial determination of incapacity. Just because a capacity determination has some legal consequences does not mean it must be made by a judge in every circumstance. In this statutory setting, the physician’s decision regarding capacity is guided by objective standards and requires an investigation regarding possible surrogacy and patient wishes. (
the patient‘s viewpoint is represented within the collaborative decisionmaking process of the IDT, due process is not violated. The regulations implementing section 1418.8 allow for the physician to make the incapacity determination only where the patient representative raises no objection. If an objection is raised, the incapacity decision must be made by a court. (
As Rains reasoned, the resident of a nursing home sacrifices a great deal of privacy by reason of the very circumstances that have placed him or her there. (Rains, supra, 32 Cal.App.4th at pp. 173-174.) Given their reduced expectation of privacy, Rains held, the incursions on nursing home residents’ rights to self-determination of medical treatment are not so severe as to call for increased protection of nursing home residents. (Id. at pp. 172-177.) Given most especially the participation of a patient representative (
To adopt petitioners’ view—requiring a judicial determination for every case of incapacity in every nursing home in the state—would throw us back into the thick of the problem that led to the enactment of section 1418.8 in the first place. We could not find our way there through any form of statutory construction, for that result would be diametrically opposed to the Legislature‘s intent. We would be justified in imposing such a requirement on section 1418.8 only if it were a matter of constitutional imperative, and it is not.
Rains rejected the idea that due process requires an adjudicative hearing to make an initial determination of incapacity. (Rains, supra, 32 Cal.App.4th at pp. 184-185.) “Capacity determination, which must be decided under section 1418.8 before required medical intervention is activated thereunder on potentially thousands of elderly nursing home patients in this state,24 would thereby be delayed, as would such treatment. No case cited to us, or disclosed by our independent research, has suggested that procedural due process requires postponement of medical intervention for a nursing home patient who is found by a physician to lack capacity to consent thereto until, in each case, the medical capacity issue is separately decided in some adversarial hearing. [¶] . . . Prompt and effective medical treatment of these unfortunate citizens would be seriously jeopardized [by such a ruling].” (Rains, at pp. 181-182.)
Rains also observed that the Legislature was better able to “reflect a proper balance of social values at stake in this significant and difficult problem, and that it has done so in enacting section 1418.8.” (Rains, supra, 32 Cal.App.4th at p. 182.) Thus, the Legislature, after conducting hearings and giving considerable thought to various options, elected to adopt a collaborative decisionmaking process rather than an adversarial one. Rains held due process was nevertheless assured because of the right to seek judicial review of a physician‘s determination of a patient‘s incapacity as well as to the medical intervention itself, pursuant to section 1418.8, subdivision (j). (Rains, at p. 182.) Thus, Rains held a judicial determination of decisional incapacity was not required, and the procedure prescribed under section 1418.8 did not violate a patient‘s due process rights. (Rains, at p. 184.)
With the exception of the notice issue previously discussed—where we build upon Rains in order to preserve section 1418.8‘s facial constitutionality—we embrace the Rains court‘s conclusion that an IDT decisionmaking framework comports with procedural due process (Rains, supra, 32 Cal.App.4th at p. 184), and we find no greater protection is necessary for nursing home residents under the privacy guarantee of the California Constitution. (Rains, at p. 178.) Nothing in Qawi convinces us Rains erred in its essential holding that the basic IDT procedure prescribed by section 1418.8 is constitutional.
If the decision is to be made by someone other than a judicial offiсer, petitioners argue, it must at least be someone uninvolved in the treatment of the resident. They rely in part on Washington v. Harper, supra, 494 U.S. 210, where the United States Supreme Court found a state prison inmate‘s federal due process rights were not violated, even though he was forcibly medicated, because an independent medical board determined he was a danger to himself and others and the treatment was in his medical interest. (Id. at p. 229.)
