Cal. Advocates for Nursing Home Reform v. Smith

In the event of an emergency, the facility may administer treatment ordered by a physician for the resident, including applying "physical or chemical restraints," without prior IDT approval. ( § 1418.8, subd. (h).) Generally speaking, "chemical restraints" are antipsychotic medications. (See Cal. Code Regs., tit. 22, § 72018 [a chemical restraint is "a drug used to control behavior and used in a manner not required to treat the patient's medical symptoms"].) If physical or chemical restraints are applied, the IDT must meet "within one week of the emergency for an evaluation of the medical intervention." ( § 1418.8, subd. (h).)

Section 1418.8 preserves the right of a resident "to seek appropriate judicial relief to review the decision to provide the medical intervention." ( § 1418.8, subd. (j).) Under that provision, "affected persons or their representatives, such as a friend, public guardian, or other concerned person or entity, are afforded an avenue by which they may obtain 'appropriate judicial relief,' including a temporary restraining order and other injunctive relief prior to treatment, thereby satisfying due process principles." ( Rains , supra , 32 Cal.App.4th at p. 185, 38 Cal.Rptr.2d 185 .) Judicial review "may encompass review of the initial medical determination that the patient lacks capacity to give informed consent[.]" ( Id. at p. 185, fn. 7, 38 Cal.Rptr.2d 185 .)

C. The History of This Lawsuit

CANHR is, and has been since 1983, a statewide nonprofit organization dedicated to improving the choices, care and quality of life for California's

Petitioner Anthony Chicotel is a taxpayer who challenges the expenditure of tax money in enforcing section 1418.8, which he claims is unconstitutional. (See Vasquez v. State of California (2003) 105 Cal.App.4th 849 , 854, 129 Cal.Rptr.2d 701 .)

In October 2013, CANHR and Gloria A. filed a petition for writ of mandate, declaratory relief, and an injunction, challenging section 1418.8 as unconstitutional on its face and as applied, alleging eight respects in which the statute is unconstitutional or otherwise unenforceable, as set forth in eight separate causes of action: (1) the absence of prior notice and the opportunity for a meaningful hearing; (2) the absence of representation for the resident at the incompetence and surrogate determinations; (3) the absence of a requirement of an adjudication of incompetence; (4) the need for a neutral person or body to decide all issues of incapacity, surrogacy and treatment; (5) the need for neutrals to review and give consent to the treatment; (6) the need for and

B. Mandatory Inclusion of Independent Patient Representative on IDT

Patients subject to section 1418.8 presumably cannot competently speak for themselves, to anyone, in making their desires and intentions known. The practical reality, then, is that the Legislature has set up a process the objective of which is to discern, by the best approximation possible, what those desires and intentions would be if the patient could communicate effectively. No process designed to achieve that end could be perfect, but we think the one the Legislature has chosen here-which is based on a model of collaborative decisionmaking in which a number of different perspectives are represented-satisfies due process. We believe an essential feature of the IDT process that saves it from constitutional infirmity in non-emergency circumstances is the inclusion on the IDT of a patient representative who is independent of the nursing home staff.

Although the statute provides for a patient representative to participate on the IDT "where practicable," we give that phrase a narrow reading so that a patient representative must be appointed for every nursing home

D. End of Life Decisionmaking

Finally, we reject petitioner's second as-applied challenge that categorically, under no circumstances, may section 1418.8 be applied to what the parties call end of life decisionmaking, a phrase that, on the record presented here, we understand to mean any decision to impose or change a physician order for life sustaining treatment (POLST) or any decision to provide hospice care to a terminally ill patient. So long as constitutionally required notice is given, as outlined above, and so long as the IDT includes an independent patient representative, as further outlined above, we think that

C. The Standard of Review

This case arises on appeal from the issuance of a writ of mandate under Code of Civil Procedure section 1085. In such a posture, factual issues are reviewed for substantial evidence, but legal issues, such as statutory or constitutional interpretation, are reviewed de novo. ( Boyer v. County of Ventura (2019) 33 Cal.App.5th 49 , 53, 244 Cal.Rptr.3d 665 ; see Lippman v. City of Oakland (2017) 19 Cal.App.5th 750 , 756, 229 Cal.Rptr.3d 206 .) Where the facts are not in dispute, purely legal issues are involved in the determination of the facial constitutionality of a statute, and we apply a de novo standard of review. ( Alviso v. Sonoma County Sheriff's Dept. (2010) 186 Cal.App.4th 198 , 204, 111 Cal.Rptr.3d 775 .) On the other hand, an as-applied challenge "contemplates analysis of the facts of a particular case ... to determine the circumstances in which the statute ... has been applied and to consider whether in those particular circumstances the application deprived the individual to whom it was applied of a protected right." ( Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069 , 1084, 40 Cal.Rptr.2d 402 , 892 P.2d 1145 .) When reviewing an as-applied constitutional challenge on appeal, we defer to the superior court's findings on historical facts that are supported by substantial evidence and then independently review the constitutionality of the statute under those facts. ( C.M. v. M.C. (2017) 7 Cal.App.5th 1188 , 1198, 213 Cal.Rptr.3d 351 ; Board of Administration v. Wilson (1997) 52 Cal.App.4th 1109 , 1127-1130, 61 Cal.Rptr.2d 207 .)

We are unpersuaded by the Director's insistence that what petitioners complain about, at bottom, is isolated private conduct by a few nursing homes, that there is no state action here, and thus there is no basis to assert a

Faced with the choice of voiding a statute or reading it to include procedural protections to avoid constitutional infirmity, courts have often chosen the route of savings-by-interpretation. (See Elliott , supra , 17 Cal.3d at p. 594, 131 Cal.Rptr. 361 , 551 P.2d 1193 ; see also Horn v. County of Ventura (1979) 24 Cal.3d 605 , 616, 156 Cal.Rptr. 718 , 596 P.2d 1134 [construing statute to require "reasonable notice and opportunity to be heard"]; Braxton v. Municipal Court (1973) 10 Cal.3d 138 , 144-145, 109 Cal.Rptr. 897 , 514 P.2d 697 [noting that statute "must be construed so as not to violate the precepts of procedural due process; hence we interpret [statute] to require notice and a hearing"]; Board of Education v. Mass (1956) 47 Cal.2d 494 , 499, 304 P.2d 1015 [reading hearing and other requirements into statute where law could "be reasonably interpreted in a manner consistent with due process"]; Charles S. v. Board of Education (1971) 20 Cal.App.3d 83 , 94-96, 97 Cal.Rptr. 422 [denying writ challenging constitutionality of statute on procedural due process grounds, and construing statute to include specific notice and hearing requirements].)

We agree with the superior court that unbefriended nursing home patients who are perceived to lack decisionmaking capacity must receive "adequate notice" of the incapacity decision, the absence-of-a-surrogate

4. Composition of IDT

Viewing Rains as dispositive on the point, the superior court declined to rule that a constitutionally required element of due process for nursing home patients subject to section 1418.8 is that they be notified of their entitlement to have a patient representative serve on the IDT. On this point, we think more is required than the holding in Rains demands. As noted, section 1418.8, subdivision (e), provides for the participation of a patient representative on the IDT "where practicable." The Legislature defined "patient representative" broadly: "A patient representative may include a family member or friend of the resident who is unable to take full responsibility for the health care

We must reject petitioners' contentions as to timing as being beyond the minimum requirements of due process. We can agree with them that giving notice before a capacity decision is made would maximize protection of the patient's constitutional rights, and providing for a process more closely resembling an adjudication might increase that protection still further, but the question is whether the Legislature is required to provide that degree of protection as a matter of constitutional imperative.

