Cal. Advocates for Nursing Home Reform v. Smith

Filed 7/22/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
CALIFORNIA ADVOCATES FOR
NURSING HOME REFORM et al.,
Plaintiffs and Appellants, A147987
v. (Alameda County
KAREN SMITH, as Director, etc., Super. Ct. No. RG13700100)
Defendant and Appellant.
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 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
1
physician’s predicate determinations that the patient lacks capacity, has no surrogate
decisionmaker, 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
2
facilities and intermediate care facilities 1 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 [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,
1
Skilled nursing facilities provide 24-hour skilled nursing and supportive care to
resident individuals whose primary need is for the availability of skilled nursing care on
an extended basis. (See Health & Saf. Code, § 1250, subd. (c)(1).) Intermediate care
facilities provide 24-hour inpatient care to individuals who are developmentally disabled
or who otherwise do not require continuous skilled nursing care, but have recurring need
for skilled nursing supervision and require supportive care. (See id., § 1250, subds. (d),
(g) & (h).) We will refer to skilled nursing facilities and intermediate care facilities
collectively and generically as nursing homes through the remainder of the opinion. We
use “patient” and “resident” interchangeably, in each case referring to one who lives in a
nursing home.
3
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.)
4
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
decisionmaker. 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 decisionmaker, 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 the medical intervention.” (§ 1418.8,
subd. (e).) The IDT must include “the resident’s attending physician, a registered
professional nurse with responsibility for the resident, other appropriate staff in
5
disciplines as determined by the resident’s needs, and, where practicable, a patient
representative.” (Ibid.) We note, however, the only required participants are the
attending physician (who is often the medical director of the nursing home) and a nurse
(employed by the nursing home). (Ibid.) The patient representative may be a “family
member or friend of the resident who is unable to take full responsibility for the health
care decisions of the resident,” or any “other person authorized by state or federal law.” 2
(§ 1418.8, subd. (f).) The medical records documenting the attending physician’s
determinations that the resident lacks capacity to provide informed consent and lacks a
surrogate decisionmaker must be made available to the patient representative, if the
resident has one. (Id., subd. (l).) There is no requirement that the same records be made
available to the resident. For patients without a representative, as is often the case, no
one receives the information intended for the resident.
The IDT, in reviewing a proposed treatment decision, must consider each of the
following: (1) The “physician’s assessment of the resident’s condition”; (2) “The reason
for the proposed use of the medical intervention”; (3) The “desires of the resident,” based
on a patient interview, medical records review, and consultation with any identified
family or friends; (4) The “type of medical intervention to be used in the resident’s care”;
2
“Persons who may act as the patient’s representative include a conservator, as
authorized by Parts 3 and 4 of Division 4 of the Probate Code (commencing with Section
1800), a person designated as attorney in fact in the patient’s valid Durable Power of
Attorney for Health Care, patient’s next of kin, other appropriate surrogate decisionmaker
designated consistent with statutory and case law, a person appointed by a court
authorizing treatment pursuant to Part 7 (commencing with Section 3200) of Division 4
of the Probate Code, or, if the patient is a minor, a person lawfully authorized to represent
the minor.” (Cal. Code Regs., tit. 22, § 72527, subd. (d).) When read within the context
of the overall statutory scheme, this open-ended definition of surrogacy contemplates
that, in some circumstances (i.e., a conservator, an attorney in fact, next of kin), a “patient
representative” might also be an agent in the sense of someone legally authorized to act
on behalf of the patient for certain purposes, but since definitionally a patient
representative serves only where there is no one available to “to take full responsibility
for the health care decisions of the resident,” the “patient representative” is not the
patient’s legal delegate for health care decisionmaking. (§ 1418.8, subd. (f); see post
pp. 31-32.)
6
(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.” (§ 1418.8,
subd. (e)(1)-(6).) Any treatment initiated pursuant to section 1418.8 must be done “in
accordance with acceptable standards of practice.” (Id., subd. (d).) The IDT must
reevaluate the treatment “at least quarterly or upon a significant change in the resident’s
medical condition.” (Id., subd. (g).) Though the statute makes no mention of the IDT
reviewing capacity determinations, the Department presented evidence at trial that IDT’s
can and do review capacity determinations made by attending physicians. Petitioners
argue section 1418.8 does not authorize such in-house review of capacity and surrogacy
decisions, and they claim the superior court erred in adopting the Department’s
interpretation that the statute allows the IDT to review those predicate decisions.
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. (§ 1418.8, subd. (h).) Generally speaking, “chemical restraints” are
antipsychotic medications. (See Cal. Code Regs., tit. 22, § 72018 [a chemical restraint is
“a drug used to control behavior and used in a manner not required to treat the patient’s
medical symptoms”].) If physical or chemical restraints are applied, the IDT must meet
“within one week of the emergency for an evaluation of the medical intervention.”
(§ 1418.8, subd. (h).)
Section 1418.8 preserves the right of a resident “to seek appropriate judicial relief
to review the decision to provide the medical intervention.” (§ 1418.8, subd. (j).) Under
that provision, “affected persons or their representatives, such as a friend, public
guardian, or other concerned person or entity, are afforded an avenue by which they may
obtain ‘appropriate judicial relief,’ including a temporary restraining order and other
injunctive relief prior to treatment, thereby satisfying due process principles.” (Rains,
supra, 32 Cal.App.4th at p. 185.) Judicial review “may encompass review of the initial
medical determination that the patient lacks capacity to give informed consent[.]” (Id. at
p. 185, fn. 7.)
7
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 long-term care
consumers. Through direct advocacy, community education, legislation and litigation,
CANHR has sought to educate and support nursing home residents and their advocates
regarding their legal rights and remedies and to create a united voice for long-term care
reform and humane alternatives to institutionalization. The superior court found CANHR
had public interest standing to pursue the causes of action raised in this case, and we
agree. (Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal. 4th
155, 167.)
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 section 1418.8 expressly requires such notice. Gloria A. learned she
had been declared incapacitated only because she tried to go on a picnic with another
resident and her sister, and she was not allowed to leave the facility based on her doctor’s
orders and his finding of incapacity. Gloria A. believed she was competent and was told
by her social worker she was competent. Gloria A. was later given antipsychotic
medication, though she hated it and never consented to it, at the decision of an IDT.
Because of her supposed incapacity, she also lost control over her finances. Gloria A.
died four months after the petition was filed in superior court.
Petitioner Anthony Chicotel is a taxpayer who challenges the expenditure of tax
money in enforcing section 1418.8, which he claims is unconstitutional. (See Vasquez v.
State of California (2003) 105 Cal. App. 4th 849, 854.)
8
In October 2013, CANHR and Gloria A. filed a petition for writ of mandate,
declaratory relief, and an injunction, challenging section 1418.8 as unconstitutional on its
face and as applied, alleging eight respects in which the statute is unconstitutional or
otherwise unenforceable, as set forth in eight separate causes of action: (1) the absence
of prior notice and the opportunity for a meaningful hearing; (2) the absence of
representation for the resident at the incompetence and surrogate determinations; (3) the
absence of a requirement of an adjudication of incompetence; (4) the need for a neutral
person or body to decide all issues of incapacity, surrogacy and treatment; (5) the need
for neutrals to review and give consent to the treatment; (6) the need for and absence of
enforcement as to the purported statutory requirement of a patient representative at the
review and for the patient representative to consent to the treatment; (7) the need for full
due process rights in applying the statute to administer antipsychotic drugs; and (8) the
need for full due process rights in applying the statute to withdraw treatment and cause
death.
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 section 1418.8 is facially unconstitutional under the state due
process clause (Cal. Const., art. I, § 7) and enjoined its use on grounds that the statute
does not require adequate notification in writing to a nursing home resident regarding (1)
the physician’s determination of incapacity; (2) the physician’s determination that there is
no surrogate decisionmaker; (3) the medical intervention prescribed by the physician and
the referral to the IDT for decisionmaking regarding the treatment; and (4) the
availability of judicial review of any such decisions made by the physician or the IDT.
9
The superior court did not hold such notice was required prior to an incapacity decision
being made by the physician, but presumably notice would be required before the IDT
made a decision on the recommended treatment. The superior court did not specify that
the medical intervention could not be implemented until after the capacity decision was
reviewed by the court if the resident sought judicial review, but that requirement is
implicit in the “ ‘opportunity to be heard’ ” at a meaningful time and in a meaningful
manner. (Armstrong v. Manzo (1965) 380 U.S. 545, 552.)
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 that section 1418.8, as applied, violates residents’
state constitutional autonomy privacy rights without due process insofar as it has been
used to authorize administration of antipsychotic medications without notice and an
opportunity to be heard, and without a judicial determination of incapacity or any form of
review by a neutral decisionmaker. Petitioners presented evidence, amplified by their
supporting amici curiae, suggesting that antipsychotics are administered to nursing home
residents for off-label use far too often, not to treat patients’ mental health problems, but
to make patients more compliant. To avoid an interpretation that it deemed
unconstitutional, the superior court held the statute was never meant to apply and does
not apply to the administration of antipsychotics. The Director contends the statute is not
constitutionally infirm, and claims its text and legislative history support its application to
the administration of antipsychotic drugs.
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
10
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 section 1418.8 is unconstitutional in the following
additional ways, which were rejected by the superior court: (1) the notice required by the
superior court must be given prior to the incapacity determination, with a meaningful
opportunity to oppose that determination separately from or instead of the after-the-fact
judicial review provided by the statute; (2) the capacity decision must be made by a
judicial officer, rather than a doctor; (3) an attending physician must not be allowed to act
as decisionmaker for capacity determinations (and must not be allowed to serve on the
IDT) because he or she is non-neutral; (4) legal counsel or a counsel substitute must be
afforded the resident as a matter of due process; and (5) the statute cannot be read as
allowing the IDT to review capacity and surrogacy decisions, which leaves patients
without recourse except by filing in superior court, which their poor health prevents them
from doing.