In Washington v. Harper, supra, 494 U.S. 210, under the institution‘s policy, before administration of antipsychotic drugs could begin, an inmate who refused such medication was entitled to a hearing before a special committee consisting of a psychiatrist, a psychologist, and the associate superintendent of the institution, none of whom could be, at the time of the hearing, involved in the inmate‘s treatment or diagnosis. (Id. at p. 215.) The policy also provided for notice, the right to be present at an adversary hearing, and the right to present and cross-examine witnesses. (Id. at p. 216.) If the committee determined by a majority vote that the inmate suffered from a mental disorder and was gravely disabled or dangerous, the inmate could be medicated against his will, provided the psychiatrist was in the majority. (Id. at pp. 215-216.) The Supreme Court found the provision of a neutral decisionmaking board significant in upholding the constitutionality of the prison‘s procedure. (Id. at pp. 233-235.)
Section 1418.8 does not provide for the same kind of independent decisionmaker, for the prescribing physician in California nursing homes makes an initial autonomous decision about the patient‘s incapacity, lack of a surrogate decisionmaker, and proposed treatment, and then is routinely included on the IDT that reviews those findings and the proposed treatment.25 (
Like the Rains court, we will not assume bias or self-interest on the part of a treating physician. (Rains, supra, 32 Cal.App.4th at pp. 181-182.) Physicians are governed by standards of practice and ethical oaths that lead us to presume they act in what they perceive to be their patients’ best interests.
3. Petitioners’ Argument that an Attending Physician Should Not Sit on the IDT
For the same reasons they contend an attending physician is non-neutral and cannot be a decisionmaker on capacity, petitioners argue that an attending physician should not be allowed to participate in reviewing his or her own recommended medical intervention in his or her own patient‘s case as a participant on an IDT. We reject this variation of petitioners’ physician bias argument for the reasons just stated.
4. Determination of Existence of Surrogate Decisionmaker
Whether a surrogate exists for the resident is a purely factual question that can be answered through a legal proof process, or an investigative one, which in our view could be conducted and determined by medical personnel or by legal personnel. With statutory guidance on how to conduct a fair and thorough investigation aimed at identifying a surrogate decisionmaker (
F. Facial Challenge: Additional Due Process Claims on Petitioners’ Cross-Appeal
Petitioners argue, largely on the basis of Washington v. Harper, supra, 494 U.S. 210, that additional procedural protections must be incorporated into section 1418.8 in order to bring it in line with the demands of due process. In formulating their objections to section 1418.8, petitioners attempt to convert
Seeking a procedure more protective of patients’ rights, petitioners suggest (1) the prescribing physician must not be allowed to participate on the IDT, (2) a patient should be provided with counsel or a counsel substitute in the determination of incapacity, and (3) the IDT is not allowed to review capacity and surrogacy decisions. Petitioners thereby attempt to engraft onto the statute an adversarial process, presided over by a judge, with two sides, each represented by counsel, taking opposing positions and entrusting resolution of their disagreement to a neutral judicial officer.
We have already rejected petitioners’ first argument for the reasons stated in parts IV.E.2 & IV.E.3., ante. Petitioners’ third point we resolve by holding that an IDT does have the authority to review an attending physician‘s capacity and surrogacy decisions. Given the requirement that it review medical interventions quarterly (
Nor are we persuaded that nursing home residents facing an incapacity determination must be provided with some form of legal representation. Here again petitioners presuppose that a resident perceived to lack decisional capacity must have input before the capacity determination is made. We have determined that notice after the determination, coupled with the availability of judicial review, satisfies due process. If the resident or someone on his or her behalf (
G. As-Applied Challenge: Use of Section 1418.8 in Prescribing Antipsychotic Medication
1. The Nature and Dangers of Antipsychotic Medications
Although antipsychotic drugs have been recognized to have considerable benefit to mentally ill patients, they also have severe side effects, including some reversible conditions, some irreversible, and even on rare occasions, sudden death. (Qawi, supra, 32 Cal.4th at pp. 14-15; Keyhea v. Rushen (1986) 178 Cal.App.3d 526, 531 (Keyhea); Washington v. Harper, supra, 494 U.S. at pp. 229-230.) Antipsychotics ” ‘also possess a remarkable potential for undermining individual will and self-direction, thereby producing a psychological state of unusual receptiveness to the directions of custodians.’ ” (Keyhea, at p. 531.) For this reason, authorities often seek to medicate prisoners and others under their control, and those subject to such medication often object. In light of the grave consequences of administering these antipsychotic drugs, courts have recognized that MDOs, as well as state prisoners threatened with forcible administration of antipsychotics, have procedural rights before they may be administered these drugs against their will. (Qawi, at pp. 20-21, 27-28; Keyhea, at pp. 541-542; Washington v. Harper, at p. 236.) The exact procedures required may vary from one context to another. (Morrissey v. Brewer, supra, 408 U.S. at p. 481.)