In Goldberg v. Kelly the Supreme Court's concern about the impact on individuals affected by the state action necessitated a pre-termination hearing for welfare recipients, for they would suffer a grievous loss if their benefits were cut off while awaiting the post-termination hearing afforded by the state. ( 397 U.S. at pp. 260-264, 90 S.Ct. 1011 .) The difference in circumstances makes it far more likely here that the treatment delays that would accompany a hearing prior to the capacity determination would work to the serious harm of nursing home residents needing immediate medical intervention. ( Rains , supra , 32 Cal.App.4th at pp. 181-182, 38 Cal.Rptr.2d 185 .) The very point of enacting section 1418.8 in 1992 was to establish a fair but streamlined procedure to be used in cases of incapacitated residents without family or friends to make health care decisions on their behalf. To require, as a matter of due process, all the features of a judicial proceeding would undermine the fundamental purpose of the statute, which was to avoid the complications and delays inherent in the judicial procedure established by Probate Code section 3200 et seq.

Timing constraints make petitioners' proposed procedure infeasible. Notice immediately following a doctor's determination of incapacity, with an opportunity for judicial review before treatment begins, satisfies due process. Although the statute provides no opportunity for the resident to oppose the incapacity decision before it is made, and no administrative review procedure separate from the IDT, it does allow for judicial review of the incapacity and surrogacy decisions. This complies with the requirements of due process. The statute presupposes the patient needs a medical procedure or prescription,

Petitioners clarify that a full-blown judicial proceeding such as that involved in Probate Code section 3201 is unnecessary, but rather the Constitution would be satisfied by an administrative board or a hearing procedure presided over expeditiously, such as the administrative hearings put into operation by the Legislature following the decision in Riese v. St. Mary's Hospital & Medical Center (1987) 209 Cal.App.3d 1303 , 1318, 271 Cal.Rptr. 199 . (See Welf. & Inst. Code, § 5332.) Such a hearing, they suggest, could be conducted by "a court-appointed commissioner or referee, or a court-appointed hearing officer" ( Welf. & Inst. Code, § 5334, subd. (c) ), and therefore need not be made by a judge. This added protection, in our view, would dispense with the IDT structure altogether. Petitioners want to throw out the baby with the bath. Nothing so drastic is required. Pitted against the argument that time is of the essence in medical decisions, the preference for prior notice and an opportunity to resist the determination before it is made must give way to efficacy of the proposed intervention.

Section 1418.8, subdivision (e) provides that the IDT must "review ... the prescribed medical intervention" before it is implemented. There is no language in section 1418.8 either specifically authorizing or specifically prohibiting the IDT from reviewing capacity determinations, but the Director presented evidence in the superior court that IDT's can and do review capacity and surrogacy determinations, as well as medical treatments. This, she claims, is part of reviewing the patient's overall "condition" as prescribed in section 1418.8, subdivision (e)(1). Adopting that construction of the statute, we find the IDT process serves as a more expeditious, and constitutionally sound, alternative to judicial review, so long as a patient representative is included on the IDT.

As Rains reasoned, the resident of a nursing home sacrifices a great deal of privacy by reason of the very circumstances that have placed him or her there. ( Rains , supra , 32 Cal.App.4th at pp. 173-174, 38 Cal.Rptr.2d 185 .) Given their reduced expectation of privacy, Rains held, the incursions on nursing home residents' rights to self-determination of medical treatment are not so severe as to call for increased protection of nursing home residents. ( Id. at pp. 172-177, 38 Cal.Rptr.2d 185 .) Given most especially the participation of a patient representative ( § 1418.8, subd. (e) ) and the availability of judicial review ( id. , subd. (j)), Rains held the minimum standards of due process are met and there is no unconstitutional incursion into residents' privacy rights. ( Rains , supra , 32 Cal.App.4th at pp. 177, 182, 184, 187, 38 Cal.Rptr.2d 185 .) We agree with Rains in that respect.

To adopt petitioners' view-requiring a judicial determination for every case of incapacity in every nursing home in the state-would throw us back into the thick of the problem that led to the enactment of section 1418.8 in the first place. We could not find our way there through any form of statutory construction, for that result would be diametrically opposed to the Legislature's intent. We would be justified in imposing such a requirement on section 1418.8 only if it were a matter of constitutional imperative, and it is not.

Rains also observed that the Legislature was better able to "reflect a proper balance of social values at stake in this significant and difficult problem, and that it has done so in enacting section 1418.8." ( Rains , supra , 32 Cal.App.4th at p. 182, 38 Cal.Rptr.2d 185 .) The Legislature, after conducting hearings and giving considerable thought to various options, elected to adopt a collaborative decisionmaking process rather than an adversarial one. Rains held due process was nevertheless assured because of the right to seek judicial review of a physician's determination of a patient's incapacity as well as to the medical intervention itself, pursuant to section 1418.8, subdivision (j). ( Rains , at p. 182, 38 Cal.Rptr.2d 185 .) Thus, Rains held a judicial determination of decisional incapacity was not required, and the procedure prescribed under section 1418.8 did not violate a patient's due process rights. ( Rains , at p. 184, 38 Cal.Rptr.2d 185 .)

With the exception of the notice issue previously discussed-where we build upon Rains in order to preserve section 1418.8's facial constitutionality-we embrace the Rains court's conclusion that an IDT decisionmaking framework comports with procedural due process ( Rains , supra , 32 Cal.App.4th at p. 184, 38 Cal.Rptr.2d 185 ), and we find no greater protection is necessary for nursing home residents under the privacy guarantee of the California Constitution. ( Rains , at p. 178, 38 Cal.Rptr.2d 185 .) Nothing in Qawi convinces us Rains erred in its essential holding that the basic IDT procedure prescribed by section 1418.8 is constitutional.

Petitioners argue, largely on the basis of Washington v. Harper , supra , 494 U.S. 210 , 110 S.Ct. 1028 , that additional procedural protections must be incorporated into section 1418.8 in order to bring it in line with the demands of due process. In formulating their objections to section 1418.8, petitioners attempt to convert

G. As-Applied Challenge: Use of Section 1418.8 in Prescribing Antipsychotic Medication

1. The Nature and Dangers of Antipsychotic Medications

Although antipsychotic drugs have been recognized to have considerable benefit to mentally ill patients, they also have severe side effects, including some reversible conditions, some irreversible, and even on rare occasions, sudden death. ( Qawi , supra , 32 Cal.4th at pp. 14-15, 7 Cal.Rptr.3d 780 , 81 P.3d 224 ; Keyhea v. Rushen (1986) 178 Cal.App.3d 526 , 531, 223 Cal.Rptr. 746 ( Keyhea ); Washington v. Harper , supra , 494 U.S. at pp. 229-230, 110 S.Ct. 1028 .) Antipsychotics " 'also possess a remarkable potential for undermining individual will and self-direction, thereby producing a psychological state of unusual receptiveness to the directions of custodians.' " ( Keyhea , at p. 531, 223 Cal.Rptr. 746 .) For this reason, authorities often seek to medicate prisoners and others under their control, and those subject to such medication often object. In light of the grave consequences of administering these antipsychotic drugs, courts have recognized that MDOs, as well as state prisoners threatened with forcible administration of antipsychotics, have procedural rights before they may be administered these drugs against their will. ( Qawi , at pp. 20-21, 27-28, 7 Cal.Rptr.3d 780 , 81 P.3d 224 ; Keyhea , at pp. 541-542, 223 Cal.Rptr. 746 ; Washington v. Harper , at p. 236, 110 S.Ct. 1028 .) The exact procedures required may vary from one context to another. ( Morrissey v. Brewer , supra , 408 U.S. at p. 481, 92 S.Ct. 2593 .)

