Cal. Advocates for Nursing Home Reform v. Smith
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Opinion
STREETER, J.
Health and Safety Code section 1418.8 ( section 1418.8 ) sets forth procedures to be followed for nursing home residents who lack capacity to make their own health care decisions. Most of the affected residents are elderly, many are poor, and all may be described as "unbefriended" in the sense they are without family members, friends or other legal surrogates to make health care decisions for them. The statute requires an interdisciplinary team (IDT) approach to decisionmaking for these residents.
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 *850its face, violates due process under the California Constitution by failing to require notice to residents of a physician's predicate determinations that the patient lacks capacity, has no surrogate decisionmaker, needs a recommended medical intervention, and has a right to judicial review; (2) was never intended to authorize IDT decisionmaking for administration of antipsychotic medication, and it violates due process, as applied, when used to authorize such drugs; and (3) violates the patient's privacy rights and is unconstitutional as applied to decisions regarding end of life withdrawal of care.
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 *645section 1418.8 is constitutionally deficient, but agree with enough of the Director's position to convince us that the proper course is to construe the statute to uphold its constitutionality rather than enjoin its enforcement and use. We shall therefore reverse and remand with directions to enter a modified judgment requiring nursing homes utilizing section 1418.8 to adopt and adhere to additional procedures we have concluded are necessary to preserve its constitutionality.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. History and Purpose of Section 1418.8
When it was enacted in 1992, section 1418.8 was intended to give skilled nursing facilities and intermediate care facilities1 a means of decisionmaking *851for incapacitated residents without someone "with legal authority to make" health care decisions on his or her "behalf" ( § 1418.8, subd. (a) ), 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.) A decision by Division Five of this district, which we will discuss in detail below, also observed that section 1418.8 "applies only to the relatively nonintrusive and routine, ongoing medical intervention[.]" ( Rains v. Belshé (1995)
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)
*646To address this "legal conundrum of long standing" ( Rains , supra , 32 Cal.App.4th at p. 166,
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STREETER, J.
Health and Safety Code section 1418.8 ( section 1418.8 ) sets forth procedures to be followed for nursing home residents who lack capacity to make their own health care decisions. Most of the affected residents are elderly, many are poor, and all may be described as "unbefriended" in the sense they are without family members, friends or other legal surrogates to make health care decisions for them. The statute requires an interdisciplinary team (IDT) approach to decisionmaking for these residents.
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 *850its face, violates due process under the California Constitution by failing to require notice to residents of a physician's predicate determinations that the patient lacks capacity, has no surrogate decisionmaker, needs a recommended medical intervention, and has a right to judicial review; (2) was never intended to authorize IDT decisionmaking for administration of antipsychotic medication, and it violates due process, as applied, when used to authorize such drugs; and (3) violates the patient's privacy rights and is unconstitutional as applied to decisions regarding end of life withdrawal of care.
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 *645section 1418.8 is constitutionally deficient, but agree with enough of the Director's position to convince us that the proper course is to construe the statute to uphold its constitutionality rather than enjoin its enforcement and use. We shall therefore reverse and remand with directions to enter a modified judgment requiring nursing homes utilizing section 1418.8 to adopt and adhere to additional procedures we have concluded are necessary to preserve its constitutionality.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. History and Purpose of Section 1418.8
When it was enacted in 1992, section 1418.8 was intended to give skilled nursing facilities and intermediate care facilities1 a means of decisionmaking *851for incapacitated residents without someone "with legal authority to make" health care decisions on his or her "behalf" ( § 1418.8, subd. (a) ), 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.) A decision by Division Five of this district, which we will discuss in detail below, also observed that section 1418.8 "applies only to the relatively nonintrusive and routine, ongoing medical intervention[.]" ( Rains v. Belshé (1995)
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)
*646To address this "legal conundrum of long standing" ( Rains , supra , 32 Cal.App.4th at p. 166,
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,
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 *853benefits, or is unable to express a preference regarding the intervention." (Id. , subd. (b); see also Prob. Code, § 4609.) The absence of any person with legal authority to make treatment decisions on a resident's behalf may be *647found if there is no "person designated under a valid Durable Power of Attorney for Health Care, a guardian, a conservator," or any "next of kin" ( § 1418.8, subd. (c) ) available and willing to "take full responsibility" for such decisions. (Id. , subd. (f).) The physician's determinations regarding incapacity and the lack of a surrogate decisionmaker, and the "basis for those determinations," must be documented in the resident's medical record. (Id. , subd. (l ).)