2. Antipsychotics as Prescribed in Nursing Homes
According to the Director and her supporting amici curiae, the administration of antipsychotics to nursing home residents proceeds much as described in section 1418.8, such drugs are extremely beneficial to the many nursing home patients who need them, and their use may be considered “nonintrusive” and “routine” in nursing homes. (See Rains, supra, 32 Cal.App.4th at p. 186.) Health and Safety Code section 1418.9 specifically authorizes the prescription of antipsychotics to a nursing home patient after seeking the consent of the resident and notifying “an interested family member,” and so long as the resident does not object. (
The Director and her amici point out the broad purposes of section 1418.8, namely to “secure, to the greatest extent possible, health care decisionmakers” for unrepresented residents lacking decisionmaking capacity “to ensure that the medical needs of nursing facility residents are met even in the absence of a surrogate health care decisionmaker.” (Stats. 1992, ch. 1303, § 1(c), p. 6327.) They claim the protections built into section 1418.8, together with other protections in the regulatory environment, are sufficient to satisfy the residents’ constitutional rights to autonomy privacy and due process. They also point out that more modern atypical antipsychotics have fewer side effects and are now frequently used in nursing homes because they can be administered orally instead of by injection. (Qawi, supra, 32 Cal.4th at p. 15.) These newer medications are also controversial for use in institutional settings, however, because administration requires patient cooperation.26 (Qawi, at p. 15.)
Petitioners and their amici tell a decidedly different tale. They begin with the fact that the “attending physician and surgeon” referenced in section 1418.8 is frequently the nursing home‘s medical director. The attending physician is, at any rate, usually assigned to the resident, not chosen
Studies have shown that residents of nursing homes tend to be overmedicated with antipsychotics. (E.g., Alice F. Bonner, Rationales That Providers and Family Members Cited for the Use of Antipsychotic Medications in Nursing Home Residents with Dementia (2015) 63 J. Am. Geriatrics Soc‘y. 302, 302; Jan Goodwin, Antipsychotics Overprescribed in Nursing Homes, AARP BULLETIN (July/Aug. 2014) <https://www.aarp.org/health/drugs-supplements/info-2014/antipsychotics- overprescribed.html> [as of July 22, 2019].) This is a special concern not only because of the severe side effects ordinarily associated with these drugs, but because the effects are much more detrimental in elderly patients (Prakash S. Masand, Side Effects of Antipsychotics in the Elderly (2000) 61 J. Clinical Psychiatry 43, 43), and those over age 65 make up nearly 85 percent of the population in nursing homes nationwide. (<https://www.cdc.gov/nchs/data/series/sr_03/sr03_038.pdf>, p. 35 [as of July 22, 2019].)
The Director argues, however, that such problems have been recognized and addressed, and abuse of antipsychotics in nursing homes has sharply declined in recent years. Current datа indicate that as of the fourth quarter of 2018, antipsychotic use has been reduced to 11.1 percent of California nursing home residents, a 48.5 percent reduction since 2011. (Centers for Medicare and Medicaid Services (CMS), National Partnership to Improve Dementia Care in Nursing Homes: Antipsychotic Medication Use Data Report, Quarterly Prevalence of Antipsychotic Use for Long-Stay Residents, States (April 2019) <https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/Antipsychotic-Medication-Use-Data-Report.pdf> [as of July 22, 2019].) This represents the fourth lowest prevalence of use among the 50 states. (Ibid.) The statewide prevalence of 11.1 percent is well below the national average of 14.6 percent. (Ibid.) Thus, the Director argues, past abuse provides no legitimate reason for declaring nursing home residents to have special due process protections in the administration of antipsychotics, where the regulatory system already rigorously controls the use of antipsychotics in nursing homes. As for the risks involved with antipsychotics, the Director points out that other common medications, such as insulin and blood thinners, are riskier and have been connected with far more adverse events and deaths than antipsychotics.
