Making Medical Treatment Decisions for Incapacitated Patients without Surrogates in California

Last month in the New England Journal of Medicine, I called on healthcare providers and policymakers to improve the mechanisms by which medical treatment decisions are made for incapacitated patients without surrogates (the "unbefriended" or "unrepresented").  This was a renewal of my 2012 call and more comprehensive review of existing (inadequate) processes.



I am pleased to see growing attention to the problem, recently, in publications like Scientific American and the New York Times.



But the issue seems especially active in California.  At least for long-term care facilities, for the past two decades, California has provided a decision making mechanism called either an "Epple Committee" or California Health & Safety Code 1418.8 "interdisciplinary team" (IDT).  But there is a battle brewing over the adequacy and very legality of the IDT.

Robert Gibson

Defending the IDT



On the one hand, Robert Gibson, a San Diego clinical psychologist and lawyer, has written some cogent arguments and explanations (here and here and here) defending the IDT.  



In one of his articles, Dr. Gibson concludes:  "Given the requirements of 1418.8 to assess decision-making capacity, the standards enunciated, and the numerous safeguards built into the statute--including the requirement for an impartial 'patient representative' such as an ombudsman to serve on the IDT--HSC 1418.8 still seems the best solution to a troubling problem."



Attacking the IDT

Mort Cohen

On the other hand, some groups like Disability Rights California have illustrated some concerns.  Going further, California Advocates for Nursing Home Reform filed a lawsuit in Alameda Superior Court challenging the constitutionality of 1418.8.  



CANHR is represented by Mort Cohen, of Golden Gate University School of Law.  According to Professor Cohen:  “This statute singles out nursing home residents for intrusive treatment without notice or a chance to oppose. In California, we give these residents fewer protections than we do prisoners or persons with mental illness."