In a written opinion filed on June 24, 2015, the Superior Court of the State of California County of Alameda (“Superior Court”) determined that a California law that nursing homes had been using since 1992 to justify making unilateral decisions regarding medical care and treatment provided to “unrepresented” nursing home residents was unconstitutional because the law failed to provide sufficient due process (notice) to such residents that they had been determined to be incapacitated and that medical decisions were being considered without their input.
California’s Long-Term Care, Health, Safety, and Security Act of 1973, Section 1418.8(a), provides: “If the attending physician and surgeon of a resident in a skilled nursing facility or intermediate care facility prescribes or orders a medical intervention that requires that informed consent be obtained prior to administration of the medical intervention, but is unable to obtain informed consent because the physician and surgeon determines that the resident lacks capacity to make decisions concerning his or her health care and that there is no person with legal authority to make those decisions on behalf of the resident, the physician and surgeon shall inform the skilled nursing facility or intermediate care facility.” Source
Section 1418.8 was enacted in 1992 to allow certain incompetent residents of skilled nursing facilities (nursing homes) and intermediate care facilities to receive medical treatment after a physician has determined that a resident is incapable of giving informed consent to such treatment and there is no person with legal authority to make such decisions on behalf of that resident.
The issue raised by the plaintiff in the California case was whether a resident’s due process rights under California’s Constitution are violated by failing to provide notice and opportunity to the resident to oppose the determination of lack of capacity, absence of a legal substitute decision maker, and the prescribed medical intervention (Article I, section 7, subdivision (a) of the California Constitution provides, in part: “A person may not be deprived of life, liberty, or property without due process of law…”)
The Superior Court noted that Section 1418.8 takes away a resident’s ability to both make decisions regarding their own health care and to designate a person on the resident’s behalf to make such decisions, and that the right of privacy under the California Constitution guarantees an individual’s freedom to choose to reject or refuse to consent to intrusions of bodily integrity (Section 1418.8 only requires the physician to notify the skilled nursing facility or intermediate care facility regarding these determinations but does not require that the resident be notified).
The Superior Court stated in its written decision that it failed to see how a resident is afforded due process if it is not required that a resident be provided with notice that these determinations have been made as well as advised of the resident’s right to seek court review. The Superior Court therefore held that Section 1418.8(a) is facially unconstitutional in that it violates a resident’s due process rights by failing to provide for adequate notice and opportunity to the resident to oppose the determination of incapacity, the determination of the absence of a legal substitute decision maker, the prescribed medical intervention, and notice of the right to seek review under Section 1418.8(j).
Administration Of Antipsychotic Drugs
The Superior Court further stated that the administration of antipsychotic drugs to patients in skilled nursing facilities and intermediate care facilities was not intended as part of the medical intervention permitted under the statutory procedure set forth in Section 1418.8 (antipsychotic drugs are not nonintrusive and routine ongoing medical intervention, and they have many serious side effects). The Superior Court determined that Section 1418.8, as applied by the Department to permit administration of antipsychotic drugs, was unconstitutional, and that compliance with the procedures set forth in Probate Code Section 3200, et seq., was still required, except in emergency situations.
Life Sustaining Treatment
The Superior Court also stated that an incompetent resident in a skilled nursing facility or intermediate care facility retains his or her right to refuse life sustaining treatment, and for those wishes to be carried out to the extent possible, unless a physician or health care facility declines to carry out such wishes because it would result in medically ineffective health care or health care contrary to generally accepted health care standards applicable to the health care provider or institution.
We caution that the Superior Court’s decision is subject to appellate review.
If you or a loved one suffered injury (or worse) due to nursing home abuse, nursing home neglect, or nursing home negligence in California or elsewhere in the United States, you should promptly find a nursing home claim lawyer in California or in your state who may investigate your nursing home claim for you and represent you or your loved one in a nursing home case, if appropriate.
Turn to us when you don’t know where to turn.