In late July, after some four years of legal wrangling, a California Court of Appeals decision was handed down in the CANHR v. Smith (previously CANHR v. Chapman) case, which had sued the California Department of Public Health (CDPH) to challenge the constitutionality of Health & Safety Code 1418.8, also known as the Epple Law. This law, in effect for over 20 years in California, allows the interdisciplinary team (IDT) in a nursing home to make decisions—including giving informed consent for interventions that require it—on behalf of incapacitated, unrepresented residents.  

The original trial court agreed with CANHR (California Advocates for Nursing Home Reform) that 1418.8 was unconstitutional, and ruled that it violated due process by not requiring that the resident be notified of the finding (by the physician) that he/she had been deemed to lack decisional capacity.  In addition, the court ruled that 1418.8 could be used for interventions like antidepressant medication or the use of side rails, but explicitly stated that it could not be used to consent for antipsychotic medication or to consent to withholding or withdrawing life-sustaining treatment. This ruling was appealed and stayed, so the Epple law has been in effect throughout the years this case has been kicking around, but the trial court decision has had a chilling effect on the use of the Epple process in nursing facilities across the state—and has raised concerns about the ability of nursing homes to safely provide appropriate care to the estimated 5000-10,000 residents in this category residing in nursing facilities statewide.  

The Court of Appeals decision, which was over 70 pages long, was a long time in coming.  Oral arguments were finally heard this spring, and attorney Mark Reagan of Hooper Lundy & Bookman and the California Association of Health Facilities, assisted Assistant Attorney General Joshua Sondheimer in arguing this case before the court on behalf of CDPH.  It is clear from the well-reasoned decision that the judges understood the importance of 1418.8, and while recognizing that it is not a perfect law, they acknowledged that this was the law that our legislature passed, and it is the best thing we have currently to help these residents receive appropriate care.  

The appellate court struck down much of the trial court’s decision and remanded the case to the trial court to implement a few provisions to better ensure the Epple process is utilized appropriately.  First, notice must be given to the resident (which may often be a meaningless exercise, considering that most of this population suffers from severe dementia) and to a resident representative, that the physician has determined that they lack decision-making capacity, and that they have legal recourse if they do not agree with an IDT-recommended intervention.  Second, the composition of the IDT must include a resident representative who is not “employed” by the facility. This role seems to be something that would naturally fit within the purview of the ombudsman, and in many places across the state there has been excellent cooperation with local ombudsman serving on Epple committees, but at this time it appears improbable that the statewide ombudsman’s office will agree to take on this role.  So it will remain to be seen how facilities can locate such resident representatives. Perhaps local hospital bioethics committee members could participate, or there could be other outside bioethics consultant resources made available as is done in some other states.  

More importantly, the Court of Appeals explicitly stated that 1418.8 can be used to consent for antipsychotics, to change code status for residents with terminal conditions, and essentially to make end-of-life decisions in accordance with the resident’s known wishes, or—if wishes not known—then the resident’s best interests. (There are a few clinical situations that are exceptions, so it is advisable to contact facility counsel before making end-of-life decisions via the IDT.)  The end-of-life issue was one of the major concerns of stakeholders after the trial court decision, namely that when patients with severe dementia developed terminal conditions such as metastatic cancer, or even when their dementia progressed to a point where they were unable to swallow safely, facilities would be essentially obligated to send residents to the hospital to receive inappropriate, invasive treatment that would cause suffering and not prolong life significantly. Thankfully, it appears that the IDT process—with the additional safeguards delineated by the appellate court—will continue to allow these residents to receive proper, compassionate end-of-life care with hospice support when appropriate.

There will probably be a flurry of activity among our organizations and CDPH to determine how best to implement these new provisions of HSC 1418.8, but it is heartening to know that the Court of Appeals truly analyzed this case and made a careful, reasoned and appropriate decision on behalf of this extremely vulnerable population. It would not be surprising if CANHR requested California Supreme Court review of this matter, but for the time being—as for the last 20+ years—the Epple process is alive and well.  Let’s use it appropriately, judiciously, and always with the best interests of our residents as the prime guiding principle.