Finally, the superior court’s determination that section 1418.8 could not be used
for end of life decisions was subject to four exceptions, each of which petitioners claim is
inconsistent with the statute and the state Constitution, namely (a) decisions
implementing a patient’s wish to end life; (b) decisions carrying out a patient’s
instructions; (c) decisions to decline patient instructions for ineffective care or care
contrary to generally accepted medical standards; and (d) decisions to initiate hospice
care. Petitioners contend those exceptions are too expansive and unconstitutionally
undermine the superior court’s broader conclusion that section 1418.8 may not be used
for end of life decisions. The judgment has been stayed pending this appeal. In addition
to the parties’ briefing, we have received amicus curiae briefs from various organizations
11
supporting the positions of either petitioners or the Department. 3 We shall discuss the
points raised by those briefs as we deem them relevant to our decision.
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 section 1418.8’s constitutionality,
we construe the statute to require such notice rather than prohibit its enforcement, as the
superior court did. We also conclude that the requisite notice may be given immediately
after the incapacity and lack-of-surrogacy determinations are made but must be given
before a recommended medical intervention may be initiated. The notice must be given
both orally and in writing to ensure its effectiveness, and the written notice must be given
not only to the affected nursing home resident but to at least one other competent person
whose interests are aligned with those of the resident.
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
3
Amicus curiae briefs on behalf of petitioners were filed by California Long Term
Care Ombudsman Association (CLTCOA), Disability Rights California (DRC), the
American Civil Liberties Union Foundation Disability Rights Program and American
Civil Liberties Union of Northern California (collectively, ACLU), and AARP, AARP
Foundation, the National Consumer Voice for Quality Long-Term Care, and Justice in
Aging (collectively, AARP). Amicus curiae briefs on behalf of the Department were
filed by the California Medical Association, California Dental Association, and
California Hospital Association (collectively, CMA), and California Association of
Health Facilities (CAHF).
12
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 (§ 1418.8, subd. (j)), which
allows for a neutral judge’s decision, representation by counsel (Prob. Code, § 3205), and
a full evidentiary hearing for those patients aggrieved by the incapacity or lack-of-
surrogacy decisions or who object to the treatment recommendation. Because medical
urgency may not allow for judicial review before a treatment decision must be
undertaken, we conclude, in those exigent circumstances—so long as pretreatment notice
is given—the statute complies with minimal due process demands by giving the patient
an opportunity to be heard during the IDT process itself. The full accoutrements of
judicial process, with a right to counsel, are not constitutionally mandated.
B. Mandatory Inclusion of Independent Patient Representative on IDT
Patients subject to section 1418.8 presumably cannot competently speak for
themselves, to anyone, in making their desires and intentions known. The practical
reality, then, is that the Legislature has set up a process the objective of which is to
discern, by the best approximation possible, what those desires and intentions would be if
the patient could communicate effectively. No process designed to achieve that end
could be perfect, but we think the one the Legislature has chosen here—which is based
on a model of collaborative decisionmaking in which a number of different perspectives
are represented—satisfies due process. We believe an essential feature of the IDT
process that saves it from constitutional infirmity in non-emergency circumstances is the
inclusion on the IDT of a patient representative who is independent of the nursing home
staff.
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 resident determined to be decisionally
incapacitated and without a surrogate decisionmaker under section 1418.8,
subdivision (a). We view the role of the patient representative as so crucial to the
13
functioning and constitutionality of the statute that if the patient has no family or friends
willing to serve on the IDT, the nursing home must find another person unaffiliated with
the nursing home to serve as patient representative for each person subject to the IDT
decisionmaking procedure. Only in the case of an urgent medical emergency may an
IDT act without the patient representative’s participation.
C. Administration of Antipsychotic Medication
We reject petitioners’ first as-applied challenge urging that section 1418.8 be
voided to the extent it allows, in non-emergency circumstances, the administration of
antipsychotic drugs to nursing home residents without judicial authorization. We
conclude, here too as a matter of statutory construction, that section 1418.8 may be
employed in making decisions relating to administration of antipsychotic medications,
and that, so construed, the statute does not violate the patient’s privacy or due process
rights.
Section 1418.8, subdivision (h), expressly authorizes “chemical restraints”—
which usually means antipsychotics—to be administered in emergency situations. We
see no reason why prescriptions for use of antipsychotics for an ongoing psychosis could
not also be prescribed through the IDT process in non-emergency circumstances. While
we condemn the use of antipsychotics for purposes of ongoing patient control, which we
are told has been a problem in the past in nursing homes, we believe the Department’s
strict enforcement of the network of federal and state statutes and regulations
constraining the prescription of such drugs in nursing homes is sufficient to prevent
continuing abuse. If the Department is failing to carry out its enforcement obligations in
policing the use of antipsychotic medications by nursing homes, that is a matter which
should be addressed in a case presenting the issue for decision on an appropriate record.
We do not have such a record here.
D. End of Life Decisionmaking
Finally, we reject petitioner’s second as-applied challenge that categorically, under
no circumstances, may section 1418.8 be applied to what the parties call end of life
decisionmaking, a phrase that, on the record presented here, we understand to mean any
14
decision to impose or change a physician order for life sustaining treatment (POLST) or
any decision to provide hospice care to a terminally ill patient. So long as
constitutionally required notice is given, as outlined above, and so long as the IDT
includes an independent patient representative, as further outlined above, we think that
use of the IDT decisionmaking process for these kinds of end of life decisions adequately
safeguards the constitutionally protected right of an incapacitated nursing home resident
to refuse medical treatment. The superior court appears to have recognized as much,
building into the injunction four exceptions designed to cover various aspects of end of
life decisionmaking. Because we conclude there is no constitutional infirmity with the
use of section 1418.8 for the specific kinds of end of life decisionmaking presented on
this record, we have no occasion to address the need for any of these exceptions or
whether it is even appropriate to characterize them as exceptions.
Although we hold that section 1418.8 passes constitutional muster when used for
some specific types of end of life decisionmaking, we emphasize what we do not hold.
Because, in some circumstances, a decision to cease life-sustaining care will require the
intervention of a neutral, judicial decisionmaker under either Conservatorship of
Wendland (2001) 26 Cal. 4th 519 (Wendland) (conscious but incapacitated patients) or
Conservatorship of Drabick (1988) 200 Cal. App. 3d 185 (Drabick) (unconscious
patients)—cases which involve withdrawal of life support—we anticipate that,
somewhere, a line must be drawn between on the one hand cessation of curative care for
a decisionally incapacitated person without a surrogate (for whom the IDT may act), and
on the other hand, withdrawal of life support (for whom resort to the judicial process
would be necessary). But we have no occasion to address that issue here. Drawing the
appropriate line involves a myriad of medical and other circumstances that we cannot
begin to predict based on the limited record before us, so we simply note this outer
boundary to constitutionally proper use of the IDT process, without reaching it in this
case.
15
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 California Constitution, article I,
section 1, protects two classes of privacy interests: ‘(1) interests in precluding the
dissemination or misuse of sensitive and confidential information (“informational
privacy”); and (2) interests in making intimate personal decisions or conducting personal
activities without observation, intrusion, or interference (“autonomy privacy”).’ (Hill v.
National Collegiate Athletic Assn. (1994) 7 Cal. 4th 1, 35[].)” (Ruiz v. Podolsky (2010)
50 Cal. 4th 838, 850-851.) This case deals with autonomy privacy, which has been
recognized as bestowing upon a competent adult the right to refuse medical treatment,
even treatment necessary to sustain life. (Wendland, supra, 26 Cal.4th at p. 530.) The
right of privacy guarantees an individual the freedom to choose to reject, or refuse to
consent to, intrusions of his or her bodily integrity. (Id. at pp. 531-532.) Under
California law a “competent, informed adult has a fundamental right of self-
determination to refuse or demand the withdrawal of medical treatment of any form
irrespective of the personal consequences.” (Thor v. Superior Court (1993) 5 Cal. 4th
725, 732.)
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.) Section 1418.8 provides a
procedure for dealing with such circumstances, authorizing a treating physician to declare
the patient to lack capacity to make his or her own medical decisions, and thereby to
trigger convening of an IDT. (§ 1418.8, subds. (a) & (e).) Petitioners claim leaving the
capacity decision in the hands of an attending physician—or any physician—violates the
16
constitutionally-protected privacy rights of the patient. They contend a judge or judicial
officer must make that decision.
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 section 1418.8 violate residents’ due process rights
under article I, section 7 of the California Constitution.
B. Rains v. Belshé (1995) 32 Cal. App. 4th 157
In 1995, Division Five of this district was faced with a constitutional attack on
section 1418.8 much like the one now before us. Rains, supra, 32 Cal. App. 4th 157 held
section 1418.8 was constitutional against a challenge on state and federal due process
grounds and on privacy grounds under the state Constitution. (Id. at p. 171.) The Rains
court reasoned that a patient’s privacy interests were greatly attenuated by the fact that he
or she needed a medical intervention but lacked capacity to give informed consent. (Id.
at p. 172.) The court also found an overriding state interest in affording nursing homes
the means to provide timely ongoing care for their residents without being constrained by
cumbersome, time-consuming procedures and unwarranted judicial intervention. (Id. at
pp. 176-177.)
Though Rains held section 1418.8 was not unconstitutional under the due process
clause of the state or federal Constitution, it so held on the basis that (1) due process does
not require that capacity and surrogacy decisions be made by judges (Rains, supra, 32
Cal.App.4th at p. 184); (2) objective standards for determining the capacity and
17
surrogacy issues are set forth in the statute 4 (Rains, supra, at pp. 179-180); (3) patient
representatives will bring the resident’s views to the IDT (id. at pp. 182-186); (4) other
state and federal regulations “both limit and supplement the interdisciplinary team
decisionmaking approach by granting certain rights and safeguards to affected residents”
(id. at p. 186); and (5) judicial review is available to nursing home residents under section
1418.8, subdivision (j) (Rains, supra, at pp. 182, 184-185). (See generally id. at pp. 178-
187.)