An IDT at the facility must then "conduct [a] ... review of the prescribed medical intervention prior to the administration of the medical intervention." ( § 1418.8, subd. (e).) The IDT must 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 practicable, a patient representative." (Ibid. ) We note, however, the only required participants are the attending physician (who is often the medical director of the nursing home) and a nurse (employed by the nursing home). (Ibid. ) The patient representative may be a "family member or friend of the resident who is unable to take full responsibility for the health care decisions of the resident," or any "other person authorized by state or federal law."2 ( § 1418.8, subd. (f).) The medical records documenting the attending physician's determinations that the resident lacks capacity to provide informed consent and lacks a surrogate decisionmaker must be made available to the patient representative, if the resident has one. (Id. , subd. (l ).) There is no requirement that the same records be made available to the resident. For patients without a representative, as is often the case, no one receives the information intended for the resident.
*854The IDT, in reviewing a proposed treatment decision, must consider each of the following: (1) The "physician's assessment of the resident's condition"; (2) "The reason for the proposed use of the medical intervention"; (3) The "desires of the resident," based on a patient interview, medical records review, and consultation with any identified family or friends; (4) The "type of medical intervention to be used in the resident's care"; (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." ( § 1418.8, subd. (e)(1)-(6).) Any treatment initiated pursuant to section 1418.8 must be done "in accordance with acceptable standards of practice." (Id. , subd. (d).) The IDT must reevaluate the treatment "at least quarterly or upon a *648significant change in the resident's medical condition." (Id. , subd. (g).) Though the statute makes no mention of the IDT reviewing capacity determinations, the Department presented evidence that IDT's can and do review capacity determinations made by attending physicians. Petitioners argue section 1418.8 does not authorize such in-house review of capacity and surrogacy decisions, and they claim the superior court erred in adopting the Department's interpretation that the statute allows the IDT to review those predicate decisions.
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,
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 *855long-term care consumers. Through direct advocacy, community education, legislation and litigation, CANHR has sought to educate and support nursing home residents and their advocates regarding their legal rights and remedies and to create a united voice for long-term care reform and humane alternatives to institutionalization. The superior court found CANHR had public interest standing to pursue the causes of action raised in this case, and we agree. ( Save the Plastic Bag Coalition v. City of Manhattan Beach (2011)
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 *649incapacity. Gloria A. believed she was competent and was told by her social worker she was competent. Gloria A. was later given antipsychotic medication, though she hated it and never consented to it, at the decision of an IDT. Because of her supposed incapacity, she also lost control over her finances. Gloria A. died four months after the petition was filed in superior court.
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)
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 *856absence of enforcement as to the purported statutory requirement of a patient representative at the review and for the patient representative to consent to the treatment; (7) the need for full due process rights in applying the statute to administer antipsychotic drugs; and (8) the need for full due process rights in applying the statute to withdraw treatment and cause death.
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)
*650The Director insists the due process clause of the state Constitution does not require such notice to be embedded in the statute, in part because other statutes and regulations, both state and federal, virtually ensure the patient will be notified of the matters specified by the superior court. Petitioners, on the other hand, claim the superior court did not go far enough; they contend in their cross-appeal that notice should be required before an incapacity decision is made. The Director suggests, even if we find the statute constitutionally wanting, we should not declare it unenforceable, but rather should read into it a notice requirement.
