California Health and Safety Code Section 1418.8 sets forth procedures skilled nursing facility (SNF) and intermediate care facilities (ICF) must follow when a resident lacks capacity to make their own healthcare decisions and does not have a legally authorized decisionmaker.
The statute authorizes an interdisciplinary team—consisting of the resident physician, a registered nurse responsible for the resident, other appropriate staff, and a patient representative—to review and authorize medical treatment.
In California Advocates for Nursing Home Residents (CANHR) v. Smith
(2019), the constitutionality of the statute was challenged. The Court upheld the constitutionality of the statute; however, the court also ruled that facilities must ensure that a patient representative is part of every interdisciplinary team even if no family member or friend of the patient is available to act in this role.
An interdisciplinary team may act without a patient representative only in the instance of an “urgent medical emergency” affecting the patient. In all other situations, if the patient lacks an available family member or friend, the facility must locate a person unaffiliated with the facility to act as a patient representative in order to use the interdisciplinary team process.
Last year, the California Legislature authorized funding to establish the Office of the Long-Term Care (LTC-PR) Patient Representative within the California Department of Aging (CDA). The Office of the LTC-PR is charged with creating a statewide solution for making patient representatives available to advocate for patients who lack capacity and don’t have a friend/family member to represent them.
CDA is in the early stages of standing up the new Office LTC-PR.