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. First, 4735 permits the provider to override the surrogate. But in a 1418.8 situation, the physician “is” the surrogate. It does not seem coherent to say that a physician may override her own decision.
Second and more importantly, the circumstances under which 4735 might be (and are) applied are so vague and so variable, that allowing its application in 1418.8 situations practically grants providers the same broad power to make end-of-life decisions that the Superior Court determined they should not have.
Among other things, in a typical conflict situation, there is a “check” on the use of 4735, namely the non-provider surrogate. there is no such “check” when 4735 is used in a 1418.8 situation.
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.