*857The superior court also held that section 1418.8, as applied, violates residents' state constitutional autonomy privacy rights without due process insofar as it has been used to authorize administration of antipsychotic medications without notice and an opportunity to be heard, and without a judicial determination of incapacity or any form of review by a neutral decisionmaker. Petitioners presented evidence, amplified by their supporting amici curiae, suggesting that antipsychotics are administered to nursing home residents for off-label use far too often, not to treat patients' mental health problems, but to make patients more compliant. To avoid an interpretation that it deemed unconstitutional, the superior court held the statute was never meant to apply and does not apply to the administration of antipsychotics. The Director contends the statute is not constitutionally infirm, and claims its text and legislative history support its application to the administration of antipsychotic drugs.
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 *858exceptions are too expansive and unconstitutionally undermine the superior court's *651broader conclusion that section 1418.8 may not be used for end of life decisions. The court granted the requested writ of mandate in part, conditionally enjoining the enforcement of section 1418.8. (See Judgment filed January 27, 2016, § I, ¶ 1 (A) ["the use of Health and Safety Code section 1418.8 is prohibited to the extent that said section does not require the resident be adequately notified in writing"];
The judgment has been stayed pending this appeal. In addition to the parties' briefing, we have received amicus curiae briefs from various organizations supporting the positions of either petitioners or the Department.3 We shall discuss the points raised by those briefs as we deem them relevant to our decision.
III. SUMMARY OF CONCLUSIONS
A. Notice and Opportunity to be Heard
Employing independent review, we conclude, as did the superior court, that the statute would be unconstitutional on its face under the due process clause of article I, section 7 of the California Constitution if it failed to require notice to the nursing home resident that he or she has been found to lack decisionmaking capacity and that a surrogate decisionmaker is unavailable-the two findings which serve to take decisionmaking authority out of the hands of the resident-before a recommended medical intervention may be initiated. But to preserve section 1418.8's constitutionality, we construe the statute to require such notice rather than prohibit its enforcement, as the superior court did. We also conclude that the requisite notice *859may be given immediately after the incapacity and lack-of-surrogacy determinations are made but must be given before a recommended medical intervention may be initiated. The notice must be given both orally and in writing to ensure its effectiveness, and the written notice must be given not only to the affected nursing home resident but to at least one other competent person whose interests are aligned with those of the resident.
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 *652upon by the IDT, and of his or her right to seek judicial review. The statute already provides for judicial review ( § 1418.8, subd. (j) ), which allows for a neutral judge's decision, representation by counsel ( Prob. Code, § 3205 ), and a full evidentiary hearing for those patients aggrieved by the incapacity or lack-of-surrogacy decisions or who object to the treatment recommendation. Because medical urgency may not allow for judicial review before a treatment decision must be undertaken, we conclude, in those exigent circumstances-so long as pretreatment notice is given-the statute complies with minimal due process demands by giving the patient an opportunity to be heard during the IDT process itself. The full accoutrements of judicial process, with a right to counsel, are not constitutionally mandated.
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 *860resident determined to be decisionally incapacitated and without a surrogate decisionmaker under section 1418.8, subdivision (a). We view the role of the patient representative as so crucial to the functioning and constitutionality of the statute that if the patient has no family or friends willing to serve on the IDT, the nursing home must find another person unaffiliated with the nursing home to serve as patient representative for each person subject to the IDT decisionmaking procedure. Only in the case of an urgent medical emergency may an IDT act without the patient representative's participation.
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 *653antipsychotics for purposes of ongoing patient control, which we are told has been a problem in the past in nursing homes, we believe the Department's strict enforcement of the network of federal and state statutes and regulations constraining the prescription of such drugs in nursing homes is sufficient to prevent continuing abuse. If the Department is failing to carry out its enforcement obligations in policing the use of antipsychotic medications by nursing homes, that is a matter which should be addressed in a case presenting the issue for decision on an appropriate record. We do not have such a record here.