2. Antipsychotics as Prescribed in Nursing Homes

According to the Director and her supporting amici curiae, the administration of antipsychotics to nursing home residents proceeds much as described in section 1418.8, such drugs are extremely beneficial to the many nursing home patients who need them, and their use may be considered "nonintrusive" and "routine" in nursing homes. (See

The right to refuse antipsychotic medication is not absolute but may be limited by countervailing state interests. ( Qawi , supra , 32 Cal.4th at p. 15, 7 Cal.Rptr.3d 780 , 81 P.3d 224 .) Rains held the state's interest in providing care to its citizens who are unable to care for themselves on a timely basis is a compelling state interest ( Rains , supra , 32 Cal.App.4th at p. 176, 38 Cal.Rptr.2d 185 ), and we agree with that assessment. Courts have permitted unconsented medical treatment of an adult when that adult has been adjudged incompetent. ( Qawi , supra , 32 Cal.4th at pp. 15-16, 7 Cal.Rptr.3d 780 , 81 P.3d 224 ; Wendland , supra , 26 Cal.4th at p. 535, 110 Cal.Rptr.2d 412 , 28 P.3d 151 .) We conclude the same result should hold true when an individual has been deemed incapacitated by his or her attending physician and lawfully prescribed an antipsychotic drug through an IDT process under section 1418.8.

In Keyhea , supra , 178 Cal.App.3d 526 , 223 Cal.Rptr. 746 , a taxpayer action was brought challenging the practice at the California Medical Facility (CMF) of involuntary treatment of prisoners with antipsychotic drugs. The decision to administer antipsychotic drugs involuntarily on a long-term basis was made by the chairman of an institutional review board upon referral by a prison psychiatrist. ( Id. at p. 531, 223 Cal.Rptr. 746 .) The chairman's decision would be made after an oral presentation by the referring psychiatrist, a review and discussion of the patient's file by the board members, and an interview of the prisoner. ( Ibid. ) CMF's internal procedure provided for the board to review the decision to medicate every 90 days. ( Ibid. )

Under CMF's policy, inmates were afforded no right to counsel at board hearings and no right to judicial review. ( Keyhea , supra , 178 Cal.App.3d at p. 531, 223 Cal.Rptr. 746 .) Penal Code section 2600 provides that a prisoner may be deprived only of such rights as necessary to provide for the reasonable security of the institution in which the prisoner is confined and for the reasonable protection of the public. The Keyhea court found that, by statute, state prisoners retained the same rights accorded to nonprisoners in this area, and further found that under the LPS statutory scheme, nonprisoners in California have a statutory right to refuse long-term treatment with antipsychotic drugs absent a judicial determination that they are incompetent to refuse treatment. ( Id. at pp. 534-537, 223 Cal.Rptr. 746 .) Keyhea held state prisoners, like nonprisoners committed under the LPS Act, are entitled to a judicial determination of their competency to refuse treatment unless deprivation of this right is necessary to prison security. ( 178 Cal.App.3d at pp. 541-542, 223 Cal.Rptr. 746 .) The Court of Appeal held the trial court had properly ruled that prisoners were entitled to notice, judicial

Moreover, in each of the cases just discussed, there was a question of forcible administration of antipsychotics. In other words, we know the institutionalized individual objected to the administration of the drugs, whereas in considering a challenge to section 1418.8, the viewpoint of the patient is unknown. If the patient objects to being given antipsychotics, judicial review is available, and treatment with antipsychotics is usually not so urgent that the judicial process is unworkable for purposes of review. If the patient is not so staunchly opposed to the proposed medication, the IDT may be used as a viable first step to attempt to reach consensus on whether the medication should be administered. We have already held that the IDT process complies with due process, and that is true regardless of the nature of the medical intervention.

5. As a Matter of Statutory Construction, There is No Basis for Treating Prescription of Antipsychotics Differently from Other Proposed Medical Interventions

In construing a statute, we turn first to the words used, for that is the best indicator of legislative intent. ( Ramirez v. City of Gardena (2018) 5 Cal.5th 995 , 1000, 236 Cal.Rptr.3d 374 , 422 P.3d 1022 ; see Lippman v. City of Oakland , supra , 19 Cal.App.5th at p. 756, 229 Cal.Rptr.3d 206 .) Looking at the statutory text here, the specific question presented is whether a prescription for antipsychotics is a "medical intervention" as used in section 1418.8, subdivision (a). We conclude it is.

Although we, too, begin with the foundation established by the holding in Rains -which we view as basically sound-this case presents issues outside the context of the "routine, day-to-day" medical decisionmaking, and those

We see no evidence in the text of the statute that the preamble was intended to be anything more than illustrative. Giving the operative statutory text its plain meaning, as we must, we conclude that section 1418.8 was drafted with breadth enough to cover antipsychotic medications, even though their effects on patients is anything but "routine." In an apparent effort to fit the case within Rains , the Director asserts, to the contrary, that the administration of antipsychotic drugs is "routine" in nursing homes. Finding no support for this position, the superior court rejected the argument that administering antipsychotics could accurately be characterized as "nonintrusive and routine, ongoing" care. It was justified in doing so, but even if administration of antipsychotic drugs in nursing homes is "routine" in the sense that it is common, as several amicus briefs suggest, we find the issue to be beside the point because we do not view section 1418.8 to be limited to "routine" medical interventions.

Although we part ways with Rains in assessing the breadth of the statute, we see the context in essentially the same way that court did. The situation here is that of individuals, often elderly and poor, who have been determined by their doctors to lack the capacity to make their own medical decisions, who have no advance directive, no conservator, no surrogate decisionmaker, and no next of kin or other family or friends to speak up for them. As a premise to application of the statute, we will often know nothing about their wishes in the circumstances. Their privacy and self-determination interests,

4. This Case Is Not Governed by Wendland

At issue in Wendland was a stark, life-or-death decision about whether to withhold life support from a conscious but incapacitated patient who faced imminent death without it. ( Wendland , supra , 26 Cal.4th at pp. 523-524, 110 Cal.Rptr.2d 412 , 28 P.3d 151 .)

