Today's Law As Amended

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SB-481 Long-term health facilities: informed consent.(2017-2018)



SECTION 1.

 Section 1418.8 of the Health and Safety Code is amended to read:

1418.8.
 (a) If the attending physician and surgeon  of a resident in a skilled nursing facility or intermediate care facility prescribes or orders a medical intervention that requires that informed consent be obtained prior to administration of the medical intervention, but is unable to obtain informed consent because the physician and surgeon  determines that the resident lacks capacity to make decisions concerning his or her health care and that there is no person with legal authority able and willing  to make those decisions on behalf of the resident, the physician and surgeon  shall inform the skilled nursing facility or intermediate care facility.
(b) For purposes of subdivision (a), a resident lacks capacity to make a decision regarding his or her health care if the resident is unable to understand the nature and consequences of the proposed medical intervention, including its risks and benefits, or is unable to express a preference regarding the intervention. To make the determination regarding capacity, the physician shall interview the patient, resident,  review the patient’s resident’s  medical records, and consult with skilled nursing facility  or intermediate care facility staff, as appropriate, and family members and friends of the resident, if any have been identified.
(c) For purposes of subdivision (a), a person with legal authority to make medical treatment decisions on behalf of a patient resident  is a person designated under a valid Durable Power of Attorney for Health Care,  pursuant to Division 4.7 of the Probate Code,  a guardian, a conservator, or next of kin. To determine the existence of a person with legal authority, the physician shall interview the patient, resident,  review the medical records of the patient, resident,  and consult with skilled nursing facility  or intermediate care facility staff, as appropriate, and with family members and friends of the resident, if any have been identified.
(d) The attending physician and the skilled nursing facility or intermediate care facility may initiate a medical intervention that requires informed consent pursuant to subdivision (e) in accordance with acceptable standards of practice. Before implementing a health care decision about a medical intervention that requires informed consent, if the resident lacks capacity to make health care decisions and there is no person with legal authority able and willing to make those decisions on behalf of the resident, the physician, skilled nursing facility, or intermediate care facility shall promptly communicate to the resident, orally and in writing, the following information: 
(1) The resident’s attending physician has determined that the resident lacks capacity to make health care decisions.
(2) The facility has been unable to locate a person with legal authority to make medical treatment decisions on behalf of the resident pursuant to Division 4.7 of the Probate Code, a guardian, conservator, or next of kin who is able and willing to make health care decisions on behalf of the resident.
(3) The medical intervention recommended or prescribed that requires informed consent and the identity of the person recommending or prescribing the medical intervention.
(4) The interdisciplinary team will review or has reviewed the physician’s determinations, and will continue to oversee any additional recommended or prescribed interventions unless or until a person with legal authority able and willing to make health care decisions on behalf of the resident is identified, or the attending physician or a court determines that the resident has regained the capacity to make health care decisions.
(5) The right of the resident to challenge the determinations made pursuant to this section, in a judicial proceeding.
(e) Where If  a resident of a skilled nursing facility or intermediate care facility has been prescribed a medical intervention by a physician and surgeon  that requires informed consent and the physician has determined that the resident lacks capacity to make health care decisions and there is no person with legal authority able and willing  to make those decisions on behalf of the resident, the facility shall, except as provided in subdivision (h), conduct an interdisciplinary team review of the prescribed medical intervention prior to the administration of the medical intervention. The interdisciplinary team shall oversee the care of the resident utilizing a team approach to assessment and care planning, and shall include the resident’s attending physician, a registered professional nurse with responsibility for the resident, other appropriate staff in disciplines as determined by the resident’s needs, and, where if  practicable, a patient resident  representative, in accordance with applicable federal and state requirements. The review shall include all of the following:
(1) A review of the physician’s assessment of the resident’s condition.
(2) The reason for the proposed use of the medical intervention.
(3) A discussion of the desires of the patient, where resident, if  known. To determine the desires of the resident, the interdisciplinary team shall interview the patient, resident,  review the patient’s resident’s  medical records, and consult with family members or friends, if any have been identified.
(4) The type of medical intervention to be used in the resident’s care, including its probable frequency and duration.
(5) The probable impact on the resident’s condition, with and without the use of the medical intervention.
(6) Reasonable alternative medical interventions considered or utilized and reasons for their discontinuance or inappropriateness.
(f) A patient resident  representative may include a family member or friend of the resident who is unable to take full responsibility for the health care decisions of the resident, but who has agreed to serve on the interdisciplinary team, or other person authorized by state or federal law.
(g) The interdisciplinary team shall periodically evaluate the use of the prescribed medical intervention at least quarterly or upon a significant change in the resident’s medical condition.
(h) In case of an emergency, after obtaining a physician and surgeon’s order  physician’s order under subdivision (a),  as necessary, a skilled nursing facility  or intermediate care facility may administer a medical intervention that requires informed consent prior to the facility convening an interdisciplinary team review. If the emergency results in the application of physical or chemical restraints, the interdisciplinary team shall meet within one week of the emergency for an evaluation of the medical intervention.
(i) Physicians and surgeons and  Physicians,  skilled nursing facilities facilities,  and intermediate care facilities shall not be required to obtain a court order pursuant to Section 3201 of the Probate Code prior to administering a medical intervention which that  requires informed consent if the requirements of this section are met.
(j) Nothing in this section shall in any way affect the right of a resident of a skilled nursing facility or intermediate care facility for whom medical intervention has been prescribed, ordered, or administered pursuant to this section to seek appropriate judicial relief to review the decision to provide the medical intervention.
(k) No physician or other health care provider, whose action under this section is in accordance with reasonable medical standards, is subject to administrative sanction if the physician or health care provider believes in good faith that the action is consistent with this section and the desires of the resident, or if unknown, the best interests of the resident.
(l) The determinations required to be made pursuant to subdivisions (a), (e), and (g), and the basis for those determinations shall be documented in the patient’s resident’s  medical record and shall be made available to the patient’s resident’s  representative for review.