CHA News Article

Court Rules That Interdisciplinary Team Consent Is Unconstitutional

The Alameda County Superior Court on June 24 held a California statute unconstitutional that permits skilled-nursing facilities (SNFs) to use an interdisciplinary team to make medical decisions for a patient who lacks capacity and has no family or other representative to make those decisions. The decision in the case, California Advocates for Nursing Home Reform v. Chapman (Director of the Department of Public Health), is attached.

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, in this case the court found that the statute was unconstitutional because it didn’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 review. The court explicitly stated that interdisciplinary team consent may not be used to approve the administration of antipsychotic drugs or end-of-life treatment. 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.” Hospitals may, therefore, see an increase in unrepresented patients.

As a strict legal matter, this statute applies only to skilled-nursing facilities and not acute care hospitals. However, many acute care hospitals have adopted the California Medical Association/California Hospital Association/Alliance of Catholic Hospitals 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 Manual describes the law regarding interdisciplinary team consent (except for this new court decision), conservatorship (private or public) and the Probate Code Section 3200 process.

It should be noted that a superior court decision is binding only upon the parties to the case – not on other judges, hospitals, skilled-nursing facilities or patients. However, the defendant was the California Department of Public Health (CDPH), which is charged with ensuring that health facilities throughout California follow state laws, including laws about informed consent. If this case is not appealed, then CDPH will be required to disallow the use of interdisciplinary teams by all California SNFs.

CHA has urged CDPH to appeal the case, which would mean the decision is not effective until the appeal is heard. This move would give interested parties, such as CHA and the California Association of Health Facilities (which represents freestanding skilled-nursing facilities), time to pursue legislation to amend the statute to address the court’s constitutional concerns. This would also avoid a significant displacement of SNF patients who are receiving necessary medical treatment under care plans developed by interdisciplinary teams. CDPH has not yet determined whether it will appeal the decision or if not, what changes it will make in enforcement.