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Posted on July 25, 2019 at 4:00 AM

This week, the California Court of Appeal published a 73-page decision on how nursing homes must make treatment decisions for unrepresented residents.

The decades-old California Health and Safety Code § 1418.8 establishes an interdisciplinary team (IDT) procedure for nursing home residents who lack capacity to make their own health care decisions.

But, in 2016, pursuant to a petition from California Advocates for Nursing Home Reform (CANHR), the Alameda County Superior Court held the statute unconstitutional for failing to offer due process protections such as notice to the resident. 

The Court of Appeal reversed. construing the statute to uphold its constitutionality. First, the court held that the IDT process may be used both (1) to authorize the administration of anti-psychotic medications in nursing homes, and (2) for decisions to create or make a change to POLSTs, DNRs or comfort care orders, and to transfer patients to hospice care. Second, the court interpreted 1418.8 to require nursing homes to provide:

“(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 decision-making; and (f) the resident’s right to judicial review of IDT decisions under section 1418.8, subdivision (j). All such written notifications must be made not only to the resident, but also to at least one competent person whose interests are aligned with the resident.”

“(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.”

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