Rains v. Belshe

Page 185

38 Cal.Rptr.2d 185

32 Cal.App.4th 157

Esther E. RAINS, Plaintiff/Respondent, v. S. Kimberly BELSHE, as Director of the California Department of Health Services, Defendant/Appellant.

No. A063119.

Court of Appeal, First District, Division 5, California.

Feb. 8, 1995.

Daniel E. Lungren, Atty. Gen., Charlton G. Holland, III, Asst. Atty. Gen., Stephanie Wald, Supervising Deputy Atty. Gen., San Francisco, for appellant.

Lilly T. Spitz, Sacramento, for amicus curiae on behalf of appellant.

Morton P. Cohen, Golden Gate University School of Law, Kathleen Lammers, Cal. Law Center on Long Term Care, San Francisco, for respondent.

Wayne S. Braveman, Meryl Macklin, John H. Bogart, Heller, Ehrman, White & McAuliffe, Michael Feuer, William Flanagan, Eric M. Carlson, Bet Tzedek Legal Services, Los Angeles, for amicus curiae on behalf of respondent.

PETERSON, Presiding Justice.

The Legislature enacted in 1992, and amended in 1994, Health and Safety Code section 1418.8. That amended statute generally allows certain incompetent patients residing in skilled nursing facilities or intermediate care facilities to receive medical treatment, after a physician has determined a patient's incapacity to give informed consent to such treatment and an interdisciplinary review team has determined the treatment is medically appropriate. We find this statute as amended to be constitutional, and reverse the trial court's contrary ruling.

I. FACTS AND PROCEDURAL HISTORY

This appeal presents solely legal issues concerning the facial constitutionality of Health and Safety Code section 1418.8 ¹ as last amended. The lower court's ruling of unconstitutionality was directed to section 1418.8 as enacted in 1992. As we explain post, many of petitioner's arguments in the court below as to the statute's claimed deficiencies are inapposite to our facial constitutional review, which must be based upon the provisions of the amended statute. (See Building Industry Assn. v. City of Oxnard (1985) 40 Cal.3d 1, 3, 218 Cal.Rptr. 672, 706 P.2d 285.) The lower court, of course, could not consider the amendments, which were ineffective at the time of its decision. The parties agree that our decision must be based on the amended version of the statute, and have briefed its constitutionality post argument.

The challenged statute provides, after amendment in 1994 (Stats.1994, ch. 791, § 1, No. 9 West's Cal.Legis.Service, pp. 3359-3360; the amendments, including renumbering, are italicized), as follows:

"(a) If the attending physician and surgeon of a resident in a skilled nursing facility or intermediate care facility [ ²] prescribes or orders a medical intervention that requires 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 decisions on behalf of the resident, the physician and surgeon shall inform the skilled nursing facility or intermediate care facility.

"(b) For purposes of subdivision (a), a resident lacks capacity to make a decision regarding his or her health care if the resident is unable to understand the nature and consequences of the proposed medical intervention, including its risks and benefits, or is unable to express a preference regarding the intervention. To make the determination regarding capacity, the physician shall interview the patient, review the patient's medical records, and consult with skilled nursing or intermediate care facility staff, as appropriate, and family members and friends of the resident, if any have been identified.

"(c) For purposes of subdivision (a), a person with legal authority to make medical treatment decisions on behalf of a patient is a person designated under a valid Durable Power of Attorney for Health Care, a guardian, a conservator, or next of kin. To determine the existence of a person with legal authority, the physician shall interview the patient, review the medical records of the patient and consult with skilled nursing or intermediate care facility staff, as appropriate, and family members and friends of the resident, if any have been identified.

"(d) The attending physician and the skilled nursing facility or intermediate care facility may initiate a medical intervention that requires informed consent pursuant to subdivision (e) in accordance with acceptable standards of practice.