As framed in the Supreme Court, the issue presented was whether a conservator may "withhold artificial nutrition and hydration from a conscious conservatee who is not terminally ill, comatose, or in a persistent vegetative state, and who has not left formal instructions for health care or appointed an agent or surrogate for health care decisions." ( Wendland , supra , 26 Cal.4th at pp. 523-524, 110 Cal.Rptr.2d 412 , 28 P.3d 151 .) "Interpreting Probate Code section 2355 in light of the relevant provisions of the California Constitution" ( Wendland , at p. 524, 110 Cal.Rptr.2d 412 , 28 P.3d 151 )-the privacy clause, Article I, section 1, securing a right to refuse medical treatment, which is in turn rooted in the fundamental right of personal autonomy ( Wendland , at pp. 531-532, 110 Cal.Rptr.2d 412 , 28 P.3d 151 )-the court held that "a conservator may not withhold artificial nutrition and hydration from such a person absent clear and convincing evidence the conservator's decision is in accordance with either the conservatee's own wishes or best interest." ( Id. at p. 524, 110 Cal.Rptr.2d 412 , 28 P.3d 151 .) That burden of proof was not met, the court found, under the "dual standard" governing conservator decisionmaking under Probate Code section 2355 ( Wendland , at p. 542, 110 Cal.Rptr.2d 412 , 28 P.3d 151 ): either the "primary standard" for evaluating Rose's proposed decision (based on Robert's actual wishes) ( id. at pp. 542-552, 110 Cal.Rptr.2d 412 , 28 P.3d 151 ), or the "fallback" best interests standard (which applies in all cases where the patient's wishes cannot be determined) ( id. at pp. 552-554, 110 Cal.Rptr.2d 412 , 28 P.3d 151 ).

It seems clear why petitioners characterize the IDT determinations they seek to challenge in the eighth cause of action, in blunt terms, as "decisions

5. Section 1418.8 Covers the IDT Decisions Being Challenged in This Case

As a matter of statutory interpretation, separate from their reliance on Wendland , petitioners argue that section 1418.8 may be used only for routine, day-to-day decisions to initiate nonintrusive medical treatment, which, so they say, cannot include decisions to withhold or cease treatment. We have dealt with the first step in this line of argument already in the context of the administration of antipsychotic medications. (See part IV.G.6., ante. ) We reach the same conclusion here. The breadth of the statutory text,

Nor do we see the need for retention of continuing jurisdiction. We are satisfied that, as the Director points out in her answer to the petition for rehearing, all parties who are responsible for complying with section 1418.8, or with its enforcement-including the Director, petitioners, the nursing homes that utilize the statute, and any court called upon to resolve any pertinent dispute under the statute-will now "be well aware of and obliged to abide by or enforce the statute's requirements" as we interpret it. We also agree with the Director that our opinion together with the resulting judgment will "provide binding and clear direction" and that "nursing homes ... will risk administrative sanction, monetary liability, and other potential consequences (including license suspension or revocation, payment suspension, or other adverse actions), for any failures to comply with [ section 1418.8's] requirements."

T

he judgment is reversed and the cause is remanded to the superior court with directions to dissolve its injunction enjoining the enforcement and use of section 1418.8.

The superior court shall enter a modified judgment declaring that, to preserve the constitutionality of the statute, the court interprets section 1418.8 to require nursing homes to adopt, and the Department to enforce, the following procedural safeguards:

(1) Notice : Written and oral notice must be provided to every resident for whom section 1418.8 is invoked, of (a) any determination of the resident's incapacity; (b) any determination that no surrogate decisionmaker for the resident is available; (c) any medical intervention proposed by the attending physician; (d) the fact that a decision will be made by the IDT on a proposed medical intervention; (e) the resident's right to have a patient

California Advocates for Nursing Home Reform (CANHR), a nonprofit entity advocating for the rights of nursing home patients, together with a nursing home resident and a taxpayer (collectively, petitioners), challenged the constitutionality of section 1418.8 under the California Constitution by a petition for writ of mandate against the Director of the Department of Public Health (Department), a position now held by Dr. Karen Smith (Director).

The superior court issued an order holding section 1418.8 unconstitutional in three respects, one on its face and two as applied: It held the statute (1) on

The court entered judgment accordingly, issuing a writ of mandate that prohibited enforcement of the statute in the absence of notice to the affected resident; prohibited use of the statute to administer antipsychotics; and prohibited use of the statute in end of life decisions, subject to several exceptions, including an exception for transfer to hospice care.

Both parties appealed. The Director claims the statute is constitutional in all respects, and petitioners argue it is unconstitutional in additional particulars beyond those enjoined. Petitioners take the position, ultimately, that the statute should be declared unconstitutional in its entirety and that we should forbid its enforcement categorically, leaving the Legislature to begin again trying to solve the problem of how to provide for the medical needs of incapacitated, unbefriended nursing home residents.

We see merit to much of the superior court's analysis concluding that

Before the statute's enactment, capacity decisions were made in superior court on a petition to determine capacity to make health care decisions. ( Prob. Code, § 3200 et seq. ) "A petition may be filed to determine that a patient lacks the capacity to make a health care decision concerning specified treatment for an existing or continuing condition, and further for an order authorizing a designated person to make a health care decision on behalf of the patient." ( Prob. Code, § 3201, subd. (b).) A petition may also seek a finding by the court that the patient has such capacity. ( Id. , subds. (a), (c).)

In enacting section 1418.8, the Legislature sought to provide a decisionmaking alternative when recommended medical procedures require informed consent. (See Cobbs v. Grant (1972) 8 Cal.3d 229 , 244-245, 104 Cal.Rptr. 505 , 502 P.2d 1 [informed consent required when there is a known risk of death or serious bodily harm as a result of a recommended treatment].) As described in Rains , section 1418.8 addresses a "very difficult and perplexing problem: how to provide nonemergency but necessary and appropriate medical treatment, frequently of an ongoing nature, to nursing home patients who lack capacity to consent thereto because of incompetence, and who have no surrogate or substitute decision maker with legal authority to consent for them." ( Rains , supra , 32 Cal.App.4th at p. 166, 38 Cal.Rptr.2d 185 , fn. omitted; see id. at p. 178, 38 Cal.Rptr.2d 185 ["continuing and significant dilemma"].)

In establishing a "team" decisionmaking approach, the Legislature recognized that the existing mechanisms for court authorization of medical treatments for such patients under provisions of the Probate Code were slow and inadequate, and therefore could interfere with residents' ability to receive timely medical care: "(b) The current system is not adequate to deal with the legal, ethical, and practical issues that are involved in making health care decisions for incapacitated skilled nursing facility or intermediate care facility residents who lack surrogate decisionmakers. Existing Probate Code procedures, including public conservatorship, are inconsistently interpreted and applied, cumbersome, and sometimes unavailable for use in situations in which day-to-day medical treatment decisions must be made on an on-going basis. [¶] (c) Therefore, it is the intent of the Legislature to identify a procedure to secure, to the greatest extent possible, health care decisionmakers for skilled nursing facility or intermediate care facility residents who lack the capacity to make these decisions and who also lack a surrogate health care decisionmaker." (Stats. 1992, ch. 1303, § 1, pp. 6326-6327.) Indeed, Rains spoke of a "delay of two to six months frequently necessary to secure a ruling on a petition authorizing treatment under Probate Code section 3201." ( Rains , supra , 32 Cal.App.4th at p. 166, 38 Cal.Rptr.2d 185 .)

B. Summary of the Provisions of Section 1418.8

Under section 1418.8, if a resident's "attending physician and surgeon" determines that a resident lacks capacity to provide informed consent to a proposed treatment, and determines there is no person with legal authority to make the treatment decision on the resident's behalf, the physician is then required to inform the facility of these determinations, and an IDT must be convened to review and authorize the proposed treatment. ( § 1418.8, subds. (a) - (e).)

