CONSENT: California Advocates for Nursing Home Reform et al. v. Smith* (Court of Appeal, First District, Division 4, A147987) 

This case involves a challenge to the constitutionality to Health & Safety Code section 1418.8 which allows for a statutory procedure by which interdisciplinary review teams can approve medical interventions recommended by the physician of a patient who is a resident in a skilled nursing or intermediate care facility, lacks decision-making capacity, and has no one to make health care decisions for them.

In 2015, the trial court found the process set out in section 1418.8 to be unconstitutional “in that it violates a patient’s due process rights by failing to provide for adequate notice and opportunity to the patient to oppose the determination of incapacity, the determination of the absence of the legal substitute decision maker, the prescribed medical intervention and the right to seek [judicial review].”

CMA, along with other amici, filed an amicus curiae brief in support of CDPH seeking a reversal of the trial court’s decision and in defense of the constitutionality of section 1418.8. The brief argues that there will be significant negative consequences, including adverse impacts on patients who will not receive necessary treatments, by the trial court’s decision to declare section 1418.8 unconstitutional and prohibit the use of the statutory procedure. It also argues that the Legislature’s goal to provide timely and efficient care for patients who reside in skilling nursing and intermediate care facilities will be frustrated by requiring physicians to seek judicial approval before providing recommended care and would prevent patients from getting care where the time for medical intervention is limited. On July 22, 2019, the Court of Appeal reversed the trial court's decision and sent the case back to the trial court.