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On Jan. 27, the Alameda County Superior Court issued an order about who can consent to treatment on behalf of so-called “unrepresented patients” in nursing homes — residents who lack the capacity to make health care decisions and have no family members or friends willing to act on their behalf.
The court held that the process is constitutional, so long as:
- Notice: The resident is given written and oral notice of (a) the determination that the resident lacks capacity; (b) the determination that no surrogate decision maker is available; (c) the recommended medical intervention; (d) the fact that the IDT will make a decision about the recommended treatment; (e) the resident’s right to have a patient representative participate in IDT decision making; and (f) the resident’s right to judicial review. The written notification must also be given to at least one competent person whose interests are aligned with the resident. If the nursing facility cannot locate such a person, notice must be given to the local ombudsman for the county where the facility is located, or any other person/entity as permitted by law.
- Opportunity to be heard: Except in an emergency, the treatment decision cannot be implemented until after notice has been given to the resident and the resident has been given a reasonable opportunity to seek judicial review. The court did not specify how long this time frame should be. Nursing facility residents currently receiving non-emergency treatment authorized by an IDT decision made prior to Jan. 27 may continue the treatment without interruption, but they must be given written notice that treatment previously authorized by the IDT will continue and that the resident has the right to seek judicial review. Such a notice must also be given when a change in treatment occurs following periodic IDT evaluation.
- IDT composition: After July 27, 2021, the IDT must include a patient representative. Between now and then, the court expects facilities to exercise reasonable diligence to locate a family member, friend, or someone unaffiliated with the nursing home to serve as a patient representative. However, the court recognizes the difficulty in doing so and will not absolutely require such a person on the IDT until July 27, 2021. After that, including a patient representative will no longer be optional or merely a requirement to make “best efforts” to find a patient representative. At that time, if a family member, friend, or someone unaffiliated who is willing to serve cannot be found, the nursing facility must apply to the Superior Court for appointment of the public guardian; for appointment of a conservator or health care decision maker; or for an order authorizing health care. The nursing facility may also request such court intervention before July 27, 2021.
The Jan. 27 judgment also clarified that the IDT decision-making process can be used to authorize the administration of antipsychotic medications in nursing homes as otherwise allowed by law, and for decisions to create or modify a physician order for life-sustaining treatment, do not resuscitate, or comfort care orders, or to choose hospice care.
Hospitals are reminded that the IDT consent process at issue in this lawsuit is limited to residents in nursing facilities — including distinct-part nursing facilities. It does not apply to acute care hospital patients or to outpatients. However, this court decision may make nursing facilities reluctant to accept or continue to treat unrepresented patients.
The California Legislature is currently considering legislation to clarify and/or alter this court decision, and to identify ombudsmen or other personnel who may serve on IDTs as patient representatives. CHA is working with the California Association of Health Facilities, which represents nursing facilities, to enact legislation that protects patient rights and promotes timely access to necessary health care.