Section 1418.8 sets out standards by which the attending physician must determine a resident's decisionmaking capacity and the absence of any authorized surrogate decisionmaker. To make such determinations, the physician must interview the resident, review the resident's medical records, and consult with facility staff and family members and friends of the resident, if identified. ( § 1418.8, subds. (b) & (c).) A resident lacks health care decisionmaking capacity if he or she "is unable to understand the nature and consequences of the proposed medical intervention, including its risks and

Petitioner Gloria A. was a 63-year-old truck driver who ended up in a nursing home and was declared incapacitated by her treating physician upon entry into the facility. Just 20 days later, she was examined by another physician who found: "This resident has the capacity to understand and make decisions." Nevertheless, the incapacity determination remained in effect for nine months. Gloria A. never received notice of the physician's determination, of his finding that she had no surrogate to make health care decisions for her, of the treatment and restrictions he recommended, or of her right to judicial review of his decisions.

Nothing in section 1418.8 expressly requires such notice. Gloria A. learned she had been declared incapacitated only because she tried to go on a picnic with another resident and her sister, and she was not allowed to leave the facility based on her doctor's orders and his finding of

The first five causes of action were brought as facial challenges to the statute; the last three were as-applied challenges. In January 2015, the petitioners filed the operative first amended petition alleging the same causes of action, but adding Chicotel as a petitioner.

D. The Superior Court's Order and Judgment and the Issues on Appeal

In response to petitioners' motion for writ of mandate, declaratory relief, and injunction, the superior court issued its order in June 2015 granting, in part, and denying, in part, a writ of mandate, and entered judgment accordingly on January 27, 2016. The superior court ruled that section 1418.8 is facially unconstitutional under the state due process clause ( Cal. Const., art. I, § 7 ) and enjoined its use on grounds that the statute does not require adequate notification in writing to a nursing home resident regarding (1) the physician's determination of incapacity; (2) the physician's determination that there is no surrogate decisionmaker; (3) the medical intervention prescribed by the physician and the referral to the IDT for decisionmaking regarding the treatment; and (4) the availability of judicial review of any such decisions made by the physician or the IDT. The superior court did not hold such notice was required prior to an incapacity decision being made by the physician, but presumably notice would be required before the IDT made a decision on the recommended treatment. The superior court did not specify that the medical intervention could not be implemented until after the capacity decision was reviewed by the court if the resident sought judicial review, but that requirement is implicit in the " 'opportunity to be heard' " at a meaningful time and in a meaningful manner. ( Armstrong v. Manzo (1965) 380 U.S. 545 , 552, 85 S.Ct. 1187 , 14 L.Ed.2d 62 .)

The superior court also held the statute violates the patient's constitutional privacy rights when applied to decisions to withdraw life-sustaining treatment and end life. The Director argues the superior court should not even have reached this issue based on lack of state action and because the issue is not ripe and any opinion on the subject is merely advisory.

In addition to supporting the superior court's conclusions about the aspects of the statute deemed unconstitutional or unenforceable except on specified conditions, petitioners, in their cross-appeal, argue section 1418.8 is unconstitutional in the following additional ways, which were rejected by the superior court: (1) the notice required by the superior court must be given prior to the incapacity determination, with a meaningful opportunity to oppose that determination separately from or instead of the after-the-fact judicial review provided by the statute; (2) the capacity decision must be made by a judicial officer, rather than a doctor; (3) an attending physician must not be allowed to act as decisionmaker for capacity determinations (and must not be allowed to serve on the IDT) because he or she is non-neutral; (4) legal counsel or a counsel substitute must be afforded the resident as a matter of due process; and (5) the statute cannot be read as allowing the IDT to review capacity and surrogacy decisions, which leaves patients without recourse except by filing in superior court, which their poor health prevents them from doing.

Finally, the superior court's determination that section 1418.8 could not be used for end of life decisions was subject to four exceptions, each of which petitioners claim is inconsistent with the statute and the state Constitution, namely (a) decisions implementing a patient's wish to end life; (b) decisions carrying out a patient's instructions; (c) decisions to decline patient instructions for ineffective care or care contrary to generally accepted medical standards; and (d) decisions to initiate hospice care. Petitioners contend those

We agree with the superior court that, as a matter of due process, before treatment is begun a resident is entitled to a meaningful opportunity to be heard in opposition to the determinations of incapacity and unavailability of a surrogate, as well as to a recommended medical intervention. Thus, the required notice must advise the resident of the fact that determinations of incapacity and absence of a surrogate have been made, of any proposed treatment decided

C. Administration of Antipsychotic Medication

We reject petitioners' first as-applied challenge urging that section 1418.8 be voided to the extent it allows, in non-emergency circumstances, the administration of antipsychotic drugs to nursing home residents without judicial authorization. We conclude, here too as a matter of statutory construction, that section 1418.8 may be employed in making decisions relating to administration of antipsychotic medications, and that, so construed, the statute does not violate the patient's privacy or due process rights.

Section 1418.8, subdivision (h), expressly authorizes "chemical restraints"-which usually means antipsychotics-to be administered in emergency situations. We see no reason why prescriptions for use of antipsychotics for an ongoing psychosis could not also be prescribed through the IDT process in non-emergency circumstances. While we condemn the use of

Although we hold that section 1418.8 passes constitutional muster when used for some specific types of end of life decisionmaking, we emphasize what we do not hold. Because, in some circumstances, a decision to cease life-sustaining care will require the intervention of a neutral, judicial decisionmaker under either Conservatorship of Wendland (2001) 26 Cal.4th 519 , 110 Cal.Rptr.2d 412 , 28 P.3d 151 ( Wendland ) (conscious but incapacitated patients) or Conservatorship of Drabick (1988) 200 Cal.App.3d 185 , 245 Cal.Rptr. 840 ( Drabick ) (unconscious patients)-cases which involve withdrawal of life support-we anticipate that, somewhere, a line must be drawn between on the one hand cessation of curative care for a decisionally incapacitated person without a surrogate (for whom the IDT may act), and on the other hand, withdrawal of life support (for whom resort to the judicial process would be necessary). But we have no occasion to address that issue here. Drawing the appropriate line involves a myriad of medical and other circumstances that we cannot begin to predict based on the limited record before us, so we simply note this outer boundary to constitutionally proper use of the IDT process, without reaching it in this case.

A. Autonomy Privacy Protects Residents' Rights to Make Medical Decisions and Due Process Attaches to Deprivation of Those Rights

1. The Right of Autonomy Privacy

"[T]he explicit right of privacy protected under California Constitution, article I, section 1, protects two classes of privacy interests: '(1) interests in precluding the dissemination or misuse of sensitive

The question here, of course, is how the patient's will can best be learned and effectuated, and his or her rights adequately protected, when he or she lacks decisional capacity, has no advance health care directive, and the attending physician is aware of no next of kin or other person willing to serve as a legally authorized proxy decisionmaker. ( Cf. In re Conroy (1985) 98 N.J. 321 , 486 A.2d 1209 , 1219-1220.) Section 1418.8 provides a procedure for dealing with such circumstances, authorizing a treating physician to declare the patient to lack capacity to make his or her own medical decisions, and thereby to trigger convening of an IDT. ( § 1418.8, subds. (a) & (e).) Petitioners claim leaving the capacity decision in the hands of an attending physician-or any physician-violates the constitutionally-protected privacy rights of the patient. They contend a judge or judicial officer must make that decision.