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 section
1418.8 “by its own terms applies only to the relatively nonintrusive and routine, ongoing
medical intervention, which may be afforded by physicians in nursing homes; it does not
purport to grant blanket authority for more severe medical interventions such as
medically necessary, one-time procedures which would be carried out at a hospital or
other acute care facility, as to which compliance with Probate Code section 3200 et seq.
would still be required, except in emergency situations.” (Rains, supra, 32 Cal. App. 4th
4
When originally enacted in 1992, such standards were not included. (Stats.
1992, ch. 1303, § 1, p. 6327 (Assem. Bill No. 3209).) The trial judge in Rains ruled that
the statute, as enacted, was unconstitutional. (Rains, supra, 32 Cal.App.4th at p. 162.)
Before the appeal was decided, the Legislature amended section 1418.8 to include
objective standards and rules for how the competency and surrogacy decisions were to be
made; it added the provisions now contained in subdivisions (b) and (c) of section
1418.8. (Stats. 1994, ch. 791, § 1, p. 3913 (Assem. Bill No. 1139); Rains, at pp. 162-
163.) The Court of Appeal in Rains reviewed the constitutionality of the amended statute
and found it was constitutional. (Rains, at pp. 162, 165-166.)
18
at p. 186.) Rains appears to have reached this conclusion on the basis of uncodified
language in the preamble to the 1992 bill that established section 1418.8, which indicated
the statute was intended, at least in part, to facilitate “day-to-day medical treatment
decisions . . . on an on-going basis.” (Stats. 1992, ch. 1303, § 1(b), p. 6327; accord
Rains, at p. 179; see parts II.A & II.B, ante.) Beyond that, Rains points to no language in
section 1418.8 indicating it is so limited.
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 section 1418.8. She urges an
interpretation of the statute that allows IDT’s to make all medical decisions for nursing
home residents under their care.
C. The Standard of Review
This case arises on appeal from the issuance of a writ of mandate under Code of
Civil Procedure section 1085. In such a posture, factual issues are reviewed for
substantial evidence, but legal issues, such as statutory or constitutional interpretation, are
reviewed de novo. (Boyer v. County of Ventura (2019) 33 Cal.App.5th 49, 53; see
Lippman v. City of Oakland (2017) 19 Cal.App.5th 750, 756.) Where the facts are not in
dispute, purely legal issues are involved in the determination of the facial
constitutionality of a statute, and we apply a de novo standard of review. (Alviso v.
Sonoma County Sheriff’s Dept. (2010) 186 Cal. App. 4th 198, 204.) On the other hand, an
as-applied challenge “contemplates analysis of the facts of a particular case . . . to
determine the circumstances in which the statute . . . has been applied and to consider
whether in those particular circumstances the application deprived the individual to
whom it was applied of a protected right.” (Tobe v. City of Santa Ana (1995) 9 Cal. 4th
1069, 1084.) When reviewing an as-applied constitutional challenge on appeal, we defer
to the superior court’s findings on historical facts that are supported by substantial
19
evidence and then independently review the constitutionality of the statute under those
facts. (C.M. v. M.C. (2017) 7 Cal.App.5th 1188, 1198; Board of Administration v. Wilson
(1997) 52 Cal. App. 4th 1109, 1127-1130.)
D. Facial Challenge: The Due Process Requirement of Notice and an
Opportunity to be Heard
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 section 1418.8. (Rains, at p. 178.) Because “cases are not authority for
propositions not expressly considered” (In re Marriage of Peters (1997) 52 Cal. App. 4th
1487, 1491), the superior court correctly recognized that this case calls for a decision on
an aspect of due process that Rains left unaddressed.
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 an 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
5
Conservatorship of Moore (1986) 185 Cal. App. 3d 718, 725; Mullane v. Central
Hanover Bank & Trust Co. (1950) 339 U.S. 306, 314 (“notice reasonably calculated,
under all the circumstances, to apprise interested parties . . . and afford them an
opportunity to present their objections”).
20
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 section 1418.8, on its face,
“violates a patient’s due process rights by failing to provide for adequate notice [of four
specific items of information:] [1] the determination of incapacity, [2] the determination
of the absence of a legal substitute decision maker, [3] the prescribed medical
intervention and [4] the right to seek review under section 1418.8(j).” Without adequate
notice in each of these four areas, the court concluded, the patient will have no
meaningful opportunity to oppose decisions made by the IDT. 6
The Director attacks this conclusion as unfounded, claiming that a denial of due
process cannot be asserted under California Constitution, article I, section 7, unless the
right of which the complainant claims to have been deprived is one protected by statute
6
Though the court’s lack of notice ruling is rooted in the modern style of due
process analysis under People v. Ramirez, its conclusion was broadly consistent with
California law going back nearly a century. For decisions that strip a person perceived to
be incapable of decisionmaking capacity of the right to personal autonomy, a due process
requirement of written notice to that person of the deprivation has been recognized for
nearly a century, dating back to Grinbaum v. Superior Court (1923) 192 Cal. 528, 540-
541 [“requirement . . . that notice in some form and of some manner of service must be
given to the individual alleged to be an insane or incompetent person . . . [r]ests upon the
fundamental doctrine, as old as Magna Carta, that no person can be deprived of life,
liberty, or property without due process of law”].)
21
or by the constitution. She further argues due process protections attach only where an
adjudicatory hearing is provided by statute. Besides, the Director suggests, the capacity
decision is medical, not legal, and does not trigger due process protections. She further
contends, because section 1418.8 is implemented directly by nursing homes, no state
action is involved and hence the due process clause is inapplicable. In her view, notice is
not required.
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 Probate Code section 4650, subdivision (a): “In recognition of
the dignity and privacy a person has a right to expect, the law recognizes that an adult has
the fundamental right to control the decisions relating to his or her own health care,
including the decision to have life-sustaining treatment withheld or withdrawn.” Given
this recognized statutory protection for every individual’s health care decisionmaking, we
are satisfied the right petitioners seek to vindicate is one protected by due process.
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 due process claim. Although section
1418.8 may be directly implemented by nursing homes, the Department is responsible for
oversight, inspection and surveying nursing homes to enforce the statute’s
implementation. (Health & Saf. Code, § 1279.) Moreover, not only are petitioners
mounting a challenge to a statutory scheme enacted by the state Legislature, but nursing
homes are, in effect, performing the state’s obligations under the parens patriae doctrine,
which requires the state to care for its most vulnerable residents who cannot care for
22
themselves. 7 (See Qawi, supra, 32 Cal.4th at p. 15.) If, by failure of enforcement—
which is what was alleged and impliedly found here—the Director has placed the state’s
imprimatur on the nursing homes’ challenged conduct, then that is also a sufficient
ground to extend due process protection to nursing home patients.
We think the superior court was right to conclude that, looking at the statute
literally, as written, section 1418.8 fails to meet due process requirements under article I,
section 7, subdivision (a) of the California Constitution. A declaration of incapacity
subjects the nursing home resident to grievous loss and must be accompanied by due
process protections. Petitioners have presented evidence in this case that a declaration of
incapacity not only deprives the nursing home resident of decisionmaking power over his
or her own health care, but may result in loss of control over finances and freedom of
movement. The superior court’s findings amply support its determination that, as
illustrated by Gloria A.’s circumstances, section 1418.8, on its face, is constitutionally
deficient. In fact, in one critical respect—a patient’s right to notice of entitlement to a
patient representative on the IDT—we conclude the superior court’s due process analysis
did not go far enough.
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 section 1418.8 “to the extent that said section does not require”
constitutionally required notice, the superior court recognized that nursing home residents
who have been determined to lack decisional capacity are unlikely to understand or be
able to act on such notice. It considered the privacy rights at stake to be so fundamental
7
The amici favoring the Director disagree with petitioners that the IDT derives its
power from the state acting in parens patriae. They claim an IDT operates as a surrogate
decisionmaker for the resident on the basis of the resident’s consent. To the extent the
Director adopts this view, we disagree. An IDT is not a true surrogate selected by the
patient; the IDT derives its decisionmaking authority only from section 1418.8, and
therefore it must be considered a substitute decisionmaker selected by the state.
23
and the consequences of erroneous deprivation so potentially harmful to the patient, that
state standards of due process require, at a minimum, written notice of the four listed
categories of information.
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 section 1418.8, the Rains court relied upon
the fact that the statute does not stand in isolation, but operates within a complex regime
of overlapping state and federal statutes and regulations establishing the rights of nursing
home residents. (Rains, supra, 32 Cal.App.4th at pp. 186-187.) This background
regime—triggered at the time of admission to a nursing home 8—entitles residents (1) to
be “fully informed” about their “total health status”; 9 (2) to “consent to or refuse any
treatment or procedure”; 10 (3) to receive “all information that is material” to the decision
8
California Code of Regulations, title 22, section 72527, subdivision (a)(1); title
42 United States Code section 1395i-3(c)(1)(B)(i); 42 Code of Federal Regulations part
483.10(b)(1) and (2).
9
42 Code of Federal Regulations part 483.10(c)(1).
10
California Code of Regulations, title 22, section 72527, subdivision (a)(4).
24
whether to accept or refuse any treatment or procedure; 11 (4) to participate in their overall
“plan of care, including the identification of medical, nursing and psychosocial needs and
the planning of related services”; 12 (5) to be “immediately inform[ed]” when there is a
significant change in their “physical, mental, or psychosocial status,” or a “need to alter
treatment significantly”; 13 and (6) to be informed that they “have the right to voice
grievances to facility personnel free from reprisal and can submit complaints to the State
Department of Health Services or its representative.” 14
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 section 1418.8 violates due process standards.” (Id.
at pp. 186-187.) We draw a different conclusion, on a different rationale. In our view,
the Legislature built section 1418.8 on a preexisting foundation of patient protections that
it expected would be necessary for the implementation of the statute. Rather than
“undermine” petitioners’ due process claim, we think this legal backdrop confirms that
the Legislature understood and intended there were certain bedrock procedural minima
on which it was establishing a new scheme. The gravity of the interests at stake outside
the context of “routine, day-to-day” medical decisionmaking convinces us that—at least
11
California Code of Regulations, title 22, section 72527, subdivision (a)(5).