Through the Nursing Home Reform Act, which applies to almost all California nursing homes,27 and its implementing regulations, the federal government has sought to reduce over-prescription of psychotherapeutic drugs by explicitly limiting their use in nursing homes. The law expressly provides that psychopharmacologic drugs may be administered to nursing home residents only on the orders of a physician as part of a written plan of care “designed to eliminate or modify the symptoms for which the drugs are prescribed,” and only if, at least annually, an “independent, external consultant reviews the appropriateness of the drug plan of each resident receiving such drugs.” (
The law also provides that nursing home residents have a right to be free from “chemical restraints imposed for purposes of discipline or convenience and not required to treat the resident‘s medical symptoms.” (
“The information material to a decision concerning the administration of a psychotherapeutic drug or physical restraint, or the prolonged use of a device that may lead to the inability of the patient to regain use of a normal bodily function shall include at least the following: [¶] (1) The reason for the treatment and the nature and seriousness of the patient‘s illness. [¶] (2) The nature of the procedures to be used in the proposed treatment including their probable frequency and duration. [¶] (3) The probable degree and duration (temporary or permanent) of improvement or remission, expected with or without such trеatment. [¶] (4) The nature, degree, duration and probability of the side effects and significant risks, commonly known by the health professions. [¶] (5) The reasonable alternative treatments and risks, and why the health professional is recommending this particular treatment. [¶] (6) That the patient has the right to accept or refuse the proposed treatment, and if he or she consents, has the right to revoke his or her consent for any reason at any time.” (
The Director assures us the Department, too, is concerned about overuse of antipsychotic drugs in nursing homes. She nevertheless appeals the superior court‘s order requiring judicial approval of such prescriptions, arguing (1) the legislative history of section 1418.8 shows it was intended to allow the IDT procedure for prescription of antipsychotics; (2) no restrictions on such use of the statute are mentioned in the statute itself; and (3) due to efforts by the Department and other agencies over the past few years, prescriptions of antipsychotics in nursing homes have declined by more than 48 percent in California. (See part IV.G.2, ante.) The Department argues that without availability of the IDT procedure, patients who need antipsychotics will not get them in a timely manner and will suffer distress and possibly transfer to an acute care or psychiatric facility as a result. The Department has never condoned or encouraged the abuse of antipsychotics in nursing homes, so far as we can tell from the record.
4. The Legal Background
Rains did not discuss the administration of antipsychotic drugs to nursing home patients found incompetent under section 1418.8. The only inferential reference to antipsychotic drugs in section 1418.8 itself is the authorization of “chemical restraints” in an emergency, without a prior IDT determination to administer such restraints. (
We are convinced that context matters, and the same procedures employed in prison settings need not be employed in nursing homes, not because nursing home residents are less worthy of protection (obviously they are not),
The right to refuse antipsychotic medication is not absolute but may be limited by countervailing state interests. (Qawi, supra, 32 Cal.4th at p. 15.) Rains held the state‘s interest in providing care to its citizens who are unable to care for themselves on a timely basis is a compelling state interest (Rains, supra, 32 Cal.App.4th at p. 176), and we agree with that assessment. Courts have permitted unconsented medical treatment of an adult when that adult has been adjudged incompetent. (Qawi, supra, 32 Cal.4th at pp. 15-16; Wendland, supra, 26 Cal.4th at p. 535.) We conclude the same result should hold true when an individual has been deemed incapacitated by his or her attending physician and lawfully prescribed an antipsychotic drug through an IDT process under section 1418.8.
In Keyhea, supra, 178 Cal.App.3d 526, a taxpayer action was brought challenging the practice at the California Medical Facility (CMF) of involuntary treatment of prisoners with antipsychotic drugs. The decision to administer antipsychotic drugs involuntarily on a long-term basis was made by the chairman of an institutional review board upon referral by a prison psychiatrist. (Id. at p. 531.) The chairman‘s decision would be made after an oral presentation by the referring psychiatrist, a review and discussion of the patient‘s file by the board members, and an interview of the prisoner. (Ibid.) CMF‘s internal procedure provided for the board to review the decision to medicate every 90 days. (Ibid.)
