CHA News Article

Appeal Filed in Interdisciplinary Team Consent Case

Both the plaintiff and the defendant in an Alameda County Superior Court case have appealed a new ruling finding unconstitutional a California statute that allows skilled-nursing facilities (SNFs) to use an interdisciplinary team to make medical decisions for patients who lack capacity and have no family or other representative to make those decisions. The decision and the order in the case, California Advocates for Nursing Home Reform (CANHR) v. Chapman (Director of the Department of Public Health), are attached. They are not in effect pending the appeal.

The statute at issue, Health and Safety Code Section 1418.8, was enacted in 1992 and survived a previous legal challenge at the appellate level. However, the Alameda County Superior Court found the statute unconstitutional because it doesn’t require SNFs to notify the patient that he or she was determined to be incapable of making medical decisions, that there was no substitute decision maker available, the nature of the prescribed medical intervention, and how to seek judicial review. In addition, the court stated that interdisciplinary team consent may not be used to approve the administration of antipsychotic drugs or end-of-life treatment.

The court also rejected several other arguments made by the plaintiffs. The association that represents SNFs has stated that “facilities could be forced to consider transferring residents to acute-care hospitals if they develop conditions requiring non-emergent treatment that would trigger the need for an informed consent. The admission of any new prospective residents without capacity and a decision maker would be equally problematic.”

As a strict legal matter, this statute applies only to SNFs and not to acute care hospitals. However, many acute care hospitals have adopted the California Medical Association/California Hospital Association/Alliance of Catholic Healthcare model policy on making decisions for unrepresented patients, which is based on this statute. Hospitals that use this policy should consult legal counsel; they may wish to add appropriate safeguards to address the Superior Court’s concerns, or they may wish to seek conservatorship for unrepresented patients or court approval for prescribed care under Probate Code Section 3200 et seq. CHA’s Consent Manualdescribes the law regarding interdisciplinary team consent and the CANHR decision, conservatorship (private or public) and the Probate Code Section 3200 process. Information about the Consent Manual may be found at www.calhospital.org/consent.

The appeal avoids a significant displacement of SNF patients who are receiving necessary medical treatment under care plans developed by interdisciplinary teams, at least until the appellate court issues its ruling.

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