12
California Code of Regulations, title 22, section 72527, subdivision (a)(3);
accord title 42 United States Code section 1395i-3(c)(1)(A)(i).
13
42 Code of Federal Regulations part 483.10(g)(14)(B) and (C).
14
Health and Safety Code section 1599.2, subdivision (c); accord title 42 United
States Code section 1395i-3(c)(1)(A)(vi).
25
with respect to notice and an opportunity to be heard—this assumed procedural
foundation is not just statutory and regulatory, but constitutional.
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 decision, any recommendation for
treatment by the IDT, and the right to judicial review. Without mandated notice of these
matters to patients, in our view, the respect for personal autonomy that it is the central
objective of section 1418.8 to protect is essentially meaningless. As the superior court
explained, “[t]o the extent . . . patients [covered by section 1418.8] are competent enough
to want to challenge . . . determinations” made for and about them, “notice and
opportunity may allow them to keep their decision-making capacity, or designate
someone of their own choosing, instead of placing such decisions in the hands of a team
of strangers.” At stake, fundamentally, is the right of individual dignity. “If, in fact, the
patient lacks capacity,” the superior court pointed out, “then the patient will likely be
unable to understand the nature of these determinations or to seek review,” but at least
“will have been afforded his or her due process rights.” We take the same view, but
rather than bar enforcement of section 1418.8 because it makes no express provision for
26
notice and an opportunity to be heard, we imply these requisites as a matter of statutory
interpretation and constitutional imperative.
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 ombudsman 15 for a simpler or fuller explanation of what the
writing seeks to convey.
But requiring notice to affected residents, by itself, is not sufficient. This is a
population that, by definition, will include many people who lack the ability to
15
The California Long-Term Care Ombudsman is an organization created in
response to federal legislation. (42 U.S.C. § 3058g.) Its role is to monitor nursing
homes, to take, investigate, and resolve complaints from nursing home residents, and to
report to the Department its findings and recommendations. (See Welf. & Inst. Code, §
9712.5, subd. (b) [State Ombudsman is authorized to “[p]rovide services to assist
residents in the protection of their health, safety, welfare, and rights”].) CLTCOA is an
association of local long-term care ombudsman programs in California. As such, its
members are charged with monitoring nursing homes throughout California for
compliance with patient rights. (Welf. & Inst. Code, § 9712.5, subd. (a); 42 U.S.C.
§ 3058g(a)(3)(A).) CLTCOA therefore purports to reflect the views of those who
regularly frequent nursing homes in California and observe their operation, offering us
“boots on the ground” insight into the IDT process as it is used in nursing homes
throughout California.
27
comprehend complex written expression. 16 Notice to an incompetent person alone does
not comport with due process. In Covey v. Town of Somers (1956) 351 U.S. 141, where
notice of a judicial foreclosure for delinquency in paying real property taxes was sent to a
property owner, who the authorities knew was mentally incompetent and unable to
understand the meaning of any such communication, the Supreme Court held, “Notice to
a person known to be an incompetent who is without the protection of a guardian does
not measure up to this requirement [of due process].” (Id. at p. 146.) Applying the
holding in Covey under article I, section 7 of our Constitution, we think due process
requires that steps be taken to notify an incompetent person in a way that provides the
person access to assistance in comprehending what he or she is being told.
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 section 1418.8, subdivisions (e) and (f) could, for instance, receive such
notice on the patient’s behalf. Anyone empowered by the Probate Code to pursue
judicial relief for the resident, even if they are not available to serve as a surrogate
decisionmaker, might suffice. (See also Prob. Code, § 3203 [listing persons entitled to
pursue judicial remedy under Prob. Code, § 3201 on patient’s behalf].)
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
16
See Dinerstein, Implementing Legal Capacity Under Article 12 of the UN
Convention on the Rights of Persons with Disabilities: The Difficult Road from
Guardianship to Supported Decision-Making (2012) 19 Hum. Rts. Brief 8, 10-11
(“persons with disabilities may need assistance in decision making through such means as
interpreter assistance, facilitated communication, assistive technologies, and plain
language”).
28
section 1418.8 is that they be notified of their entitlement to have a patient representative
serve on the IDT. On this point, we think more is required than the holding in Rains
demands. As noted, section 1418.8, subdivision (e), provides for the participation of a
patient representative on the IDT “where practicable.” The Legislature defined “patient
representative” broadly: “A patient representative may include a family member or
friend of the resident who is unable to take full responsibility for the health care decisions
of the resident, but who has agreed to serve on the interdisciplinary team, or other person
authorized by state or federal law.” (§ 1418.8, subd. (f).) According to Rains, patient
representatives may include “patient advocates, legal counsel, and all other persons
having an interest in the welfare of the patient,” as well as the public guardian or a local
ombudsman. (Rains, supra, 32 Cal.App.4th at p. 182.) 17
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 section 1418.8, subdivision (e) requires a patient representative” as a
member of the IDT in rejecting the due process challenge to section 1418.8. (Rains,
supra, 32 Cal.App.4th at p. 166, italics added.) In fact, to render the statute
constitutional, we hold that a patient representative independent of the nursing home
17
The record evidence in this case is mixed as to how local ombudsmen, to date,
have viewed their role. Two local ombudsmen filed declarations indicating, as
ombudsmen, they were not allowed to vote on an IDT or act as a patient representative,
although they sometimes sat in on IDT’s as non-voting participants. The Director and
CMA claim there is no legal impediment to their serving as patient representatives, and
the declaration of one local ombudsman states that she acted as the resident’s “advocate”
on one IDT. CAHF reports: “Long-Term Care Ombudsmen, who are required to
investigate and resolve reports of abuse in these facilities, are not legally authorized to
assume the role of health care decisionmakers.” (Enrolled Bill Report, Department of
Aging (June 28, 1996), at p. 1.)
29
must be identified for participation on every IDT and must participate on the IDT, except
in emergencies.
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 § 1418.8, subd. (e).) Although the patient
representative’s consent is required as part of the IDT, his or her vote on the team is but
part of the required consensus; holding that the patient representative alone could control
decisionmaking would be tantamount to making the representative the surrogate
decisionmaker for the resident, though he or she has not qualified for or is unwilling to
assume that status and may not have been chosen by the resident. A patient
representative is defined, in part, as a family member or friend who is “unable to take full
responsibility” for making the resident’s health care decisions (§ 1418.8, subd. (f)) and
therefore does not perform the role of a surrogate.
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. (§ 1418.8, subd. (a).) Where a
patient, although incompetent to make medical decisions, nonetheless is able to articulate
coherent ideas about his or her current circumstances, it is the task of the patient
representative to bring that information into the IDT’s decisionmaking process. Viewed
18
Petitioners argued in the superior court that this role was not being adhered to as
the statute was applied in nursing homes, but the court held their evidence was
insufficient to show that patient representatives were routinely omitted from participation
on IDT’s.
30
in that light, the role of the patient representative on the IDT is to take responsibility for
understanding and articulating the best approximation possible of the patient’s
perspective. In effect, as we read the statute, the Legislature has provided for virtual
representation through the IDT as a body, not actual representation through the patient
representative.
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 patient representative’s role on the IDT is essential. Despite the crucial function
performed by the patient representative, the statutory language “where practicable”
(§ 1418.8, subd. (e))—if given a broad reading—would severely undervalue the right to
have such a person involved in the IDT’s decisionmaking process. We consider it
necessary to have a patient representative participate on every IDT as an element of due
process. “Where practicable” does not mean “where convenient” or “where someone
happens to step forward.” The statute imposes upon the nursing home an affirmative
duty to investigate who might serve as patient representative, and if no family or friend is
available, the nursing home must designate some person not employed by the nursing
home—and thus independent of nursing home staff—to act as patient representative. 19
19
To reinforce the independence of anyone who serves as a patient representative,
and perhaps to facilitate the formation of a professional community willing to carry out
31
As Rains held, the phrase “where practicable” allows the IDT to proceed without a
patient representative only in “exigent circumstances” when the urgency of the patient’s
medical needs will not allow for the patient representative’s participation. (Rains, supra,
32 Cal.App.4th at pp. 166-167.) Nursing homes may not use the “where practicable”
language as an escape valve to avoid participation by a patient representative. A patient
representative should be designated for each resident determined to be decisionally
incapacitated as soon as that determination is made. Where no appropriate friend or
family member is identified, the nursing home must enlist the local ombudsman, public
guardian, or equivalent county officers to serve. (See Prob. Code, § 3203.)
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.” (§ 1418.8, subd. (e).) Because the
resident has a statutory right to the participation of a patient representative in the IDT
process, the notice that we require in parts IV.D.2. and IV.D.3., ante, must include notice
of that right. Only through vigorous enforcement of the right to have a patient
representative serve on the IDT may the resident’s due process rights under our state
Constitution be protected and effectuated.
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
this crucial function, the Legislature might wish to consider enacting supporting
incentives and protections for people who are designated to serve in that role. Among the
things that might be considered, for example, are (1) a scheme of funding to compensate
them and to support training and education in the skills required to carry out their
professional role, and (2) statutory immunity from civil liability.
32
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].)
Petitioners’ argument is that without prior notice, the right to oppose these
decisions in court afterward is ineffective, in part because it would reverse the burden of
proof. (Cf. Doe v. Gallinot (9th Cir. 1981) 657 F.2d 1017, 1022.) They also posit the
patients’ feeble health and limited intellectual capacity are obstacles to filing a petition in
court challenging the attending physician’s incapacity determination. Petitioners also
contend that notice must be accompanied by an opportunity to oppose the incapacity
decision before it is made. They insist such a hearing must provide residents with the
usual accompaniments to an adversarial hearing, including the resident’s right to counsel
or a counsel substitute.
