by Robert Gibson, Ph.D., J.D.

Dr. Thaddeus Mason Pope, director of the Health Law Institute at Hamline University School of Law wrote a compelling piece in the New England Journal of Medicine entitled Making Medical Decisions for Patients without Surrogates.  This addresses the sticky problem of how to make decisions for residents who cannot make them themselves and who have no one to speak for them.  This is also addressed in California under HSC 1418.8, which allows the interdisciplinary team (IDT) to provide informed consent for unbefriended and incapacitated residents in LTC.

In his article, Dr. Pope examines the issue of unbefriended and decisionally incapacitated residents and the need to both protect these most vulnerable residents and also to provide reasonable means of representing their wishes or best interests.  Unlike my recent CALTCM Wave article, he addresses this on a national level, noting the existence of very few legal constructs such as HSC 1418.8.  As is the case in CA, he outlines use of advance directives, POLST, designated surrogates and emergency intervention as preferred options for addressing informed consent when they are available, but also approaches for those who have neither advance care planning nor anyone to represent them and who are decisionally incapacitated.

Nationwide, conservatorships are costly for individuals and court systems in a time of diminishing resources, and as a result, they are often not a realistic option.  Court involvement may also be cumbersome and impractical for making ongoing, day-to-day medical decisions.  Dr. Pope promotes the use of ethics committees or multi/interdisciplinary teams as providing a reasonable balance of due process and efficiency.  Most striking to me was his conclusion in his discussion of state-by-state variation in decision-making options for the unbefriended and incapacitated resident that:

“The remaining states have no clear legislative or regulatory guidelines, so in order to ensure transparency and fair process for unrepresented patients, it is up to facilities to develop their own institutional policies.  So long as legally sanctioned mechanisms are nonexistent or inadequate, I believe that providers have both a duty and the discretion to design these policies.”

As a LTC psychologist who deals directly with issues of capacity on a daily basis, I am quite intrigued by this conclusion and see great possibilities and a model for developing transparent and fair systems to address this challenging issue.  As someone who is also an attorney, I am grateful that as practitioners in California, we are one of the few states that has a “legally sanctioned” mechanism that is quite adequate to the task when applied properly.¹

I would encourage you all to take the time to review Dr. Pope’s fine article on this very difficult subject, and to also take time to review your use of HSC 1418.8.  As noted in my previous Wave article, certain “advocates” are currently pursuing a petition to limit the use of HSC 1418.8 such that we could lose this very rare and valuable tool for provision of needed care for this population.  It is important to ensure that we are following and documenting the appropriate application of this statute.  Also, that we educate others of its function to avoid a challenge to it based on distortions and possible misapplications of HSC 1418.8 used to justify its demise, as is the case in a current legal challenge to this statute.  This would likely lead to various negative outcomes, such as a shift to “work-arounds” like “double doctoring,” which has no basis in law, the refusal of facilities to admit incapacitated residents who lack a clearly defined surrogate decision-maker, or medical “gridlock” as facilities attempt to petition courts for needed consent, as discussed in Rains v. Belshe (1995) 32 Cal.App.4th 157.

1.      Gibson, R., Boyd, J., Medical Decision-Making in California Long-Term Care Facilities:  Health and Safety Code section 1418.8, a Mandated Alternative to Conservatorship.  Trusts and Estates Quarterly, Volume 19, Issue 1, 2013.

Click here for the NEJM article mentioned in this article.

Want to discuss this article in the CALTCM Blog?   Click here now!