California Health and Safety Code section 1418.8 outlines the requirements a skilled nursing facility (SNF) must follow when a physician prescribes a medical intervention that requires informed consent for an "unfriended" resident, meaning an individual who lacks capacity and does not have a person with legal authority to make health care decisions on their behalf. Section 1418.8(c) defines a person with legal authority as "a person designated under a valid Durable Power of Attorney for Health Care, a guardian, a conservator, or next of kin." (For purposes of this alert, we will refer to a person with legal authority under section 1418.8(c) as a resident’s “legal surrogate.”) Over the last several years, section 1418.8 has been the subject of a prolonged legal dispute between the California Advocates for Nursing Home Reform (CANHR) and the California Department of Public Health (CDPH), with CANHR challenging section 1418.8 as unconstitutional. Just last month, the Court of Appeal finally confirmed that section 1418.8 is constitutional and remains operational. But, the decision also inserts important, additional requirements into the section 1418.8 process that providers need to be aware of moving forward.

Under the black and white language of section 1418.8, when a resident's attending physician orders an intervention that requires informed consent, but the resident lacks capacity to give informed consent and does not have a legal surrogate to make decisions for them, the physician or surgeon must notify the resident's SNF. (Health & Saf. Code, § 1418.8, subd. (a).) In general, informed consent is required where there is a "known risk of death or serious bodily harm" or significant potential complication as a result of a recommended treatment. (See, e.g., Cobbs v. Grant (1972) 8 Cal.3d 229, 244-245; CACI No. 532.) The physician and SNF may proceed with the intervention if it is approved after review by an interdisciplinary team (IDT) prior to its administration. (Health & Saf. Code, § 1418.8, subds. (d) & (e).) In emergency situations, the SNF may administer the intervention before convening the IDT. (Id. at subd. (h).) The IDT must consist of the resident's "attending physician, a registered professional nurse with responsibility for the resident, other appropriate staff in disciplines by the resident's needs, and, where practicable, a patient representative." (Health & Saf. Code, § 1418.8, subd. (e).) A patient representative may be a family member or a friend who cannot take "full responsibility" for the resident's health care decision-making or another person authorized by state or federal law. (Id. at subd. (f).) The IDT is responsible for reviewing and approving or rejecting the attending physician's or surgeon's treatment recommendations and overseeing the care of the resident. (Id. at subd. (e).)

Specifically, the IDT must review:

1. the physician's assessment of the resident's condition
2. the reason for the proposed intervention
3. the desires of the resident, where known (this must include an interview of the resident, review of the medical records, and consultation with family or friends, if any are known)
4. the type of medical intervention proposed, including its anticipated frequency and duration
5. the likely impact on the resident's condition with and without the intervention
6. reasonable alternative medical interventions considered or utilized and why they should be discontinued or are inappropriate. (Id.)

After the initial review the IDT must evaluate the intervention at least quarterly or with any significant change to the resident's condition. (Id. at subd. (g).) All of these requirements must be documented in the resident's medical record. (Id. at subd. (l).)

In October 2013, CANHR challenged the constitutionality of section 1418.8's IDT requirements through a writ of mandate against CDPH. In January 2016, the Alameda County Superior Court granted, in part, and denied, in part, CANHR's petition. The superior court, acknowledging that its decision would create problems in SNF operations, held that section 1418.8 was unconstitutional and enjoined its use because: (1) there was no requirement to notify "unfriended" residents of the physician's decision regarding capacity, the fact they lacked a legal surrogate, or the prescribed intervention so that they could challenge these determinations; (2) it was used to make decisions regarding the administration of antipsychotic drugs without adequate safeguards; and (3) it allowed the IDT to make end of life decisions irrespective of the resident's instructions and for residents who were not terminally ill, comatose, or in a persistent vegetative state. CDPH challenged this ruling and the ruling was stayed pending the outcome of the appeal.

In July 2019, the California appellate court finally ruled on this appeal, upholding the constitutionality of the IDT process, but inserting additional requirements. In California Advocates for Nursing Home Reform, et al. v. Smith (2019) 37 Cal.App.5th 814 (Smith), the Court of Appeal First Appellate District reversed the majority of the superior court's decision. As a result of that decision the section 1418.8 process now requires the following additional procedures:

Notice

• The SNF/physician must provide notice both orally and in writing to the resident and another competent person whose "interests are aligned with those of the resident"¹ before the recommended intervention may be undertaken;
• The notice must include the following information: (1) the fact of the resident has been found to lack capacity and to lack a legal surrogate; (2) the proposed treatment by the attending physician; (3) the fact the IDT will make a decision on the proposed treatment; (4) the resident's right to have a patient representative participate on the IDT; and (5) the resident's right to seek judicial review; and
• The resident must be given a "reasonable opportunity" to seek judicial review after receiving the notice.

IDT Composition

• Every IDT must include a patient representative who is unaffiliated with the SNF except in cases of emergency.

End of Life

• The section 1418.8 process may be used to impose or change a POLST, DNR, or comfort care orders, or to make a decision to provide hospice care to a terminally ill patient. The process may not be used to make a determination regarding the withdrawal of life support; that decision must be made through a court process.

(Id. at pp. 833-835 & 880.) The court also found that the section 1418.8 process may be used to make decisions related to the administration of antipsychotic medications. (Id. at p. 835.) Further, a "patient representative should be designated for each resident determined" to lack capacity "as soon as that determination is made." (Id. at p. 849.)

Although CANHR filed a petition for rehearing on August 5, 2019, it was denied on August 21, 2019 with no changes to the judgement.² While the Court of Appeal remanded the case to the Alameda County Superior Court, it did so for the sole purpose that the lower court enter a modified judgment declaring that the above procedural safeguards are required under section 1418.8. Going forward, SNFs will need to incorporate the additional requirements into their section 1418.8 processes.

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¹ This requirement would be satisfied by providing notice to the patient representative, the local ombudsman, or anyone empowered to seek judicial relief for the resident under California Probate Code section 3203. (Id. at pp. 846-847.)

² In its order denying CANHR's petition for rehearing, the Court of Appeal modified portions of its original opinion, but those revisions do not affect its final decision on CANHR's appeal.