The California Advocates for Nursing Home Reform filed a Petition for Writ of Mandate asking that Health & Safety Code Section 1418.8 be declared unconstitutional. The legislature enacted Health & Safety Code Section 1418.8 to allow certain incompetent residents residing in skilled nursing facilities or intermediate care facilities receive medical treatment after a physician has determined that a patient is incapable of giving informed consent to such treatment and there is no person with legal authority to make such decisions on behalf of that patient. CANHR sought to have the statute declared unconstitutional for violation of due process. The Court held that Section 1418.8(a) is facially unconstitutional in that it violates a patient’s due process rights by failing to provide for adequate notice and opportunity to the patient to oppose the determination of incapacity, the determination of the absence of a legal substitute decision maker, the prescribed medical intervention and the right to seek review under Section 1418.8(j). The Court also held that Section 1418.8 is unconstitutional as applied by the Department to permit administration of anti-psychotic drugs. Since 1418.8 was not intended to permit administration of anti-psychotic drugs, compliance with the procedures set forth in Probate Code Section 3200 et seq. would still be required except in emergency situations. Attached to this blog is a copy of the Alameda County Superior Court Order granting the Petition for Writ of Mandate.
York Law Firm is comprised of Sacramento based lawyers that handle elder abuse and wrongful death cases. If you believe your loved one has been the victim of elder abuse or neglect in a nursing home or assisted living facility, or believe your family has a wrongful death claim, please call our office so that we can investigate your case at 916-643-2200 or contact us online. We are dedicated to representing families whose elders and dependent adults who have been injured, neglected or abused.