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. 181-182.) The very point of enacting section 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
33
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, presumably on a relatively short timetable. (§ 1418.8,
subd. (a).) There is no requirement for a standalone capacity determination. 20 When the
capacity determination is made contemporaneously with a treatment recommendation, the
patient’s needs generally will not allow for an adjudicative hearing in every case. Nor
must we presume that every recommended procedure or every incapacity finding will be
opposed by the resident.
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 section 1418.8
because they may believe they would be unable to tend to the patient’s medical needs
20
Despite the wording of the statute, the evidence submitted by petitioners
included declarations by ombudsmen suggesting that capacity determinations are
routinely made upon the patient’s first entry into the nursing home, regardless of whether
there is any immediate need for informed consent, and the CMA agrees.
34
timely and responsibly. Hence, the Director and her amici predict, if we were to agree
with petitioners’ arguments, this most vulnerable population would run the risk of being
confined to acute care facilities or hospitals or left without a viable means of securing
medical care.
Petitioners clarify that a full-blown judicial proceeding such as that involved in
Probate Code section 3201 is unnecessary, but rather the Constitution would be satisfied
by an administrative board or a hearing procedure presided over expeditiously, such as
the administrative hearings put into operation by the Legislature following the decision in
Riese v. St. Mary’s Hospital & Medical Center (1987) 209 Cal. App. 3d 1303, 1318. (See
Welf. & Inst. Code, § 5332.) Such a hearing, they suggest, could be conducted by “a
court-appointed commissioner or referee, or a court-appointed hearing officer” (Welf. &
Inst. Code, § 5334, subd. (c)), and therefore need not be made by a judge. This added
protection, in our view, would dispense with the IDT structure altogether. Petitioners
want to throw out the baby with the bath. Nothing so drastic is required. Pitted against
the argument that time is of the essence in medical decisions, the preference for prior
notice and an opportunity to resist the determination before it is made must give way to
efficacy of the proposed intervention.
b. Timing of Recommended Medical Interventions
As we view the statute, there is an opportunity to be heard in court upon a petition
under Probate Code section 3201 if the collaborative model of decisionmaking results in
deadlock (i.e., if anyone on the IDT disagrees with the incapacity or lack of surrogacy
determinations or the proposed treatment). Petitioners point out that, for incapacitated
persons, providing for a remedy in superior court is unrealistic and impractical due to
their physical and mental health challenges. Because individuals other than the patient
may initiate such proceedings (Prob. Code, § 3203), and because the procedure employed
on judicial review would include appointment of counsel for the resident (Prob. Code, §
3205), we see no lack of due process in the procedure provided, so long as the
35
implementation of the proposed treatment is delayed until after any judicial challenge has
been decided (with the exception of cases of emergency).
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.
Section 1418.8, subdivision (e) provides that the IDT must “review . . . the
prescribed medical intervention” before it is implemented. There is no language in
section 1418.8 either specifically authorizing or specifically prohibiting the IDT from
reviewing capacity determinations, but the Director presented evidence in the superior
court that IDT’s can and do review capacity and surrogacy determinations, as well as
medical treatments. This, she claims, is part of reviewing the patient’s overall
“condition” as prescribed in section 1418.8, subdivision (e)(1). Adopting that
construction of the statute, we find the IDT process serves as a more expeditious, and
constitutionally sound, alternative to judicial review, so long as a patient representative is
included on the IDT.
E. Facial Challenge on Cross-Appeal: Who Decides Capacity, Judge or
Doctor?
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
36
a legal one, not a medical one. (Qawi, supra, 32 Cal.4th at p. 17.) Because section
1418.8 places that decision in a physician’s hands, petitioners contend it violates the
resident’s privacy rights under article I, section 1 of the California Constitution. Even
worse, they point out, the decision under section 1418.8, subdivision (a) rests with the
attending physician, whom they consider a non-neutral party, 21 who also participates on
the IDT (§ 1418.8, subd. (e)), which they contend deprives the patient of a neutral
decisionmaker in violation of due process.
Petitioners suggest, because section 1418.8 lacks a judicial determination of
incapacity as part of its procedure, the statute violates California’s privacy guarantee.
(Cal. Const., art. I, § 1.) They contend the superior court’s declaration of
unconstitutionality of section 1418.8 did not go far enough because it did not declare a
determination of incapacity by a treating physician was unconstitutional. In response, the
Director claims the entire procedure described in section 1418.8 calls for the making of
medical decisions, not legal decisions. She finds some support in Washington v. Harper,
where the Supreme Court took no issue with the lack of a judicial hearing as to the need
for antipsychotic medication because it considered such matters best assessed by medical
professionals. (Washington v. Harper, supra, 494 U.S. at pp. 231-233.) Rains, too,
adopted this reasoning. (Rains, supra, 32 Cal.App.4th at pp. 184-185.)
In its June 2015 order, the superior court noted that section 1418.8 does not
“provide the same procedural safeguards found in Washington [v. Harper] requiring an
independent decisionmaker. Instead, section 1418.8[, subdivision] (e) requires the same
attending physician [who] determined the patient to be incompetent to be a part of the
IDT that reviews that physician’s prescribed medical intervention prior to administration
of the medical intervention.” Nevertheless, the superior court did not hold our
21
Petitioners portray attending physicians as being almost adversarial to the
residents. They insist upon their right to a “neutral” decisionmaker, casting attending
physicians as anything but that. We, like Rains, fail to share petitioners’ cynicism. We
cannot “presume the bias if not dishonesty of physicians opining as to the patient’s
capacity.” (Rains, supra, 32 Cal.App.4th at pp. 181-182.)
37
Constitution demands that nursing home residents be provided with an independent
decisionmaker. It found the issue was decided by Rains.
We must determine whether the statute, on its face, violates the rights of nursing
home residents. To assert a privacy violation, Hill, supra, 7 Cal. 4th 1 requires three
elements: “(1) a legally protected privacy interest; (2) a reasonable expectation of
privacy in the circumstances; and (3) conduct by defendant constituting a serious
invasion of privacy.” (Id. at pp. 39-40.) The Director contends there is no violation of
the patient’s privacy rights because the IDT procedure does not constitute an “egregious
breach of . . . social norms.” (Id. at p. 37.) Rains agreed with that analysis (Rains, supra,
32 Cal.App.4th at pp. 174-177), but petitioners contend the Supreme Court’s subsequent
decision in Qawi, supra, 32 Cal. 4th 1, which addressed whether mentally disordered
offenders (MDOs) could be compelled against their will to be treated with antipsychotic
medication, casts into doubt the central holding of Rains.
The Mentally Disordered Offender Act requires that offenders who have been
convicted of violent crimes related to their mental disorders, and who continue to pose a
danger to society, receive mental health treatment during and after termination of their
parole until their mental disorder can be kept in remission. (Pen. Code, § 2960 et seq.)
Qawi addressed whether the petitioner, an MDO who had finished his period of parole,
could refuse antipsychotic medication for his mental disorder despite the statute
authorizing continued medication. (Qawi, supra, 32 Cal.4th at pp. 9, 11.) In the MDO
Act, the Legislature specifically provided that MDOs who have completed their term of
parole retain the same rights granted to mentally ill patients that have been involuntarily
civilly committed under the Lanterman-Petris-Short Act (LPS Act), found in Welfare and
Institutions Code section 5000 et seq. (See Pen. Code, § 2972, subd. (g).)
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
38
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 explained medically. The legal
conclusion is therefore based at least in part on medical evidence, subject to a
standardized definition of incapacity in section 1418.8, subdivision (b), which supplies
some safeguard against arbitrariness and caprice. 22 The determination of decisional
capacity is, to be sure, increasingly recognized as a complicated undertaking, especially
in patients with dementia. Petitioners’ evidence, as well as briefing supplied by
petitioners’ amici, further shows that determination of incapacity is far from an exact
science, that mistakes are made, and that capacity may vary from one context to another
and from one time to another, often fluctuating with the specific circumstances a resident
is in and the availability of someone who knows how to communicate effectively with
him or her. Declarations by ombudsmen and others familiar with nursing home practices
22
Physicians whose decisions on capacity were included in one study of 29
patients with mild Alzheimer’s disease showed only 54 percent agreement among the
doctors as to the capacity of the subjects to make their own medical decisions. (Marson
et al., Consistency of Physician Judgments of Capacity to Consent in Mild Alzheimer’s
Disease, Journal of the American Geriatric Society (April 1997) Vol. 45, pp. 453-457;
see also Moye, et al., Neuropsychological Predictors of Decision-Making Capacity over
9 Months in Mild-to-Moderate Dementia, J Gen. Intern. Med. (Jan. 2006) 21(1), pp. 78-
83.) When a standardized definition of capacity was introduced, a comparable study
showed doctors agreed 76 percent of the time. (Marson et al., Consistency of Physicians’
Legal Standard and Personal Judgments of Competency in Patients with Alzheimer’s
Disease, Journal of the American Geriatric Society (August 2000) Vol. 48, pp. 911-918.)
39
recount instances of erroneous or questionable determinations of incapacity, as in Gloria
A.’s case.
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 Welfare and
Institutions Code section 5300.” (Qawi, at pp. 9-10.) What they overlook is that our
Supreme Court’s decision in Qawi was based on statutory construction, not constitutional
analysis. (Id. at pp. 13-14, 24-25.)
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. (§ 1418.8, subds. (b) & (c).) But the
most fundamental distinction is that, by its establishment of an IDT and provision for the
participation of a patient representative, section 1418.8 allows for an informal and
expeditious method—based on a collaborative model of decisionmaking—to resolve any
objections that might be expressed on the patient’s behalf. 23 We conclude that so long as
23
Section 1418.8 is not unique in providing for an alternative to the adversarial
process as a decisionmaking model. For instance, the federal Individuals with
Disabilities Education Act (IDEA) (20 U.S.C. § 1400 et seq.) employs a collaborative
decisionmaking process for disabled students to achieve a free appropriate public
education (FAPE). (See 20 U.S.C. §§ 1412(a)(4), 1414(d)(1)(B).) “The premise of the
IDEA is that parents and schools working together to design an IEP [individualized
education program] is the ideal way to reach the statute’s goal of a FAPE for every child.