Under CMF‘s policy, inmates were afforded no right to counsel at board hearings and no right to judicial review. (Keyhea, supra, 178 Cal.App.3d at p. 531.)
Qawi also found procedures used for prescribing antipsychotic drugs to MDOs were insufficient to protect their rights, but again, it made the ruling as a matter of statutory construction, not constitutional analysis. ( Qawi, supra, 32 Cal.4th at pp. 24-25.) Washington v. Harper examined an institution‘s procedure for prescribing antipsychotics to prisoners and found it met constitutional requirements. (See parts IV.E.1 & IV.F, ante.) It did not thereby establish each feature of that procedure as a requirement of due process. In sum, none of the cases cited by petitioners sets specific due process requirements when state authorities prescribe antipsychotic drugs for persons in their custody or subject to their control.
Moreover, in each of the cases just discussed, there was a question of forcible administration of antipsychotics. In other words, we know the institutionalized individual objected to the administration of the drugs, whereas in considering a challenge to section 1418.8, the viewpoint of the patient is unknown. If the patient objects to being given antipsychotics, judicial review is available, and treatment with antipsychotics is usually not so urgent that the judicial process is unworkable for purposes of review. If the patient is not so staunchly opposed to the proposed medication, the IDT may be used as a viable first step to attempt to reach consensus on whether the medication should be administered. We have already held that the IDT process complies with due process, and that is true regardless of the nature of the medical intervention.
5. The Superior Court‘s Decision
The superior court‘s judgment on the antipsychotics issue included the following directive:
“II. [¶] (A) That the use of Health and Safety Code section 1418.8 is prohibited for the administration of antipsychotic drugs to residents unless authorized pursuant to the procedures set forth in Probate Code section 3200 et seq., except in emergency situations as emergencies are defined under California law; [¶] (1) Provided, however, that for those residents already receiving an antipsychotic drug pursuant to the process set out in section 1418.8, subdivision (e), the facility is prohibited from continuing to implement the prescription or order for such drug, after 180 days following issuance of this writ, absent: (a) notification in writing of the right to contest the above determinations and decision set forth in I. above; and (b) implementation by the Department of procedural safeguards consisting of either a judicial finding of incompetency as in In re Qawi (2004) 32 Cal.4th 1 or Keyhea v. Rushen [(1986)] 178 Cal.App.3d 526, or an independent review process with notice and opportunity to be heard as in Washington v. Harper (1990) 494 U.S. 210.”
The superior court thus read Washington v. Harper, Qawi, and Keyhea, as establishing the procedural safeguards necessary for due process. The trouble is, as described above, none of those cases sets forth minimum constitutional requirements for a procedure used to administer antipsychotics even in the context in which they were set; they certainly did not set forth constitutional due process requirements for determination of medication needs in nursing homes.
6. As a Matter of Statutory Construction, There is No Basis for Treating Prescription of Antipsychotics Differently from Other Proposed Medical Interventions
In construing a statute, we turn first to the words used, for that is the best indicator of legislative intent. (Ramirez v. City of Gardena (2018) 5 Cal.5th 995, 1000; see Lippman v. City of Oakland, supra, 19 Cal.App.5th at p. 756.) Looking at the statutory text here, the specific question presented is whether a prescription for antipsychotics is a “medical intervention” as used in section 1418.8, subdivision (a). We conclude it is.
Although we, too, begin with the foundation established by the holding in Rains—which we view as basically sound—this case presents issues outside the context of the “routine, day-to-day” medical decisionmaking, and those
Rains relied on language in the preamble to section 1418.8 suggesting it was required to make sure nursing homes could secure substituted consent to meet their patients’ medical needs, 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.) The preamble, by our reading, does not limit section 1418.8‘s application to those “day-to-day” decisions, however. Although the conception of section 1418.8 the Rains court adopted in passing on the issue of facial constitutionality appears to be predicated on an understanding that the preamble may be read as, in effect, a limitation on the reach of the statute, this case requires us to confront the question in a specific setting, as applied. While we otherwise agree with the Rains holding, on this specific point we do not. (People v. Allen (1999) 21 Cal.4th 846, 858-861 (Allen) [uncodified statement of legislative intent may not be read into the text of the statute itself to justify construction contrary to plain meaning].)
