Update & Opinion: 

CANHR v. Chapman (Epple, 1418.8) Case, What Should Nursing Homes Do?

California nursing homes, hospitals, and long-term care professionals waited a long time to get the final ruling in the matter of CANHR v. Chapman, which was decided last year.  The judge seemed to be taking longer than expected in issuing the writ, perhaps because he understood its far-reaching implications.  But finally, on February 4, the order was published—and as expected, it will not permit nursing home ethics committees or interdisciplinary teams (IDTs) to consent for antipsychotic drugs or for “withholding or withdrawing” of life-sustaining treatment.  The California Department of Public Health, via the Attorney General’s office, has 61 days from the date this order was released to appeal the decision, if they decide to do so.  CALTCM, along with the California Association of Health Facilities (CAHF) and the California Hospital Association (CHA), will be among the organizations urging CDPH to appeal this ruling, which as written will make it nearly impossible to provide appropriate, compassionate care to the unbefriended incapacitated nursing home resident.

We have been fortunate in California to be able to utilize the interdisciplinary team to make decisions on behalf of incapacitated, unbefriended nursing home residents for the last 15 years.  Unfortunately, the lawsuit brought by California Advocates for Nursing Home Reform—which was primarily targeted at a few bad players who seemed to actually be violating the Epple law (HSC 1418.8) to restrict rights, prescribe antipsychotics, or make end-of-life decisions with consent from an IDT, sometimes even when there were family members available to represent the resident or where incapacity was not clear —resulted in a decision that ruled the law unconstitutional.  The “examples” given, unfortunately, were “snippets” that lacked sufficient detail to allow examination of the facts upon which the CANHR case relied, and appeared edited to support the CANHR position.  CAHF submitted a strong amicus brief, and I wrote a declaration that was submitted in this matter along with the brief on behalf of the Attorney General, urging the judge not to throw out 1418.8, but these efforts were unsuccessful.

Without getting into the nuts and bolts of the ruling, which seem poorly thought-out at least to my non-legal mind, it is clear as it stands that at least with respect to end-of-life care and the use of antipsychotics, we will clearly not be able to use the IDT to consent to orders for DN(A)R, or even withholding of tube feeding in advanced dementia patients, on POLST forms.   In a somewhat puzzling twist, the judge recognized the importance of hospice care for terminally ill patients, and made a provision allowing for hospice admissions for these patients—but it is unknown whether a hospice could actually admit a patient residing in a skilled nursing facility without being able to withhold “life-sustaining treatments”—and it is unlikely that an IDT would be willing to take the risk of signing the person onto hospice no matter how appropriate.

It seems that the judge did not realize that the great majority of these incapacitated, unbefriended nursing home patients are severely cognitively impaired dementia patients, because some of the reasoning in his finding of unconstitutionality had to do with due process of “giving notice” to the patient that s/he had been ascertained to lack decision-making capacity by the physician.  Obviously in this population, that notion would be a meaningless exercise.  This lack of understanding was further illustrated by CANHR in the very beginning of the complaint, where they asserted that 1418.8 “…denies infirm residents…fundamental rights to refuse treatment…”  This statement is based on the failure to appreciate that the statute is targeted to persons who lack the ability to consent or refuse treatment due to incapacity, or more basically, what incapacity even means in clinical/practical terms.

So, as we look over the final writ—and hope that the California Department of Public Health (CDPH) will appeal the initial ruling—everyone is asking, “What should we do?”  Hospitals are understandably worried that they will not be able to discharge patients who lack decision-making capacity and have no “responsible party” who can help make decisions for them.  Obviously, nursing homes have neither the manpower nor the finances to take every such patient to court for routine care that requires consent for compassionate end-of-life care or medically necessary antipsychotic medication—plus, even if they did have the resources, there would be an unacceptable delay in providing necessary care via the court system in many cases.  It seems that the most prudent course of action is simply not to accept these patients in transfer from hospitals.

Additionally, for residents already in LTC who lack any decision-making option absent 1418.8, facilities may be faced with the need to consider conservatorship options in the rare cases where they are available.  In some or many cases, hospitalization of otherwise treatable residents may be necessary due to our inability to provide needed care due to lack of consent and decompensation as needed treatments (.e.g., antipsychotic medications) are removed.  Furthermore, we would be faced with the inability to readmit these residents as  “the transfer or discharge is necessary to meet the resident’s welfare and the resident’s welfare cannot be met in the facility” (42 CFR 483.12).

I believe as a nursing home medical director, it is unacceptable and unconscionable for my homes to admit a patient for whom we will not be able to provide appropriate medications, and for whom we will have to assume that the most aggressive and invasive care is desired, including sending the patient to the hospital for any life-threatening illness—even if the patient has an advanced malignancy or profound, end-stage dementia.  We will have to do CPR on these patients, and I do not want to put my personnel or these unfortunate residents through that.  It’s possible that invoking futility, or as is now preferred “medically non-beneficial treatment,” we may be able to create DNR orders within the four walls of the facility with the use of an Ethics Committee, but that would be risky.  The judge did mention the sections of the Probate Code (sections 4735-6) stating that healthcare professionals are not obligated to provide futile care—which arguably, a feeding tube or CPR in a frail, end-stage dementia patient would constitute.  But again, even if such orders (DNR or no tube feeding) were done in the best interest of a terminally ill patient, a facility or physician might be placing themselves at risk by writing and implementing them without the mechanism and framework historically provided by 1418.8 (Epple).

It is estimated that roughly 5000 California nursing home residents are currently incapacitated and unbefriended.  Some facilities will continue to care for them, and perhaps even accept new residents in the spirit of cooperation with their local hospitals.  But ultimately, unless they are fortunate enough to have a sudden catastrophic event, virtually all of these dementia patients will wind up being sent to hospitals at some point, being subjected to the bewildering and painful interventions associated with that—catheters, restraints, IVs, tubes, monitors, delirium, high-dose antipsychotics (without consent, by the way, CANHR)—and many will not be able to come back “home” where they are known and cared for by our staff who know them so well due to the noted inability to treat if they did return.  I fear that the amount of personal suffering that will occur as the result of this ill-advised decision will be much worse than we can currently envision, but I hope I am wrong.

At its root, this whole mess is an unintended consequence of a well-intentioned attempt by CANHR to prevent unnecessary and inappropriate use of antipsychotics and to “protect” the rights of LTC residents.  Unfortunately, the baby is getting thrown out with the bathwater, and California’s nursing home residents are the ones who will be suffering the consequences.  Because let’s face it, a few dozen, or maybe even a hundred, California nursing home residents have been receiving inappropriate antipsychotics based on IDT consent via 1418.8 (and of course many more with the consent of a surrogate, although we have done a good job of reducing it—which this ruling will not affect at all).  But all of these 5000 or so long-term residents with dementia are going to die sooner or later, and thanks to this decision, many of them are going to be subjected to the unkind and (to them) incomprehensible suffering associated with the prolongation and medicalization of death.  Let’s hope when we come out on the other end, we have a sensible solution to this.

Considering that CALTCM members have many different perspectives, we welcome insights and comments from the WAVE's readers about the implications of this ruling and order for our members and the patients we serve.

Click here to view judge’s order.

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