2. Due Process

The right to refuse necessary medical treatment is a fundamental liberty interest protected by the due process clause of the Fourteenth Amendment ( Washington v. Harper (1990) 494 U.S. 210 , 221-222, 110 S.Ct. 1028 , 108 L.Ed.2d 178 ; Cruzan v. Director, Missouri Dept. of Health (1990) 497 U.S. 261 , 278, 110 S.Ct. 2841 , 111 L.Ed.2d 224 ; People v. Petty (2013) 213 Cal.App.4th 1410 , 1417, 154 Cal.Rptr.3d 75 ) and by the privacy guarantee of the California Constitution and the common law ( In re Qawi (2004) 32 Cal.4th 1 , 17, 7 Cal.Rptr.3d 780 , 81 P.3d 224 ( Qawi ); K.G. v. Meredith (2012) 204 Cal.App.4th 164 , 170-171, 138 Cal.Rptr.3d 645 ). Petitioners contend various aspects of section 1418.8 violate residents' due process rights under article I, section 7 of the California Constitution.

B. Rains v. Belshé (1995) 32 Cal.App.4th 157 , 38 Cal.Rptr.2d 185

In 1995, Division Five of this district was faced with a constitutional attack on section 1418.8 much like the one now before us. Rains , supra , 32 Cal.App.4th 157 , 38 Cal.Rptr.2d 185 held section 1418.8 was constitutional against a challenge

Petitioners contend Rains thereby established legal limits on the application of

1. The Superior Court's Ruling

The superior court's June 2015 order in this case observed that Rains did not deal specifically with the question of notice to the patient of the decisions on capacity and surrogacy, and it therefore concluded Rains was not controlling on that point. Rains held the statute did not violate due process, even though the incapacity decision was "without notice" to the nursing home resident. ( Rains , supra , 32 Cal.App.4th at p. 178, 38 Cal.Rptr.2d 185 .) Although the court mentioned the notice issue only in passing, notice was one of the attributes of a fair hearing that the petitioner in Rains claimed was lacking in the IDT procedure implemented by section 1418.8. ( Rains , at p. 178, 38 Cal.Rptr.2d 185 .) Because "cases are not authority for propositions not expressly considered" ( In re Marriage of Peters (1997) 52 Cal.App.4th 1487 , 1491, 61 Cal.Rptr.2d 493 ), the superior court correctly recognized that this case calls for a decision on an aspect of due process that Rains left unaddressed.

Starting from the premise that a patient's privacy right to refuse medication is not extinguished when a person resides in a nursing home ( Rains , supra , 32 Cal.App.4th at p. 171, 38 Cal.Rptr.2d 185 ; see Drabick , supra , 200 Cal.App.3d at p. 208, 245 Cal.Rptr. 840 [privacy rights survive incompetence] ), the superior court reasoned

Because the threshold determination triggering the need for an IDT requires that there be no one "with legal authority to make" health care decisions on the patient's "behalf," we understand the patient's representative designated to serve on the IDT as something different from a surrogate decisionmaker. ( § 1418.8, subd. (a).) Where a patient, although incompetent to make medical decisions, nonetheless is able to articulate coherent ideas about his or her current circumstances, it is the task of the patient representative to bring that information into the IDT's decisionmaking process. Viewed in that light, the role of the patient representative on the IDT is to take responsibility for understanding and articulating the best approximation possible of the patient's perspective. In effect, as we read the statute, the Legislature has provided for virtual representation through the IDT as a body, not actual representation through the patient representative as an agent.

It may be that, as a practical matter, the patient representative is the member of the IDT whose perspective comes the closest to being a stand-in for the patient-and perhaps is the one most likely to dissent, since it is the decision of the attending physician that is under review by the IDT. Nevertheless, we do not view the role of the patient representative as a proxy for the patient, in the sense of an advocate or an agent who takes guidance or instruction from a client or principal. The context here, a setting in which the patient cannot express his or her informed decision to anyone, makes that impossible. Where the patient's attitudes and personal background are not known, the patient representative provides, at minimum, the perspective of an individual unaffiliated with the nursing home, who can be vigilant as to when judicial intervention is required.

As the IDT member uniquely responsible for presenting the patient's perspective, the patient representative's role on the IDT is essential. Despite the crucial function performed by the patient representative, the statutory language "where practicable" ( § 1418.8, subd. (e) )-if given a broad reading-would severely undervalue the right to have such a person involved in the IDT's decisionmaking process. We consider it necessary to have a patient representative participate on every IDT as

As we view the statute, there is an opportunity to be heard in court upon a petition under Probate Code section 3201 if the collaborative model of decisionmaking results in deadlock (i.e., if anyone on the IDT disagrees with the incapacity or lack of surrogacy determinations or the proposed treatment). Petitioners point out that, for incapacitated persons, providing for a remedy in superior court is unrealistic and impractical due to their physical and mental health challenges. Because individuals other than the patient may initiate such proceedings ( Prob. Code, § 3203 ), and because the procedure employed on judicial review would include appointment of counsel for the resident ( Prob. Code, § 3205 ), we see no lack of due process in the procedure provided, so long as the implementation of the proposed treatment is delayed until after any judicial challenge has been decided (with the exception of cases of emergency).

The opportunity to be heard must be provided at a meaningful time and in a meaningful manner. ( Goldberg v. Kelly , supra , 397 U.S. at p. 267, 90 S.Ct. 1011 ; Armstrong v. Manzo , supra , 380 U.S. at p. 552, 85 S.Ct. 1187 .) Unless implementation of the physician's recommended treatment is postponed until after a collaborative decision has been made by the IDT or judicial review has been completed, the medical procedure may have already been completed before the patient may realistically oppose the incapacity determination and the proposed medical intervention in court. This is why we conclude that, except in emergencies, to give nursing home residents a meaningful opportunity to be heard, the IDT's decision on implementing treatment must be postponed until after notice has been given, and the treatment may not begin until

The Mentally Disordered Offender Act requires that offenders who have been convicted of violent crimes related to their mental disorders, and who continue to pose a danger to society, receive mental health treatment during and after termination of their parole until their mental disorder can be kept in remission. ( Pen. Code, § 2960 et seq. ) Qawi addressed whether the petitioner, an MDO who had finished his period of parole, could refuse antipsychotic medication for his mental disorder despite the statute authorizing continued medication. ( Qawi , supra , 32 Cal.4th at pp. 9, 11, 7 Cal.Rptr.3d 780 , 81 P.3d 224 .) In the MDO Act, the Legislature specifically provided that MDOs who have completed their term of parole retain the same rights granted to mentally ill patients that have been involuntarily civilly committed under the Lanterman-Petris-Short Act (LPS Act), found in Welfare and Institutions Code section 5000 et seq. (See Pen. Code, § 2972, subd. (g).)

Petitioners base their argument in large part on three sentences from Qawi , supra , 32 Cal.4th 1 , 7 Cal.Rptr.3d 780 , 81 P.3d 224 : " ' "Competence is not a clinical, medical, or psychiatric concept. It does not derive from our understanding of health, sickness, treatment, or persons as patients. Rather, it relates to the world of law, to society's interest in deciding whether an individual should have certain rights (and obligations) relating to person, property and relationships." ' " ( Id. at p. 17, 7 Cal.Rptr.3d 780 , 81 P.3d 224 , quoting Riese v. St. Mary's Hospital & Medical Center , supra , 209 Cal.App.3d at p. 1321, 271 Cal.Rptr. 199 .) From this premise, petitioners argue the statute's placement of the decisionmaking about capacity with doctors rather than judicial officers deprives nursing home residents of their constitutionally-protected rights to make their own medical decisions.