"(e) Where a resident of a skilled nursing facility or intermediate care facility has been prescribed a medical intervention by a physician and surgeon that requires informed consent and the physician has determined that the resident lacks capacity to make health care decisions and there is no person with legal authority to make those decisions on behalf of the resident, the facility shall, except as provided in subdivision (h), conduct an interdisciplinary team review of the prescribed medical intervention prior to the administration of the medical intervention. The interdisciplinary team shall oversee the care of the resident utilizing a team approach to assessment and care planning and shall include the resident's attending physician, a registered professional nurse with responsibility for the resident, other appropriate staff in disciplines as determined by the resident's needs, and, where practicable, a patient representative, in accordance with applicable federal and state requirements. The review shall include all of the following:

"(1) A review of the physician's assessment of the resident's condition.

"(2) The reason for the proposed use of the medical intervention.

"(3) A discussion of the desires of the patient, where known. To determine the desires of the resident, the interdisciplinary team shall interview the patient, review the patient's medical records and consult with family members or friends, if any have been identified.

"(4) The type of medical intervention to be used in the resident's care, including its probable frequency and duration.

"(5) The probable impact on the resident's condition, with and without the use of the medical intervention.

"(6) Reasonable alternative medical interventions considered or utilized and reasons for their discontinuance or inappropriateness.

"(f) A patient representative may include a family member or friend of the resident who is unable to take full responsibility for the health care decisions of the resident, but has agreed to serve on the interdisciplinary team, or other person authorized by state or federal law.

"(g) The interdisciplinary team shall periodically evaluate the use of the prescribed medical intervention at least quarterly or upon a significant change in the resident's medical condition.

"(h) In case of an emergency, after obtaining a physician and surgeon's order as necessary, a skilled nursing or intermediate care facility may administer a medical intervention which requires informed consent prior to the facility convening an interdisciplinary team review.

"(i) Physician[s] and surgeons and skilled nursing facilities and intermediate care facilities shall not be required to obtain a court order pursuant to Section 3201 of the Probate Code prior to administering a medical intervention which requires informed consent if the requirements of this section are met.

"(j) Nothing in this section shall in any way affect the right of a resident of a skilled nursing facility or intermediate care facility for whom medical intervention has been prescribed, ordered, or administered pursuant to this section to seek appropriate judicial relief to review the decision to provide the medical intervention.

"(k) No physician or other health care provider, whose action under this section is in accordance with reasonable medical standards, is subject to administrative sanction if the physician or health care provider believes in good faith that the action is consistent with this section and the desires of the resident, or if unknown, the best interests of the resident.

"(l) The determinations required to be made pursuant to subdivisions (a), (e), and (g), and the basis for those determinations shall be documented in the patient's medical record and shall be made available to the patient's representative for review.

"(m) This section shall remain in effect only until January 1, 1997, and as of that date is repealed, unless a later enacted statute, which is enacted before January 1, 1997, deletes or extends that date."

If the requirements of section 1418.8 are met, subdivision (i) thereof removes the need to obtain a court order under the provisions of Probate Code section 3201, which reads as follows: "If a patient [who lacks a conservator of the person] requires medical treatment for an existing or continuing medical condition and the patient is unable to give an informed consent to such medical treatment, a petition may be filed under this part for an order authorizing such medical treatment and authorizing the petitioner to give consent to such treatment on behalf of the patient."

Section 1418.8, as originally enacted, became effective on January 1, 1993. A petition for a writ of mandate (No. A060010) was filed in Division One of this court, seeking to invalidate the statute on constitutional grounds and stay its enforcement. The petition and request for stay were denied in an unpublished order.

The lower court then heard the petition generating this appeal which was filed by Esther E. Rains (petitioner). The trial court's statement of decision concluded that section 1418.8, in its preamended form, was unconstitutional, as violating the constitutional privacy rights and due process rights of nursing home patients who lack capacity to give informed consent to recommended medical intervention. This timely appeal followed from a resulting judgment.

II. DISCUSSION

We...