An estimated 10,000 residents in California long-term care facilities are classified as mentally incapacitated and, because they lack a designated decision maker, are represented without their knowledge or consent by the facility in end-of-life discussions.

Make that “were represented,” past tense. Alameda County Superior Court Judge Evelio M. Grillo ruled last week (pdf) that patients must be notified when classified as incapacitated and given an opportunity to argue the case in court should they be so inclined. Anything less is a denial of constitutionally guaranteed due process of law.

Judge Grillo found Health and Safety Code §1418.8, passed in 1992, unconstitutional. He recognized that his ruling would be tough on nursing homes.

“The court is aware that this statute was the Legislature’s attempt to deal with a very difficult and significant problem of how to provide timely and effective medical treatment to patients in skilled nursing facilities without delays that were often happening when a petition had to be filed in probate court. The court acknowledges that this order will likely create problems in how many skilled nursing facilities currently operate.”

But the court found “the due process rights of these patients more compelling. The stakes are too high to hold otherwise.”

The ramifications of the law extended beyond end-of-life decision-making. Patients declared incompetent were given psycho-active drugs and otherwise restrained against their will. “A patient may not only lose the ability to make his or her health decisions, but also to manage his or her own finances, determine his or her visitors, and the ability to leave the facility,” the judge wrote, noting that an error could trigger a total loss of personal control.

The lawsuit was filed in October 2013 against the California Department of Public Health (CDPH) by Golden Gate University School of Law Professor Mort P. Cohen on behalf of California Advocates for Nursing Home Reform (CANHR). Cohen told the San Francisco Chronicle at the time, “We give these residents fewer protections than we do prisoners or persons with mental illness.”

After the ruling, Professor Cohen said, “The judge understood that what is convenient for nursing homes turns out to be highly intrusive to residents. This decision recognizes that people do not lose their rights to life and liberty simply because they live in a nursing home.”

Mark Reagan, an attorney representing the California Association of Health Facilities, told Kaiser Health News that the ruling could be bad news for patients who don’t have a designated decision-maker. “If this decision makes it more difficult to supply necessary care at the bedside, this population is going to be less served,” he said.

Hopefully, it won’t take another 23 years to address that unintended consequence should it arise.

–Ken Broder

To Learn More:

Judge Strikes California Law That Allowed Nursing Homes to Make Medical Decisions for Mentally Incompetent Residents (by Anna Gorman, Kaiser Health News)

Nursing Home Advocates Challenge Treatment Law (by Bob Egelko, San Francisco Chronicle)

Court Order Protects Nursing Home Residents (California Advocates for Nursing Home Reform)

California Advocates for Nursing Home Reform et al v. Ronald Chapman, MD (Alameda County Superior Court) (pdf)