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California Advocates For Nursing Home Reform v. Smith

California Court of Appeals, First District, Fourth Division

July 22, 2019

CALIFORNIA ADVOCATES FOR NURSING HOME REFORM et al., Plaintiffs and Appellants,
v.
KAREN SMITH, as Director, etc., Defendant and Appellant.

          Alameda County Superior Court No. RG13700100. Hon. Evelio M. Grillo Judge.

          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.

          STREETER, J.

         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 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 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, 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.) 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 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”; (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.)

         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.)

         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. 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 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 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 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 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 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.

         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 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 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 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 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 ...


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