We see no evidence in the text of the statute that the preamble was intended to be anything more than illustrative. Giving the operative statutory text its plain meaning, as we must, we conclude that section 1418.8 was drafted with breadth enough to cover antipsychotic medications, even though their effects on patients is anything but “routine.” In an apparent effort to fit the case within Rains, the Director asserts, to the contrary, that the administration of antipsychotic drugs is “routine” in nursing homes. Finding no support for this position, the superior court rejected the argument that administering antipsychotics could accurately be characterized as “nonintrusive and routine, ongoing” care. It was justified in doing so, but even if administration of antipsychotic drugs in nursing homes is “routine” in the sense that it is common, as several amicus briefs suggest, we find the issue to be beside the point because we do not view section 1418.8 to be limited to “routine” medical interventions.
7. As a Matter of Due Process, Residents are Entitled to No Greater Rights in the Prescription of Antipsychotic Medications than in Any Other Prescription
We see no textual reason for excepting antipsychotic medications from the procedure established in section 1418.8, and no mode of constitutional analysis requires us to read it that way. The same due process safeguards found to be required in the inherently coercive context of involuntary commitments are not required here. (Rains, supra, 32 Cal.App. 4th at pp. 186-187People v. Ramirez, supra, 25 Cal.3d at p. 268, quoting Morrissey v. Brewer, supra, 408 U.S. at p. 481.)
Although we part ways with Rains in assessing the breadth of the statute, we see the context in essentially the same way that court did. The situation here is that of individuals, often elderly and poor, who have been determined by their doctors to lack the capacity to make their own medical decisions, who have no advance directive, no conservator, no surrogate decisionmaker, and no next of kin or other family or friends to speak up for them. As a premise to application of the statute, we will often know nothing about their wishes in the circumstances. Their privacy and self-determination interests,
We admit to alarm at the descriptions of rampant abuse of antipsychotic medications that are contained in the amicus curiae briefs filed on behalf of the petitioners, as well as petitioners’ somewhat anecdotal evidence submitted at trial. We anticipate that the changes we have mandated as a matter of due process—written notice to the resident and at least one additional supportive person, an opportunity to oppose treatment and capacity determinations in the IDT process by mandatory participation of a patient representative, and the opportunity for a judicial decision via judicial remedies authorized by section 1418.8, subdivision (j)—will help to prevent future abuse of antipsychotics in nursing homes. Those changes, together with vigilant enforcement of existing laws and regulations, should offer protection to nursing home patients, while not requiring judicial intervention in every prescription of antipsychotic medication.
H. As-Applied Challenge: Applicability of Section 1418.8 to End of Life Decisions
1. The Trial Court‘s Ruling and the Contentions of the Parties
In the last set of issues framed by the parties, we are tasked with reviewing an injunction against the use of section 1418.8 “to make end of life decisions regarding the withholding or withdrawal of life-sustaining treatment for [nursing home] residents,” subject to four exceptions, first for decisions implementing a patient‘s wish to end life, second for decisions carrying out a patient‘s instructions, third for decisions to decline patient instructions for ineffective care or care contrary to generally accepted medical standards, and fourth for decisions to cease curative care and begin hospice care. The injunction issued upon an order granting petitioners’ request for a writ of mandate on their eighth cause of action, which attacks the use of section 1418.8 “for treatments or discontinuation thereof which would result in death, such as, but not limited to[,] do not resuscitate, comfort care or discontinuation of treatment, or for POLST orders.” (Italics added.)28
hospice care.30 The Director urges us, however, not to reach the merits of the issue because the superior court‘s order was an advisory opinion, because the review of that order raises issue that are not yet ripe for
2. Justiciability
We rejеct the contention that any review of the superior court‘s ruling on the use of
3. Petitioners Have Not Established That Section 1418.8 Has Been Used for True “End of Life” Decisions
Turning to the merits, we will reverse the order granting writ relief on the petitioners’ eighth cause of action. We see no evidence in the record to support any use of IDT‘s by nursing homes to make end of life decisions which result in death, which is what petitioners alleged and here on appeal remains the thrust of their argument, supported by repeated references in their briefs to “life ending” decisions.31 The evidentiary record supporting the eighth cause of action consists of a series of declarations from social workers and ombudsmen knowledgeable about practices of nursing facilities in different parts of the state, and relatives of individuals who have passed away but
There is an evidentiary gap between what was pleaded on this issue and what was proved. The problem here is that the principal case cited by the petitioners in support of the eighth cause of action, and relied upon by the superior court in issuing writ relief on that claim, Wendland, supra, 26 Cal.4th 519, does not speak of “end of life decision[making].” That broad phrase, which the superior court adopts in its order granting writ reliеf, encompasses a range of decisions that may lead to the process of dying, or relate to it in some way, but that do not themselves “result in death.” Especially given the magnitude of the issues presented here, we think it important to speak with precision about the types of decisions at issue in this case—as established by the evidence presented—rather than in broad generalities.