See Ridley [School Dist. v. M.R. (3d Cir. 2012)] 680 F.3d [260,] 269; see also Schaffer v.
Weast, 546 U.S. 49, 53 (2005). Congress anticipated, however, that ‘the collaborative
40
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. (Cal. Code Regs., tit. 22, § 72527, subd. (c) [“The patient's
incapacity shall be determined by a court in accordance with state law or by the patient's
physician unless the physician’s determination is disputed by the patient or patient’s
representative.”].)
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
(§ 1418.8, subd. (e)) and the availability of judicial review (id., subd. (j)), Rains held the
minimum standards of due process are met and there is no unconstitutional incursion into
residents’ privacy rights. (Rains, supra, 32 Cal.App.4th at pp. 177, 182, 184, 187.) We
agree with Rains in that respect.
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
process’ may at times break down. [Citation.] Hence, the Act allows either party to
respond to a stalemate in the discussions by requesting an impartial due process hearing
before a state or local administrative officer. See 20 U.S.C. § 1415(f).” (M.R. v. Ridley
School Dist. (3d Cir. 2014) 744 F.3d 112, 117.)
41
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
24
At the time section 1418.8 was enacted, it was expected to affect some 10,000
nursing home residents in California. (Assem. Com. on Human Services, Analysis of
Assem. Bill No. 3209, May 5, 1992 (Reg. Sess. 1991-1992), pp. 2-3.) More recent
legislative estimates suggest some 3,000 to 12,000 nursing home residents are subject to
IDT decisionmaking under the statute. (Assem. Jud. Com. Analysis of Sen. Bill No. 481,
July 11, 2017 (Reg. Sess. 2017-2018), p. 6.) CAHF estimates that some 6,000 to 12,000
current residents of nursing homes in California are subject to decisionmaking under
section 1418.8.
42
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.
2. Petitioners’ Argument to Exclude the Attending Physician as
Decisionmaker on Capacity
If the decision is to be made by someone other than a judicial officer, 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
43
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 (§ 1418.8, subds. (a) & (e).) We do not agree that this role by the
attending physician renders section 1418.8 unconstitutional. “Due process is flexible and
calls for such procedural protections as the particular situation demands.” (Morrissey v.
Brewer (1972) 408 U.S. 471, 481; accord People v. Ramirez, supra, 25 Cal.3d at p. 268.)
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. They do not occupy the same role
as the jailers who wanted to medicate a prisoner in Washington v. Harper, the welfare
authorities who were terminating public benefits in Goldberg v. Kelly (1970) 397 U.S.
254, 271, or the parole officials who wanted to return a parole violator to prison in
Morrissey v. Brewer, supra, 408 U.S. at pp. 485-486. In those cases, there was by
definition a preexisting relationship to some degree adversarial, whereas in the attending
physician-patient context there should exist a relationship of trust or at least neutrality.
Petitioners have not shown otherwise. (See Washington v. Harper, supra, 494 U.S. at
pp. 233-234 [Vitek v. Jones (1980) 445 U.S. 480 and Parham v. J.R., supra, 442 U.S. 584
identified as “previous cases involving medical decisions implicating similar liberty
interests [in which] we have approved use of similar internal decisionmakers”].)
25
Although the statute nominally requires the attending physician to serve on the
IDT, amicus curiae CLTCOA tells us that, in practice, typically no physician actively
participates on the IDT.
44
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 (§ 1418.8, subd. (c)), treating physicians may be entrusted with
making a determination following such an investigation. Our state Constitution offers no
impediment on this ground, and the IDT process offers a meaningful review, followed by
judicial review if the patient or his or her representative continues to resist a finding of no
surrogate.
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 the particular features of one institution’s
policy described in Washington v. Harper into absolute minimum requirements for a
panel of nonjudicial decisionmakers to pass constitutional muster in making medical
decisions. Though the prison policy in Washington v. Harper was held to comply with
federal due process, the Supreme Court in that case made no pretense of setting forth
minimum standards for precise emulation by other institutions. (494 U.S. at pp. 228-
236.) We must examine only whether the procedures established by our state Legislature
45
for medical treatment of nursing home residents comport with minimum due process
standards of the state Constitution. (Cal. Const., art. I, § 7.)
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 (§ 1418.8, subd. (g))
and the fact that capacity fluctuates, the IDT presumably will revisit the incapacity
determination at the time of its quarterly reviews. The Director presented evidence that
the statute has been construed to allow the IDT that power, and we adopt that
interpretation as consistent with, though not compelled by, the statutory language. We
find no due process violation in the Legislature’s choice to provide nursing home
residents with an informal, collaborative decisionmaking process for determining
medication needs.
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 (Prob. Code, § 3203) were to challenge the
incapacity determination through a petition under Probate Code section 3201, counsel
would be appointed at that stage. (Prob. Code, § 3205.)
46
Given our holdings that the IDT process does not itself offend the Constitution and
that IDT’s may reconsider the attending physician’s determination of incapacity, we
reject the notion that legal counsel must be appointed to help deal with that issue,
whenever it arises. The Legislature sought to eliminate from the process the time-
consuming and adversarial nature that the participation of attorneys tends to entail.
Instead, it provided that residents would have a patient representative serve on an IDT.
(§ 1418.8, subds. (e), (f).) The inclusion of a patient representative in a collaborative
decisionmaking process, as we have explained, is enough to satisfy due process in this
context. (See, e.g., Washington v. Harper, supra, 494 U.S. at p. 236 [“lay adviser”
familiar with medical issues was adequate for purposes of subjecting prison inmate to
forced medication].)
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;
47
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. (Health & Saf. Code, § 1418.9, subds. (a), (b) &
(d).) That provision is evidently intended for patients not subject to IDT decisionmaking
under section 1418.8. The population subject to IDT decisionmaking often would have
no “interested family member” and so no notice would go out on their behalf. Once
again, a third party should also receive notice on behalf of the resident.
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
48
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 freely by the resident. (In re Conroy, supra, 486 A.2d at
p 1237.) As the medical director, the attending physician has a financial interest in
medicating patients with antipsychotics: by medicating them into a more complacent
state, whether in their best medical interests or not, the nursing home can manage the
facility’s population with fewer employees, thus increasing the facility’s profit.
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)
[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.
(, 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 data 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) [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.
3. The Regulatory Environment
Through the Nursing Home Reform Act, which applies to almost all California
50
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.” (42
U.S.C. § 1395i-3(c)(1)(D).)
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.” (42 U.S.C. § 1395i-3(c)(1)(A)(ii).) Such
restraints may only be imposed “to ensure the physical safety of the resident or other
residents,” and “only upon the written order of a physician that specifies the duration and
circumstances under which the restraints are to be used,” except in emergencies. (Ibid.)
“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 treatment. [¶] (4) The nature, degree, duration and probability of the side
effects and significant risks, commonly known by the health professions. [¶] (5) The
27
That Act applies to nursing homes that have provider agreements under the
Medicaid or Medicare programs. (See Cal. Advocates for Nursing Home Reform, Inc. v.
Chapman (N.D. Cal. June 3, 2013, No. 12-CV-06408-JST) 2013 U.S. Dist. Lexis 77807,
at pp. *2-3; 42 U.S.C. §§ 1395i-3(g)(1)(A), 1396r(g)(1)(A) [requiring state certification
of compliance by facilities].) The Director informs us that only a small fraction of the
state’s nursing homes are not certified for participation in these programs, in some cases
because they are in process of obtaining certification.
51
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.” (Cal. Code Regs., tit. 22, § 72528, subd. (b); see
also id., § 72527, subd. (a)(5).)
Under federal regulations, facilities must ensure that antipsychotic drug therapy is
not given to residents who have not previously used psychotropic drugs “unless the
medication is necessary to treat a specific condition as diagnosed and documented in the
clinical record,” and they must give residents “gradual dose reductions, and behavioral
interventions, unless clinically contraindicated, in an effort to discontinue these drugs.”
(42 C.F.R. § 483.45(c)(3), (e)(1) & (e)(2).) Each resident’s drug regimen must be
reviewed on a monthly basis by a pharmacist, who must report “irregularities,” and
facilities must act on such reports. (42 C.F.R. § 483.45(c)(1) & (c)(4).)
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
52
an emergency, without a prior IDT determination to administer such restraints.
(§ 1418.8, subd. (h); Rains, supra, 32 Cal.App.4th at p. 186.) If such “chemical
restraints” are used, an IDT must be convened within one week thereafter to evaluate that
use. (§ 1418.8, subd. (h).) Petitioners argue that the IDT process cannot be used to
prescribe antipsychotics due to the statute’s lack of procedural safeguards required as a
matter of due process. They rely on a handful of cases concerned with forcible
administration of antipsychotics in settings distinct from that of the nursing homes with
which we deal.
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), but because nursing home
patients have the protection of other laws sufficient to protect their privacy interests. And
because of the urgency of medical decisions in nursing homes, and the size and staffing
of the facilities, the same procedures need not be employed as are used in prisons or
mental hospitals in order to comply with due process.
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
53
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.) Penal Code
section 2600 provides that a prisoner may be deprived only of such rights as necessary to
provide for the reasonable security of the institution in which the prisoner is confined and
for the reasonable protection of the public. The Keyhea court found that, by statute, state
prisoners retained the same rights accorded to nonprisoners in this area, and further found
that under the LPS statutory scheme, nonprisoners in California have a statutory right to
refuse long-term treatment with antipsychotic drugs absent a judicial determination that
they are incompetent to refuse treatment. (Id. at pp. 534-537.) Keyhea held state
prisoners, like nonprisoners committed under the LPS Act, are entitled to a judicial
determination of their competency to refuse treatment unless deprivation of this right is
necessary to prison security. (178 Cal.App.3d at pp. 541-542.) The Court of Appeal held
the trial court had properly ruled that prisoners were entitled to notice, judicial hearing,
judicial determination, personal appearance, and assistance of counsel, as afforded to LPS
committees. (Id. at p. 542, fn. 14.) The appellate court’s ruling was based on statutory
construction, however, not constitutional compulsion. (Id. at p. 541.)
