Who can make healthcare decisions for an incompetent patient when there is no person available to give consent?

Healthcare facilities face this dilemma on a regular basis. In 1992, the California Legislature enacted Health & Safety Code section 1418.8 to deal with the issue of how to provide necessary and appropriate care to nursing home patients who lacked capacity to consent and had no designated person to provide consent for them. Under those circumstances, Section 1418.8 provides for the establishment of an interdisciplinary team at the nursing home to oversee the patient’s care and make decisions on the patient’s behalf where there is no other person legally authorized to do so.

Last week, Alameda County Superior Court Judge Evelio M. Grillo found this provision unconstitutional. Judge Grillo held that the procedure set forth in Section 1418.8 violates the patient’s due process rights because “it doesn’t require nursing homes to notify patients they have been deemed incapacitated or to give them a chance to object.”  California Advocates For Nursing Home Reform, et al. v.Ronald Chapman, M.D. et al., Case No. RG13700100.

Under principles governing judicial precedent, only decisions by the state’s appellate courts (i.e. the Courts of Appeal and California Supreme Court) are binding on non-parties. Therefore, Judge Grillo’s decision does not bind other judges across the state to make the same finding as a matter of law because the opinion was issued by the Superior Court, not an appellate body.  While it remains to be seen whether the decision will be appealed to a higher court, Judge Grillo’s decision nonetheless adds confusion and uncertainty to an already murky and controversial topic.

What Section 1418.8 Provides

Under Section § 1418.8, the interdisciplinary team (IDT) consists of the patient's attending physician, a registered professional nurse with responsibility for the resident, and other nursing home staff in appropriate disciplines. The IDT then oversees the resident's care as a team and conducts a review of the patient's care. The IDT periodically evaluates the patient "at least quarterly or upon a significant change in the resident's medical condition." In non-emergency situations, and again, only if the proper procedure is followed, the IDT conducts a pre-intervention review prior to its administration and agrees on the treatment to be provided. The IDT can then authorize the intervention. In emergency situations, subsection (h) allows the facility to administer such care without consent and prior to convening the IDT. However, if the emergency results in the application of physical or chemical restraints, the IDT must be assembled and meet within one week.

Section 1418.8 only addresses providing care under the circumstances set forth in the statute. It does not address nor authorize the withdrawal of care. By following these procedures in a good faith manner, a patient who cannot consent receives appropriate care, on the one hand, while the nursing facility would probably be protected from claims that the care provided was unauthorized, on the other.

The Impact of the Court’s Decision

How will last week’s decision impact the lives of the state’s frail and elderly nursing home population? As noted earlier, Judge Grillo’s decision is not binding throughout the state. However, the role of Section 1418.8 is so essential to nursing facility operations, that its elimination would raise significant questions:

  • Will nursing homes continue to admit incompetent patients who lack authorized decision makers? 
  • If not, where and how will such individuals receive necessary care? 
  • Will nursing homes continue to care for patients who were competent on admission, but lose competence over time and who lack authorized decision makers? 
  • What about situations where there is an authorized decision maker who for some reason becomes unavailable?

Seeking court appointment of a conservator is not an attractive or practical solution. While conservatorship proceedings are expensive and time consuming under the best of circumstance, who would have the standing and motivation to seek appointment when there is no responsible person available? Many states, including California, prohibit nursing homes from acting as a resident’s conservator if the facility is also a creditor. Even the local public guardian programs are not a workable solution. Although they exist to make decisions for those without capacity to do so, they are so overburdened that they often cannot add to their existing case loads, and for patients already in the public guardian’s service, it can take weeks – if not longer – for a nursing facility to receive a response to questions regarding care.  And while some California laws provide for judicial intervention when there is a dispute over the care to be provided, outside of Section 1418.8, there is no law providing for judicial intervention in the absence of a dispute.

What about nursing homes wishing to provide care pursuant to the statute, while complying with Judge Grillo’s ruling? If the purpose of the decision is to protect competent patients who have incorrectly been deemed incompetent, the outcome seems clear. A patient who is really competent would presumably object to any notice that he or she has been found incompetent and that his or her care will be directed by an IDT, and therefore that patient would obtain help in correcting the record regarding mental state. The dilemma is created by giving notice to a patient who really is incompetent. What benefit is there in giving notice to a truly incompetent patient, and what is the effect of such a notice? What if a patient who is not competent to make health care decisions still objects to the finding of incompetence, after receiving notice?  Does the patient have any rights after stating his or her objection?  The decision does not say.

Hopefully these and other questions regarding section 1418.8 and Judge Grillo’s ruling will be answered soon by a higher court. But someone better hurry, since the present ruling may jeopardize whether incompetent patients with no authorized decision maker will continue to receive care in California nursing homes.