4. This Case Is Not Governed by Wendland
At issue in Wendland was a stark, life-or-death decision about whether to withhold life support from a conscious but incapacitated patient who faced imminent death without it. (Wendland, supra, 26 Cal.4th at pp. 523-524.)
Rose Wendland, Robert‘s wife and conservator, authorized a series of surgeries to replace dislodged feeding tubes, but when asked to do so on a fourth occasion, declined to approve it. (Wendland, supra, 26 Cal.4th at pp. 525-526.) Robert‘s treating physician inserted a temporary tube pending decision from the hospital ethics committee, and that committee ultimately supported Rose‘s decision. (Id. at p. 526.) The case arose when Robert‘s mother and sister objected to Rose‘s instruction to the medical team that they remove his temporary feeding tube and let him die. (Id. at p. 524.) Because there was an objection, Rose sought approval for her proposed decision from the probate court, where she argued that as conservator she had exclusive authority to make all medical decisions on Robert‘s behalf she deemed appropriate so long as she believed they were in his best interest. (Id. at pp. 552-553.) Our Supreme Court ultimately determined that the trial court properly denied Rose‘s request. (Id. at p. 524.)
As framed in the Supreme Court, the issue presented was whether a conservator may “withhold artificial nutrition and hydration from a conscious conservatee who is not terminally ill, comatose, or in a persistent vegetative state, and who has not left formal instructions for health care or appointed an agent or surrogate for health care decisions.” (Wendland, supra, 26 Cal.4th at pp. 523-524.) “Interpreting
It seems clear why petitioners characterize the IDT determinations they seek to challenge in the eighth cause of action, in blunt terms, as “decisions
We are unpersuaded Wendland is controlling here. That case, at its core, turns on ” ‘the “gravity of the consequences that would result from an erroneous determination of” ’ ” a decision to remove a conscious but impaired patient from life support. (Wendland, supra, 26 Cal.4th at p. 546.) By contrast to situations where there is ” ‘the potential that a wrong decision will eventually be corrected or its impact mitigated[,] [a]n erroneous decision to withdraw life-sustaining treatment . . . is not susceptible of correction.’ ” (Id. at p. 547.) To deal with circumstances where the “ultimate decision is whether a conservatee lives or dies” and the risk of error is that the conservator‘s decision will “subject him to starvation, dehydration, and death” while he silently dissents but cannot speak (ibid.), the Wendland court chose to set the conservator‘s burden of proof at a level high enough to protect the conservatee‘s fundamental right to personal autonomy. And that called for the most demanding civil burden—clear and convincing proof. (Id. at p. 554.)