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.
54
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
55
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 issues, we think, not only
require us to expand upon Rains, but to reexamine some aspects of the approach to
statutory interpretation the Rains court took. (Lucent Technologies, Inc. v. Board of
Equalization (2015) 241 Cal. App. 4th 19, 35 (Lucent) [recognizing “latitude [each Court
of Appeal panel has] to disregard the decisions of . . . sister Courts of Appeal (and even
our own prior decisions) [citation] . . . when there is ‘good reason’ to do so”].) Rains did
not address the issue of whether administration of antipsychotic drugs is permitted under
section 1418.8, but it did opine that section 1418.8 applied only to nonintrusive, routine
medical procedures. (Rains, supra, 32 Cal.App.4th at p. 186.) Petitioners suggest that
the severe side effects of antipsychotics renders them non-routine and extremely
intrusive, therefore meriting special protection for nursing home residents. We find no
language in the statute to support the interpretation that it applies only to routine medical
interventions.
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
56
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.
The superior court held, “Patients in skilled nursing facilities and intermediate care
facilities are entitled to no [fewer] rights than mentally ill patients and prisoners, and
therefore are either entitled to procedural safeguards consisting of either a judicial finding
of incompetency as in Qawi and Keyhea, or some type of independent review process of
the attending physician’s recommendation to administer antipsychotic drugs along with
notice and opportunity to be heard as in Washington [v. Harper].” Because section
57
1418.8 does not provide such procedural safeguards, the court found the Department’s
application of section 1418.8 permitting patients to be treated with antipsychotic drugs
under this statutory procedure would violate these patients’ due process rights. In order
to avoid this unconstitutional result, the superior court construed section 1418.8 as simply
not applying to administration of antipsychotic medications: “Since section 1418.8 was
not intended to permit administration of antipsychotic drugs, compliance with the
procedures set forth in Probate Code section 3200 et seq. would still be required, except
in emergency situations.” We cannot accept this construction of the statute, as further
explained below.
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. 186-187.) For incapacitated nursing home residents section
1418.8 provides an approximation of informed consent, while for prisoners and MDOs
informed consent is disregarded altogether. A higher level of due process scrutiny is self-
evidently necessary in that setting. We must examine section 1418.8 as it comes to us,
bearing in mind that “ ‘due process is flexible and calls for such procedural protections as
the particular situation demands.’ ” (People 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
58
about their wishes in the circumstances. Their privacy and self-determination interests,
while remaining precious, are somewhat diminished by their very physical and mental
condition. The nursing home has a strong and often urgent interest in getting these
patients their medications, including antipsychotic medications if necessary to treat a
medical condition (and not used for patient control). As described above, the statutory
and regulatory framework now in place sets clear limitations on the use of
psychotherapeutic drugs. If the Director implements the law as written, the kind of abuse
that has been described to us should not occur.
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
59
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
Petitioners contend section 1418.8 must not be used to end the lives of nursing
home residents, and to the extent it has been so used, it violates due process and the
California constitutional privacy guarantee. (Cal. Const., art. I, §§ 1, 7.) In 1993, a
memo describing the implementation of the relatively new section 1418.8 was written by
the Department of Health Services’ 29 Licensing and Certification branch and sent to
District Administrators throughout the state. The memo included a “Question and
Answer” sheet which posed, as one potential question, whether section 1418.8 could be
used to withdraw or withhold life-sustaining treatment. It then answered the question:
“No. H & S Code, Section 1418.8, authorizes the IDT to make decisions regarding
medical interventions. Since withdrawing or withholding life sustaining treatments are
not medical interventions, this statute does not authorize the IDT to make these decisions
on behalf of residents.” (Italics added.) But the Director now takes the position, as she
did in the superior court, that while section 1418.8 is not designed for decisions to
withdraw or withhold life-sustaining treatments, it may be used for some end of life
decisions, such as the use of DNR orders directing that medically intrusive and painful
resuscitative life-saving procedures not be used, or that terminally ill patients be sent to
28
“POLST” means a “request regarding resuscitative measures that directs a
health care provider regarding resuscitative and life-sustaining measures.” (Prob. Code,
§ 4780, subd. (a)(3); see id., § 4788, subd. (a)(3).) A patient or the patient’s legal
surrogate and a physician, nurse practitioner, or physician’s assistant must sign the
POLST in order for it to be enforceable. (Prob. Code, § 4780, subd. (c).) A “do not
resuscitate” (DNR) order is “a written document, signed by . . . a legally recognized
health care decisionmaker, and . . . the individual’s physician, that directs a health care
provider regarding resuscitative measures.” (§ 4780, subd. (a)(1); see id., subd. (e)).
29
The Department of Health Services was the predecessor to the Department.
60
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 decision, and because the court improperly
attributed actions by nursing homes to state action by the Department. If we reach the
merits, the Director urges us to preserve an exception for referral to hospice care, which
she argues is not an “end of life decision.”
2. Justiciability
We reject the contention that any review of the superior court’s ruling on the use
of section 1418.8 for end of life decisionmaking is nonjusticiable on any of the grounds
the Director advances. The superior court made specific factual findings about the
practices of IDT’s in making end of life decisions, and in doing so ruled on a concrete,
live controversy that placed in doubt the constitutionality of section 1418.8 and its
ongoing applicability—or inapplicability, as the case may be—to thousands of nursing
30
The declaration of Dr. Steinberg, submitted in opposition to petitioners’ motion
for writ of mandate, states that: “Denying unbefriended residents the opportunity for
IDT’s to make certain decisions regarding appropriate end of life care would result in
unnecessary pain and harm to residents, mandated provisions of care that is contrary to
generally accepted health care standards, and the denial of care to which they are legally
entitled. For example, cardiopulmonary resuscitation (CPR) is not indicated in cases of
cardiac or respiratory arrest of certain frail, terminally ill patients where CPR is highly
likely to be medically ineffective and to cause broken ribs and other complications for the
very small percentage of such individuals who survive the initial arrest. Many
geriatricians and other health care professionals believe it would be not only a distinct
unkindness, but also medically futile (sometimes called ‘medically ineffective’)
treatment, which doctors are not required to provide. Most unbefriended residents, in the
absence of an advance directive, pre-existing Physician Order for Life Sustaining
Treatment (POLST), or other information about their treatment wishes, would be unable
to obtain any such ‘do not resuscitate’ order if resort to court approval or conservatorship
appointment were required due to practical and financial constraints. Also, terminally ill
residents are entitled under Medicare to the benefit of hospice care. This care provides
immeasurable benefits to residents with advanced terminal illness that helps them die
with dignity, including specialized pain-relieving care and additional social service
support . . . . However, if court intervention or conservatorship were required to make
hospice referrals, many residents would be denied their rights to receive hospice
benefits.”
61
home residents across the state. The test for ripeness requires us to consider not only
whether the issue presented is appropriate for judicial resolution, but any hardships that
may result if we refuse to decide the issue now. CAHF, as an intervenor in the superior
court, estimated that 15 percent of the nursing home residents covered by section 1418.8
(900 to 1,800 residents) currently receive hospice or palliative care through the section
1418.8 process. Even if we thought the issue might be unripe (and we do not), the risk of
grave consequences to a significant number of Californians would nevertheless move us
to answer the questions posed now. And as for the Director’s state action objection, “the
state constitutional right to privacy (Cal. Const., art. I, § 1), one of the traditional sources
of a patient’s right to autonomy and bodily integrity, protects against private conduct[.]”
(Wendland, supra, 26 Cal.4th at p. 541, fn. 10.)
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 who were once nursing home residents, recounting situations in which
nursing home staff members—acting on their own, without consulting the resident, and
31
Petitioners’ opening brief on cross-appeal at pages 30, 57 (IDT’s are making
decisions under section 1418.18 “to end lives”); id. at page 58 (“the Department is in no
way limiting the ending of lives”); id. at page 77 (“When statutes permit ending life, they
say so explicitly.”); id. at page 78 (“far greater protections would be required to cause
death” than section 1418.8 provides”); ibid. (“result” of decisions under section 1418.8 to
cease curative care is “final, unappealable death”).
62
sometimes without even pretense of the authority from an IDT or a physician—imposed
or changed a POLST or a DNR order, or decided to place a resident on comfort care,
sending the person to hospice care and ceasing all curative treatment. Citing these
declarations, the trial court specifically found that nursing homes are “making end of life
decisions without consulting patients and without considering the patient’s wishes as to
end of life decisions.” 32
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 relief, 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
32
The principal findings were as follows: (1) “[T]he declaration of ombudsman
Cheryl Simcox describes being at IDT meetings that discuss decisions such as hospice
care, [and] DNR [Do Not Resuscitate] . . . .” (2) “Social Worker Margaret Main also
describes a patient whose wishes included that she did not want life sustaining treatment
were conveyed to the RN and social service designee, but the primary physician
determined that the patient lacked capacity and changed the POLST to CPR and full
code. . . . The social worker later found a cousin of the resident to sign the POLST
reflecting the patient’s wishes, but Main points out that the patient could have been
subjected to various life sustaining treatments against the patient’s wishes.” (3) “A
physician order for life-sustaining treatment (POLST) was signed by a physician, but not
by [resident] Mark [H.], that stated ‘full code’ [meaning full life-sustaining treatment]
when Mark [H.] entered the nursing facility. Prior to a meeting by the IDT, [local
ombudsman Geneva] Carroll visited Mark [H.] and asked if he wanted to live or die, but
he did not respond, nor did his facial expression change, although when Carroll left, he
stated ‘come back any time.’. . . At a meeting of the IDT, Carroll discovered that no one
had asked Mark [H.] what he wanted so the IDT went to talk to him, but all he said to the
nurse practitioner that spoke to him was ‘Do you know what I am?’ Thereafter, the
meeting resumed and Mark [H.]’s POLST was changed from full code to comfort care
only, meaning Mark [H.] would receive no life sustaining treatment although he would
receive nutrition . . . . Mark [H.] passed away at the facility while in the care of hospice in
February 2013,” about two months after the change in his POLST.
