The Alameda County Superior Court, in CANHR v. Chapman, recently found a twenty three year old Health & Safety Code statute that significantly deprives nursing home residents of due process rights and authorizes certain kinds of treatment without informed consent to be unconstitutional.
Health & Safety Code section 14818.8(a) states the following:
If the attending physician and surgeon of a resident in a skilled nursing facility or intermediate care facility prescribes or orders a medical intervention that requires that informed consent be obtained prior to administration of the medical intervention, but is unable to obtain informed consent because the physician and surgeon determines that the resident lacks capacity to make decisions concerning his or her health care and that there is no person with legal authority to make those decision on behalf of the resident, the physician and surgeon shall inform the skilled nursing facility or intermediate care facility.
Reasoning that a patient has not been afforded due process if the statute does not require that notice of the above determinations or an advisement of the patient’s right to judicial review be made to the patient directly, the Court found the statute facially unconstitutional. The Court specifically concluded that the statute unconstitutionally violates a patient’s due process rights by failing to provide for adequate notice and opportunity to the patient to oppose (1) the determination of incapacity, (2) the determination of the absence of a legal substitute decision maker, (3) the prescribed medical intervention, and (4) the right to seek review of the foregoing.
The Court further found that the statute had been unconstitutionally applied to the extent that the Department of Health Services has used it as a basis to authorize (without notice or review) (1) the administration of antipsychotic drugs in non-emergency situations, and (2) facility interdisciplinary teams to make end-of-life decisions for patients without consideration of the patient’s instructions or whether life-sustaining treatment would be medically ineffective or contrary to generally accepted standards.
CANHR news article: http://canhr.org/newsroom/newdev_archive/2015/CANHR%20v.Chapman-court-order-protects-nursing-home-residents.html
CANHR v. Chapman, text of court order: http://canhr.org/newsroom/releases/2015/PDFs/CANHRv.Chapman-Order-Granting-Writ-of-Mandate.pdf