In a groundbreaking decision, the First District Court of Appeal has ruled 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 Health and Safety Code Section 1418.8, which permits 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.

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 includes 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. The holding reiterates that consent is foundational to treatment and cannot be disregarded because of a patient’s disabilities, lack of family, or care setting.  Implementation of the Court’s decision is the next step in the case.  Stay tuned.