In 2016, the Alameda County Superior Court issued its judgment in CANHR v. Smith. It upheld most of a challenge to the 1418.8 procedure for making healthcare decisions on behalf of incapacitated patients without surrogates.
Basically, 1418.8 allowed California long term care facilities to appoint a patient’s physician and nurse to be an “interdisciplinary team” (IDT) that serves as the patient’s surrogate.
One of the limits that the Superior Court imposed is that the IDT cannot make end-of-life decisions except in four situations. These include when the IDT is implementing the patient’s instructions or wishes. They also include when the IDT is acting under Probate Code 4735 (the California medical futility law).
4735 provides: “A health care provider . . . may decline to comply with . . . health care decision that requires medically ineffective health care or health care contrary to generally accepted health care standards . . . .”
While CANHR prevailed at Superior Court, it is appealing this part (and other parts) of the ruling (No. A147987 in 1st Appellate District). At first, this position seems unreasonable. The Superior Court’s judgment seems correct. After all, if a physician may override a “real” surrogate under 4735, then why should the physician have less discretion when there is no “real” surrogate?
Perhaps the Superior Court should have stated that providers may never refuse “wanted” life-sustaining treatment under any authority in 1418.8. That authority comes only from 4735.
On the other hand, while CANHR’s 100-page appellate brief is not a model of clarity, the appeals court might find that CANHR has a point.
The views, opinions and positions expressed by these authors and blogs are theirs and do not necessarily represent that of the Bioethics Research Library and Kennedy Institute of Ethics or Georgetown University.