63
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.) After spending more than a year in a
coma following an auto accident, Robert Wendland, the patient in Wendland, remained
severely disabled, physically and cognitively, despite years of therapy. (Id. at p. 524.)
He was able to supply some yes or no answers using an augmented communication
device, and on one occasion after answering a series of such questions, he did not answer
when asked whether he wished to die. (Id. at p. 528.)
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 Probate Code section 2355
64
in light of the relevant provisions of the California Constitution” (Wendland, at p. 524)—
the privacy clause, Article I, section 1, securing a right to refuse medical treatment, which
is in turn rooted in the fundamental right of personal autonomy (Wendland, at pp. 531-
532)—the court held that “a conservator may not withhold artificial nutrition and
hydration from such a person absent clear and convincing evidence the conservator’s
decision is in accordance with either the conservatee’s own wishes or best interest.” (Id.
at p. 524.) That burden of proof was not met, the court found, under the “dual standard”
governing conservator decisionmaking under Probate Code section 2355 (Wendland, at
p. 542): either the “primary standard” for evaluating Rose’s proposed decision (based on
Robert’s actual wishes) (id. at pp. 542-552), or the “fallback” best interests standard
(which applies in all cases where the patient’s wishes cannot be determined) (id. at
pp. 552-554).
It seems clear why petitioners characterize the IDT determinations they seek to
challenge in the eighth cause of action, in blunt terms, as “decisions to end life.” That is
the causative framing used by the Wendland court. (See Wendland, supra, 26 Cal.4th at
p. 554 [“the exceptional case where a conservator proposes to end the life of a conscious
but incompetent conservatee”]; id. at p. 530 [“the conservator has claimed the authority
to end the conservatee’s life”]; id. at p. 538 [“[a]t the time the Legislature was
considering the present version of section 2355, no court had interpreted any prior
version of the statute as permitting a conservator deliberately to end the life of a
conscious conservatee,” italics omitted]; id. at p. 545 [“the primary standard for
decisionmaking set out in section 2355 does articulate what will in some cases form a
constitutional basis for a conservator’s decision to end the life of a conscious patient”].)
But Wendland used this language to describe the plight of a conservatee who faced
certain death if deprived of life support, which is why temporary life-sustaining measures
had to be taken while his conservator’s decision to “pull the plug” was litigated.
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.
65
(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 a change in a
33
Much of the dispute between the parties over what petitioners characterize as
“life ending” decisions revolves around the question whether a referral to hospice care, in
particular, should be characterized as such a decision. We agree with the Director that it
is not properly so characterized. To the contrary, it is most often a choice in favor of
comfort and quality of life over unbearable pain. Essentially, hospice care “recognizes
that the impending death of an individual warrants a change in the focus from curative
care to palliative care for relief of pain and for symptom management.” (Medicare
Program, FY 2017 Hospice Wage Index and Payment Rate Update and Hospice Quality
Reporting Requirements, 81 Fed.Reg. 52144, 52145 (Aug. 5, 2016) (Medicare Program
Update); see 48 Fed.Reg. 56008, 56008 (Dec. 16, 1983).) The “goal of hospice care is to
help terminally ill individuals continue life with minimal disruption to normal activities
while remaining primarily in the home environment.” (Medicare Program Update, supra,
66
POLST or DNR order or to a hospice transfer decision will receive notice, and anyone on
the IDT who has reservations about such matters can object, triggering the potential for
judicial review not only before any such decision is implemented, but on an ongoing
basis in the process of periodic IDT review.
5. Section 1418.8 Covers the IDT Decisions Being Challenged in This Case
As a matter of statutory interpretation, separate from their reliance on Wendland,
petitioners argue that section 1418.8 may be used only for routine, day-to-day decisions
to initiate nonintrusive medical treatment, which, so they say, cannot include decisions to
81 Fed.Reg. 52145.) “[H]ospice uses an interdisciplinary approach to deliver medical,
nursing, social, psychological, emotional, and spiritual services through use of a broad
spectrum of professionals and other caregivers, with the goal of making the beneficiary as
physically and emotionally comfortable as possible.” (Ibid.)
We see nothing in the federal statute and regulations governing Medicare coverage
for hospice care requiring that life-sustaining care, such as insulin, therapeutic
transfusions, dialysis, or a feeding tube—which are forms of supportive care, since they
are not designed to bring about a cure—must be discontinued. These statutes and
regulations prohibit transfer to hospice absent two physicians’ determinations that the
patient is terminally ill with a life expectancy of six months or less. (42 C.F.R.
§§ 418.20, 418.22(b)(l).) For such Medicare beneficiaries, hospice care is a benefit under
Medicare Part A. (42 U.S.C. § 1395d(a)(4).) Under Medicare, however, the patient must
be notified of “the palliative rather than curative nature of hospice care, as it relates to the
individual’s terminal illness.” (42 C.F.R. § 418.24(b)(2).) Upon electing hospice care,
the patient waives other “Medicare services that are related to the treatment of the
terminal condition for which hospice care was elected or a related condition,” with
certain exceptions. (42 C.F.R. § 418.24(d), italics added.)
Similarly, under California law, Medi-Cal provides a hospice care benefit for its
beneficiaries that are terminally ill, which also is limited to a patient’s last six months of
life expectancy, and is offered “in lieu of other care.” (Cal. Code Regs., tit. 22, § 51349,
subds. (a), (c); Welf. & Inst. Code, § 14132, subd. (w); but see Welf. & Inst. Code,
§ 14132.75, subd. (a)(4).) But here, too, “[p]alliative care,” which is utilized in hospice,
is not inherently incompatible with curative care and does not by its nature require the
end of curative care. Removing any doubt about this, legislation enacted in 2014 makes
clear that palliative care is available along with curative care in California. (Welf. & Inst.
Code, § 14132.75, subd. (a)(4).)
67
withhold or cease treatment. We have dealt with the first step in this line of argument
already in the context of the administration of antipsychotic medications. (See part
IV.G.6., ante.) We reach the same conclusion here. The breadth of the statutory text,
read plainly—“decisions concerning his or her heath care”—encompasses health care
decisions made in anticipation of the end of life. In deciding the facial constitutionality
of section 1418.8, the Rains court was not called upon to consider actual IDT
decisionmaking, yet in dicta it placed a “routine, day-to-day” limitation on the statute by
reference to the statutory preamble. Absent ambiguity, we see no need, nor is it proper,
to delve into legislative intent suggested by uncodified language outside the body of the
statute. (Allen, supra, 21 Cal.4th at pp. 860-861.) Faced, as we are, with an as-applied
constitutional challenge to IDT decisionmaking that goes beyond “routine, day-to-day”
medical treatment, we believe there is good reason to depart from the interpretation of
section 1418.8 adopted in Rains on this specific point, while otherwise following its
holding. (Lucent, supra, 241 Cal.App.4th at p. 35.)
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 Probate Code section
2355 in a conservatorship case, holding that, “by necessary implication, [it] gives the
conservator power to withhold or withdraw consent to medical treatment under
appropriate circumstances. Probate Code section 2355 contemplates that the conservator
faced with a decision about medical care will exercise his judgment. . . . Following this
process, the conservator may consent to treatment. Just as importantly, however, the
conservator may also withhold consent. Unless Probate Code section 2355 is read to
include that correlative power, the statute would simply—and absurdly—require the
conservator to approve blindly all medical recommendations. This cannot be what the
Legislature intended, since to deny conservators the power to withhold consent would
render meaningless the statutory references to a decisional process.” (Id. at pp. 200-201.)
The same reasoning applies here.
68
We close with another apt observation from Drabick, one that we think sums up
well, in a general way, the importance of upholding section 1418.8 in application, and
doing so in a way that it respects the constitutionally protected rights of nursing home
residents. Drabick, like Wendland, involved a conservator’s proposal to withdraw
feeding and hydration tubes that were keeping the conservatee alive. (Drabick, supra,
200 Cal.App.3d at pp. 191-192.) That conservatee, William Drabick, was in even worse
circumstances than those of Robert Wendland. He was unconscious, having been in a
coma for more than two years when his conservator sought to remove him from life
support. (Id. at p. 191.) In an opinion that thoroughly canvassed the applicable precedent
a few years before Wendland, a Sixth District panel reversed a trial court order denying
the conservator’s request and directed it to reconsider. (Drabick, at p. 189.) 34
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 that 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
34
The Supreme Court disagreed with Drabick’s analysis in certain particulars
(Wendland, supra, 26 Cal.4th at p. 537) and reached a different conclusion than Drabick
did about the applicable burden of burden of proof (Wendland, at pp. 544-548), but
notably left Drabick’s holding undisturbed in the context of a permanently unconscious
and persistently vegetative conservatee (Wendland, at p. 555).
69
exercising a constitutional right.’ ” (Drabick, supra, 200 Cal.App.3d at p. 209, footnote
omitted.)
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.) Section 1418.8 may not be a perfect solution to the difficult and nearly
insoluble problem of providing for informed consent to medical treatment on behalf of
decisionally incapacitated residents of nursing homes who are without family or friends
to speak for them, but it was our Legislature’s choice. While petitioners have done much
in this case to expose the imperfections of the statutory scheme the Legislature enacted, it
is our duty to uphold the challenged statute if it can be done in a manner that is consistent
with constitutional imperatives. That is what we have done.
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 section 1418.8.
The superior court shall enter a modified judgment declaring that, to preserve the
constitutionality of the statute, the court interprets section 1418.8 to require nursing
homes to adopt, and the Department to enforce, the following procedural safeguards:
(1) 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
patient representative 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
70
notifications must be made not only to the resident, but also to at least one competent
person whose interests are aligned with the resident.
(2) Opportunity to be Heard: Except in emergency 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).
(3) 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.
71
_________________________
STREETER, J.
We concur:
_________________________
POLLAK, P. J.
_________________________
TUCHER, J.
A147987/California Advocates for Nursing Home Reform v. Smith
72
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.
73