None of the IDT decisions set forth in petitioners’ declarations involving POLSTs, DNR orders or hospice care are life or death decisions that would expose the patient to “starvation, dehydration, and death.” (Wendland, supra, 26 Cal.4th at p. 547.) They are all decisions that, if erroneous, nonetheless remain subject to change within an IDT process that meets the constitutional requisites we have set forth in this opinion. None involves a decision that, at least so far as the record here shows, directly and inexorably resulted in death. It seems to us that they are better characterized, instead, as decisions made in anticipation of the end of life, since they all have to do with ensuring comfort and quality of life, as a patient‘s end draws near.33 Anyone subject to
5. Section 1418.8 Covers the IDT Decisions Being Chаllenged in This Case
As a matter of statutory interpretation, separate from their reliance on Wendland, petitioners argue that
As for the second step in petitioners’ statutory interpretation argument—that the statute allows affirmative decisions to initiate treatment, but not decisions to withhold or cease treatment—the logic is strained, and we reject it. Drabick, supra, 200 Cal.App.3d 185, declined to adopt a similarly circumscribed construction of
We close with another apt observation from Drabick, one that we think sums up well, in a general way, the importance of upholding
Among other things, the Drabick court said this: “Once it is acknowledged that William Drabick has a right to have medical treatment decisions made in his best interests, it is readily apparent thаt the right is meaningless unless someone is permitted to make the decisions. To delegate an incompetent person‘s right to choose inevitably runs the risk that the surrogate‘s choices will not be the same as the incompetent‘s hypothetical, subjective choices. Allowing someone to choose, however, is more respectful of an incompetent person than simply declaring that such a person has no more rights. . . . As another court has observed, ‘[w]e do not pretend that the choice of [the incompetent‘s] parents, her guardian ad litem, or a court is her own choice. But it is a genuine choice nevertheless—one designed to further the same interests she might pursue had she the ability to decide herself. We believe that having the choice made in her behalf produces a more just and compassionate result than leaving [her] with no way of exercising a constitutional right
The petitioners suggest there is indeed a way to ensure incapacitated, unbefriended nursing home residents may exercise their constitutionally protected rights, and that is to recognize a right to counsel and adjudication of those rights in a judicial forum. It is far from clear to us, however, that the adversary process which is so familiar to us in the court system is the optimal default means for decisions of the kind we have here, which are often as much ethical as they are medical and legal. (Drabick, supra, 200 Cal.App.3d at p. 204.)
V. DISPOSITION
The judgment is reversed and the cause is remanded to the superior court with directions to dissolve its injunction enjoining the enforcement and use of
The superior court shall enter a modified judgment declaring that, to preserve the constitutionality of the statute, the court interprets
- Notice: Written and oral notice must be provided to every resident for whom
section 1418.8 is invoked, of (a) any determination of the resident‘s incapacity; (b) any determination that no surrogate decisionmaker for the resident is available; (c) any medical intervention proposed by the attending physician; (d) the fact that a decision will be made by the IDT on a proposed medical intervention; (e) the resident‘s right to have a patientrepresentative participate in IDT decisionmaking; and (f) the resident‘s right to judicial review of IDT decisions under section 1418.8, subdivision (j) . All such written notifications must be made not only to the resident, but also to at least one competent person whose interests are aligned with the resident. - Opportunity to be Heard: Except in emergenсy circumstances, no medical treatment decision by an IDT on behalf of a resident may be implemented until (a) after notice of the decision has been provided to the resident and (b) the resident has been given a reasonable opportunity to seek judicial review of the decision under
section 1418.8, subdivision (j) . - Composition of IDT: Except in emergency circumstances, (a) every IDT must include a patient representative, and (b) where the resident has no family or friend willing to serve on the IDT, someone unaffiliated with the nursing home must be found to serve as the patient representative.
In addition, the superior court‘s modified judgment shall declare that the IDT process may be used (1) to authorize the administration of antipsychotic medications in nursing homes to the extent authorized by state and federal law, and (2) for decisions to create or make a change to POLSTs, DNRs or comfort care orders, and to transfer patients to hospice care.
The parties shall bear their own costs on appeal.
STREETER, J.
We concur:
POLLAK, P. J.
TUCHER, J.
A147987/California Advocates for Nursing Home Reform v. Smith
A147987/California Advocates for Nursing Home Reform v. Smith
Trial Court: Alameda County Superior Court
Trial Judge: Hon. Evelio M. Grillo
Counsel:
Morton P. Cohen; Law Offices of Amitai Schwartz and Amitai Schwartz for Plaintiffs and Appellants.
BraunHagey & Borden, Matthew Borden, and J. Noah Hagey 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 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 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 for California Association of Health Facilities as Amicus Curiae on behalf of Defendant and Appellant.