by Robert M. Gibson, Ph.D., J.D. and Rebecca Ferrini, MD, MPH, CMD

As you know, there are some residents in long term care facilities who lack capacity to speak for themselves and have no friends or families to speak for them. These can be called “unbefriended.” As an alternative to formal conservatorship, California passed a law in the late 1990s called Health and Safety Code (HSC) Section 1418.8 (also known as the Epple Bill) permits the facility interdisciplinary teams, comprised of not only the physician, but also “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” to provide daily decision-making for these residents under strict conditions. The law eliminates the need to go to court for every decision which is both impractical and fairly pointless, given that the courts nearly always support the opinion of the experts.  Furthermore, it provides safeguards by involving multiple people in decisions and in its documentation requirements.  Many facilities find this a useful alternative to costly, unreimbursed expenses of private e conservators. However, some advocacy groups take issue with this law.

On October 23, 2013, Bob Egelko, a San Francisco Chronicle staff writer, published a brief article presenting further attacks by advocates for nursing home “reform.”   Their attacks focus on two cases:

• In the first, “a doctor found a woman incompetent and administered antipsychotic drugs without checking with two family members who were available to advise the woman on medical treatment,” and “an independent psychiatrist had later found that the woman was competent.”

• In the second, a patient “was shackled to his bed and fed through a tube after his doctor judged him incompetent despite a contrary statement on his medical chart.”

The inflammatory manner in which these cases are described will lead to public outcry of poor care for the frail elderly in nursing homes who care only for profit.  It is hard to analyze what really happened from brief snippets written from a particular point of view. Although it may be correct that these individuals received poor care, a quick review of the facts of these cases does not justify discarding HSC 1418.8.  Per 1418.8(a), if “there is no person with legal authority to make those decisions on behalf of the resident…” the IDT may serve as decision-maker.  If the physician or facility had bypassed known potential surrogates, as in the first case, they would have done so in violation of 1418.8, and also broader decision-making law.

Residents who have capacity to make their own decisions are not subject to HSC 1418.8 and should be consulted in all decisions. Residents who have previously indicated their wishes through an advance directive or POLST should have those wishes honored to the extent reasonable after they are no longer able to decide for themselves.  In general, the courts are not tasked for determining capacity for most decisions. Whether for a Durable Power of Attorney for Healthcare, completing a POLST, appointing a surrogate or 1418.8, the physician is tasked with determining capacity.  Capacity can fluctuate and is a clinical determination based on the characteristics of the resident and the complexity of the decisions being made.  If a resident is assessed to lack capacity for a particular decision, surrogates should be sought among family and even friends to help determine the best choice for the resident based on ethical principles of substituted judgment (what would they want) or, if that is unknown, the ethical principle of “beneficence” (what is in the best interests of the individual). If no surrogates can be identified, then the health care team, led by a physician, should review the case and apply the highest standard of care and compassion to the situation as well as their best judgment of what the resident would have wanted and what is best in terms of risks, benefits, and alternatives and apply that standard. This is both prudent, the community standard and, in SNFs under HSC 1418.8 the law.

In the first case, it appears the physician bypassed other interested surrogates which is a violation of the law.  In the second case, the team used 1418.8 to make a referral to hospice, involving a transfer, and a death some two months later.  In this case two separate teams of clinicians reviewed the case, determined appropriateness of placement and assured he had access to what was presumably an appropriate level of care and assured he had access to a benefit to which he was entitled and which likely made his last years better.

The sticky problem of the unbefriended resident was previously addressed in Rains v. Belshe, a case where it was discussed at length that courts are not the best place to decide about health care procedures and “incompetent persons who lack any next of kin or other substitute decision-maker should be allowed a practical, workable procedure by which consent for needed treatment could be secured.” It was further stated in Rains that a primary goal met by 1418.8 was to accomplish this “without invoking the procedure under Probate Code section 3201 (for a court order for treatment), which is plainly unworkable…since that procedure frequently requires months to produce a court hearing, and would require thousands of hearings every year in large metropolitan counties.  The resulting gridlock would serve no one’s interest – least of all, those of the patients whose medical care would be necessarily delayed.”

The conclusion in the recent newspaper article that California is “tossing out the concept of informed consent” again misses the point.  These cases are challenging and 1418.8 is the legislature’s best attempt to provide a decision-making mechanism for persons who lack both the ability to provide informed consent and also lack anyone who can represent them.  As the Rains court notes, “nursing home patients are not denied due process because their incapacity to give consent to medical interventions is initially determined by a physician and surgeon, rather than by a judicial or quasi-judicial hearing,” and that “we cannot make the facile assumption that the patient’s intentions, or a substituted judgment approximating those intentions, can be determined in a single judicial hearing apart from the realities of frequent and ongoing clinical observations by medical professionals.” In other words, why would a judge be better at making decisions about healthcare than healthcare professionals and those day-to-day primary caregivers who know the resident now?

Given the requirements of 1418.8 to assess decision-making capacity, the standards enunciated, and the numerous safeguards built into the statute--including the requirement for an impartial “patient representative” such as an ombudsman to serve on the IDT--HSC 1418.8 still seems the best solution to a troubling problem.  When properly applied, 1418.8 provides a sound and respectful alternative to informed consent that cannot be obtained due to incapacity.  This statute is also consistent with the more general standard of decision-making put forth in Barber v. Superior Court that substituted judgment be applied when possible, or if not that decisions be made in a patient’s best interests.

http://www.sfgate.com/default/article/Nursing-home-advocates-challenge-treatment-law-4921064.php  

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