We view the decision on incapacity as involving both medical and legal aspects: the decision on competency entails legal consequences and therefore may be considered primarily legal-as Qawi found-but it undeniably has a medical aspect as well. A person may become incompetent by reasons best

If the decision is to be made by someone other than a judicial officer, petitioners argue, it must at least be someone uninvolved in the treatment of the resident. They rely in part on Washington v. Harper , supra , 494 U.S. 210 , 110 S.Ct. 1028 , where the United States Supreme Court found a state prison inmate's federal due process rights were not violated, even though he was forcibly medicated, because an independent medical board determined he was a danger to himself and others and the treatment was in his medical interest. ( Id. at p. 229, 110 S.Ct. 1028 .)

In Washington v. Harper , supra , 494 U.S. 210 , 110 S.Ct. 1028 , under the institution's policy, before administration of antipsychotic drugs could begin, an inmate who refused such medication was entitled to a hearing before a special committee consisting of a psychiatrist, a psychologist, and the associate superintendent of the institution, none of whom could be, at the time of the hearing, involved in the inmate's treatment or diagnosis. ( Id. at p. 215, 110 S.Ct. 1028 .) The policy also provided for notice, the right to be present at an adversary hearing, and the right to present and cross-examine witnesses. ( Id. at p. 216, 110 S.Ct. 1028 .) If the committee determined by a majority vote that the inmate suffered from a mental disorder and was gravely disabled or dangerous, the inmate could be medicated against his will, provided the psychiatrist was in the majority. ( Id. at pp. 215-216, 110 S.Ct. 1028 .) The Supreme Court found the provision of a neutral decisionmaking board significant in upholding the constitutionality of the prison's procedure. ( Id. at pp. 233-235, 110 S.Ct. 1028 .)

Section 1418.8 does not provide for the same kind of independent decisionmaker,

3. Petitioners' Argument that an Attending Physician Should Not Sit on the IDT

For the same reasons they contend an attending physician is non-neutral and cannot be a decisionmaker on capacity, petitioners argue that an attending physician should not be allowed to participate in reviewing his or her own recommended medical intervention in his or her own patient's case as a participant on an IDT. We reject this variation of petitioners' physician bias argument for the reasons just stated.

4. Determination of Existence of Surrogate Decisionmaker

Whether a surrogate exists for the resident is a purely factual question that can be answered through a legal proof process, or an investigative one, which in our view could be conducted and determined by medical personnel or by legal personnel. With statutory guidance on how to conduct a fair and thorough investigation aimed at identifying a surrogate decisionmaker ( § 1418.8, subd. (c) ), treating physicians may be entrusted with making a determination following such an investigation. Our state Constitution offers no impediment on this ground, and the IDT process offers a meaningful review, followed by judicial review if the patient or his or her representative continues to resist a finding of no surrogate.

Seeking a procedure more protective of patients' rights, petitioners suggest (1) the prescribing physician must not be allowed to participate on the IDT, (2) a patient should be provided with counsel or a counsel substitute in the determination of incapacity, and (3) the IDT is not allowed to review capacity and surrogacy decisions. Petitioners thereby attempt to engraft onto the statute an adversarial process, presided over by a judge, with two sides, each represented by counsel, taking opposing positions and entrusting resolution of their disagreement to a neutral judicial officer.

We have already rejected petitioners' first argument for the reasons stated in parts IV.E.2 & IV.E.3., ante. Petitioners' third point we resolve by holding that an IDT does have the authority to review an attending physician's capacity and surrogacy decisions. Given the requirement that it review medical interventions quarterly ( § 1418.8, subd. (g) ) and the fact that capacity fluctuates, the IDT presumably will revisit the incapacity determination at the time of its quarterly reviews. The Director presented evidence that the statute has been construed to allow the IDT that power, and we adopt that interpretation as consistent with, though not compelled by, the statutory language. We find no due process violation in the Legislature's choice to provide nursing home residents with an informal, collaborative decisionmaking process for determining medication needs.

Nor are we persuaded that nursing home residents facing an incapacity determination must be provided with some form of legal representation. Here again petitioners presuppose that a resident perceived to lack decisional capacity must have input before the capacity determination is made. We have determined that notice after the determination, coupled with the availability of judicial review, satisfies due process. If the resident or someone on his or her behalf ( Prob. Code, § 3203 ) were to challenge the incapacity determination through a petition under Probate Code section 3201, counsel would be appointed at that stage. ( Prob. Code, § 3205.)

The Director and her amici point out the broad purposes of section 1418.8, namely to "secure, to the greatest extent possible, health care decisionmakers" for unrepresented residents lacking decisionmaking capacity "to ensure that the medical needs of nursing facility residents are met even in the absence of a surrogate health care decisionmaker." (Stats. 1992, ch. 1303, § 1(c), p. 6327.) They claim the protections

Studies have shown that residents of nursing homes tend to be overmedicated with antipsychotics. (E.g., Alice F. Bonner, Rationales That Providers and Family Members Cited for the Use of Antipsychotic Medications in Nursing Home Residents with Dementia (2015) 63 J. Am. Geriatrics Soc'y. 302, 302; Jan Goodwin, Antipsychotics Overprescribed in Nursing Homes , AARP BULLETIN (July/Aug. 2014) < https://www.aarp.org/health/drugs-supplements/info-2014/antipsychotics-overprescribed.html> [as of July 22, 2019].) This is a special concern not only because of the severe side effects ordinarily associated with these drugs, but because the effects are much more detrimental in elderly patients (Prakash S. Masand, Side Effects of Antipsychotics in the Elderly (2000) 61 J. Clinical Psychiatry 43, 43), and those over age 65 make up nearly 85 percent of the population in nursing homes nationwide. (< https://www.cdc.gov/nchs/data/series/sr_03/sr03_038.pdf>, p. 35 [as of July 22, 2019].)

The Director argues, however, that such problems have been recognized and addressed, and abuse of antipsychotics in nursing homes has sharply declined in recent years. Current data indicate that as of

The Director assures us the Department, too, is concerned about overuse of antipsychotic drugs in nursing homes. She nevertheless appeals the superior court's order requiring judicial approval of such prescriptions, arguing (1) the legislative history of section 1418.8 shows it was intended to allow the IDT procedure for prescription of antipsychotics; (2) no restrictions on such use of the statute are mentioned in the statute itself; and (3) due to efforts by the Department and other agencies over the past few years, prescriptions of antipsychotics in nursing homes have declined by more than 48 percent in California. (See part IV.G.2, ante. ) The Department argues that without availability of the IDT procedure, patients who need antipsychotics will not get them in a timely manner and will suffer distress and possibly transfer to an acute care or psychiatric facility as a result. The Department has never condoned or encouraged the abuse of antipsychotics in nursing homes, so far as we can tell from the record.

