San Francisco  — In a groundbreaking decision, the First District Court of Appeal ruled yesterday that “unrepresented” patients in the health care system have constitutionally protected privacy rights that require significant due process protections before treatment decisions may be imposed without their consent.
 
The case at issue, CANHR v. Smith, challenged the constitutionality of a 27 year old statute permitting nursing homes to make treatment decisions for “unrepresented” residents – those without decision making capacity or a surrogate decision maker.  While stating the statute would not be discarded on constitutional grounds, the Court nonetheless found the statute failed to provide constitutionally required protections such as notice to the resident and an advocate/representative to protect their interests.
 
The Court’s holding in the case partially expands upon and partially overrules a 2016 decision from the Alameda Superior Court that found the statute unconstitutionally failed to require notice and opportunity to object for residents and that its abbreviated process could not be used for administration of antipsychotic drugs or withdrawing or withholding end-of-life care.  
 
The First District expanded on the notice requirement and imposed a new patient representative mandate that may have to be fulfilled by “the formation of a professional community willing to carry out this critical function.”  Conversely, the Court found the statute’s decision making process could be used to approve antipsychotic drugs and to make end of life decisions, so long as the required patient advocate and right to judicial review are included.
 
Perhaps the most remarkable aspect of the Court’s decision is that the constitutional requirements: notice, opportunity to be heard, and patient advocate, are applicable beyond the nursing home setting and thus protect all unrepresented patients in the health care system.  The right of autonomy privacy, and the procedural protections that flow from it, are constitutional concerns and apply to all patients whose consent allegedly cannot be obtained due to a lack of capacity and decision making surrogate.  This would include patients in hospitals and other settings where health care is routinely delivered.
 
“The Court’s decision is an unfortunately necessary reminder that nursing home residents have the same rights as all other health care recipients and deserve due process before those rights can be impaired,” said Anthony Chicotel, staff attorney for organizational plaintiff California Advocates for Nursing Home Reform (CANHR).  “Consent is foundational to treatment and cannot be disregarded because of a patient’s disabilities, lack of family, or care setting.”
 
Amitai Schwartz, the attorney for CANHR and nursing home resident Gloria A. stated “Although the law considered by the Court is well intended, it has proved to be a mess — it’s vague, misunderstood and misapplied.  This decision brings dignity to residents who are incapable of making decisions for themselves and have no one else to make decisions for them.  The Court has required nursing homes to provide more due process to critical medical decisions affecting these infirm and otherwise powerless patients, including the administration of psychotropic drugs and decisions surrounding the end of life.”
 
The Court of Appeal decision can be read HERE.