4. The Legal Background

Rains did not discuss the administration of antipsychotic drugs to nursing home patients found incompetent under section 1418.8. The only inferential reference to antipsychotic drugs in section 1418.8 itself is the authorization of "chemical restraints" in an emergency, without a prior IDT determination to administer such restraints. ( § 1418.8, subd. (h) ; Rains , supra , 32 Cal.App.4th at p. 186, 38 Cal.Rptr.2d 185 .) If such "chemical restraints" are used, an IDT must be convened within one week thereafter to evaluate that use. ( § 1418.8, subd. (h).) Petitioners argue that the IDT process cannot be used to prescribe antipsychotics due to the statute's lack of procedural safeguards required as a matter of due process. They rely on a handful of cases concerned with forcible administration of antipsychotics in settings distinct from that of the nursing homes with which we deal.

We are convinced that context matters, and the same procedures employed in prison settings need not be employed in nursing homes, not because nursing home residents are less worthy of protection (obviously they are not),

Qawi also found procedures used for prescribing antipsychotic drugs to MDOs were insufficient to protect their rights, but again, it made the ruling as a matter of statutory construction, not constitutional analysis. ( Qawi , supra , 32 Cal.4th at pp. 24-25, 7 Cal.Rptr.3d 780 , 81 P.3d 224 .) Washington v. Harper examined an institution's procedure for prescribing antipsychotics to prisoners and found it met constitutional requirements. (See parts IV.E.1 & IV.F, ante. ) It did not thereby establish

Rains relied on language in the preamble to section 1418.8 suggesting it was required to make sure nursing homes could secure substituted consent to meet their patients' medical needs, including "day-to-day medical treatment decisions ... on an on-going basis," which were difficult to secure using the pre-existing legal methods. (Stats. 1992, ch. 1303, § 1(b), p. 6327.) The preamble, by our reading, does not limit section 1418.8's application to those "day-to-day" decisions, however. Although the conception of

6. As a Matter of Due Process, Residents are Entitled to No Greater Rights in the Prescription of Antipsychotic Medications than in Any Other Prescription

We see no textual reason for excepting antipsychotic medications from the procedure established in section 1418.8, and no mode of constitutional analysis requires us to read it that way. The same due process safeguards found to be required in the inherently coercive context of involuntary commitments are not required here. ( Rains , supra , 32 Cal.App. 4th at pp. 186-187, 38 Cal.Rptr.2d 185 .) For incapacitated nursing home residents section 1418.8 provides an approximation of informed consent, while for prisoners and MDOs informed consent is disregarded altogether. A higher level of due process scrutiny is self-evidently necessary in that setting. We must examine section 1418.8 as it comes to

Rose Wendland, Robert's wife and conservator, authorized a series of surgeries to replace dislodged feeding tubes, but when asked to do so on a fourth occasion, declined to approve it. ( Wendland , supra , 26 Cal.4th at pp. 525-526, 110 Cal.Rptr.2d 412 , 28 P.3d 151 .) Robert's treating physician inserted a temporary tube pending decision from the hospital ethics committee, and that committee ultimately supported Rose's decision. ( Id. at p. 526, 110 Cal.Rptr.2d 412 , 28 P.3d 151 .) The case arose when Robert's mother and sister objected to Rose's instruction to the medical team that they remove his temporary feeding tube and let him die. ( Id. at p. 524, 110 Cal.Rptr.2d 412 , 28 P.3d 151 .) Because there was an objection, Rose sought approval for her proposed decision from the

We are unpersuaded Wendland is controlling here. That case, at its core, turns on " 'the "gravity of the consequences that would result from an erroneous determination of" ' " a decision to remove a conscious but impaired patient from life support. ( Wendland, supra , 26 Cal.4th at p. 546, 110 Cal.Rptr.2d 412 , 28 P.3d 151 .) By contrast to situations where there is " 'the potential that a wrong decision will eventually be corrected or its impact mitigated[,] [a]n erroneous decision to withdraw life-sustaining

As for the second step in petitioners' statutory interpretation argument-that the statute allows affirmative decisions to initiate treatment, but not decisions to withhold or cease treatment-the logic is strained, and we reject it. Drabick, supra , 200 Cal.App.3d 185 , 245 Cal.Rptr. 840 , declined to adopt a similarly circumscribed construction of Probate Code section 2355 in a conservatorship case, holding that, "by necessary implication, [it] gives the conservator power to withhold or withdraw consent to medical treatment under appropriate circumstances. Probate Code section 2355 contemplates that the conservator faced with a decision about medical care will exercise his judgment.... Following this process, the conservator may consent to treatment. Just as importantly, however, the conservator may also withhold consent. Unless Probate Code section 2355 is read to include that correlative power, the statute would simply-and absurdly-require the conservator to approve blindly all medical recommendations. This cannot be what the Legislature intended, since to deny conservators the power to withhold consent would render meaningless the statutory references to a decisional process." ( Id. at pp. 200-201, 245 Cal.Rptr. 840 .) The same reasoning applies here.

We close with another apt observation from Drabick , one that we think sums up well, in a general way, the importance of upholding section 1418.8 in application, and doing so in a way that it respects the constitutionally protected rights of nursing

What we hold here, as explained above, is that rather than enjoining the use and enforcement of section 1418.8 on constitutional grounds, the appropriate remedial course was to adopt a saving construction of the statute by declaration. Not only is this remedial approach, in our view, more consistent with avoiding invalidation of statutes on constitutional grounds where reasonably possible, but it is also significant that we deal here with matters of administrative enforcement. Because "[m]andamus will not lie to control an exercise of discretion, i.e., to compel an official to exercise discretion in a particular manner" ( California Hospital Assn. v. Maxwell-Jolly (2010) 188 Cal.App.4th 559 , 570, 115 Cal.Rptr.3d 572 ), we are reluctant to prescribe any particular approach to conformance with the judgment.

Concerned about enforceability, petitioners argue on petition for rehearing that "mandamus against a public officer is a more adequate remedy than declaratory relief, because it commands performance, while a declaratory judgment simply pronounces the duty to perform ...." ( Berkeley Sch. Dist. v. City of Berkeley (1956) 141 Cal.App.2d 841 , 845, 297 P.2d 710 .) They contend that "[h]ow the judgment is implemented and enforced on remand will affect whether the procedural protections, which are so important to saving the statute from unconstitutionality, will be abstract aspirations or will actually benefit the 12,000 patients in need of these protections." And they request that we direct the superior court to retain jurisdiction to monitor the Director's implementation of the judgment.

We do not agree that the issuance of a writ is appropriate or necessary. To obtain a writ of mandate under

(2) Opportunity to be Heard : Except in emergency circumstances, no medical treatment decision by an IDT on behalf of a resident may be implemented until (a) after notice of the decision has been provided to the resident and (b) the resident has been given a reasonable opportunity to seek judicial review of the decision under section 1418.8, subdivision (j).

(3) Composition of IDT : Except in emergency circumstances, (a) every IDT must include a patient representative, and (b) where the resident has no family or friend willing to serve on the IDT, someone unaffiliated with the nursing home must be found to serve as the patient representative.

In addition, the superior court's modified judgment shall declare that the IDT process may be used (1) to authorize the administration of antipsychotic medications in nursing homes to the extent authorized by state and federal law, and (2) for decisions to create or make a change to POLSTs, DNRs or comfort care orders, and to transfer patients to hospice care.

The parties shall bear their own costs on appeal.

We concur:

POLLAK, P. J.

TUCHER, J.