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 *861use of the IDT decisionmaking process for these kinds of end of life decisions adequately safeguards the constitutionally protected right of an incapacitated nursing home resident to refuse medical treatment. The superior court appears to have recognized as much, building into the injunction four exceptions designed to cover various aspects of end of life decisionmaking. Because we conclude there is no constitutional infirmity with the use of section 1418.8 for the specific kinds of end of life decisionmaking presented on this record, we have no occasion to address the need for any of these exceptions or whether it is even appropriate to characterize them as exceptions.
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)
IV. DISCUSSION
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 *654and confidential information ("informational privacy"); and (2) interests in making intimate personal decisions or conducting personal activities without observation, intrusion, or interference ("autonomy privacy").' ( Hill v. National Collegiate Athletic Assn. (1994)
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)
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)
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 ,
Though Rains held section 1418.8 was not unconstitutional under the due process clause of the state or federal Constitution, it so held on the basis that (1) due process does not require that capacity and surrogacy decisions be made by judges ( Rains , supra , 32 Cal.App.4th at p. 184,
As we shall discuss, petitioners contend the Supreme Court's intervening decision in Qawi , supra ,
Significantly, the panel deciding Rains relied on an interpretation that section 1418.8 "by its own terms applies only to the relatively nonintrusive and routine, ongoing medical intervention, which may be afforded by physicians in nursing homes; it does not purport to grant blanket authority for more severe medical interventions such as medically necessary, one-time *864procedures which would be carried out at a hospital or other acute care facility, as to which compliance with Probate Code section 3200 et seq. would still be required, except in emergency situations." ( Rains , supra , 32 Cal.App.4th at p. 186,
Petitioners contend Rains thereby established legal limits on the application of *656the IDT procedure, but, on the record they have produced, they have shown the law is presently being extended far beyond those limits. Short of life-ending decisions covered by Wendland, supra ,
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)
*865D. Facial Challenge: The Due Process Requirement of Notice and an Opportunity to be Heard
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,
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,
The surpassing importance of the individual rights at stake, the individual's dignity interests, the complete elimination of the patient's actual participation in the process, the risk of erroneous deprivation, and the minimal fiscal and administrative burden of notifying patients led the trial court to hold that *866section 1418.8, on its face, "violates a patient's due process rights by failing to provide for adequate notice [of four specific items of information:] [1] the determination of incapacity, [2] the determination of the absence of a legal substitute decision maker, [3] the prescribed medical intervention and [4] the right to seek review under section 1418.8(j)." Without adequate notice in each of these four areas, the court concluded, the patient will have no meaningful opportunity to oppose decisions made by the IDT.6
The Director attacks this conclusion as unfounded, claiming that a denial of due process cannot be asserted under California Constitution, article I, section 7, unless the right of which the complainant claims to have been deprived is one protected by statute or by the constitution. She further argues due process protections attach only where an adjudicatory hearing is provided by statute. Besides, the Director suggests, the capacity decision is medical, not legal, and does not trigger due process protections. She further contends, because section 1418.8 is implemented directly by nursing homes, no state action is involved and hence the due process clause is inapplicable. In her view, notice is not required.
We reject the Director's contentions as a legal matter; state deprivation of a constitutionally guaranteed right is constrained by due process, even if there is no separate statute granting that *658right. And the right to determine one's own health care options involves fundamental liberty interests, as well as privacy interests. ( People v. Petty , supra , 213 Cal.App.4th at p. 1417,
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 *867due process claim. Although section 1418.8 may be directly implemented by nursing homes, the Department is responsible for oversight, inspection and surveying nursing homes to enforce the statute's implementation. ( Health & Saf. Code, § 1279.) Moreover, not only are petitioners mounting a challenge to a statutory scheme enacted by the state Legislature, but nursing homes are, in effect, performing the state's obligations under the parens patriae doctrine, which requires the state to care for its most vulnerable residents who cannot care for themselves.7 (See Qawi , supra , 32 Cal.4th at p. 15,
We think the superior court was right to conclude that, looking at the statute literally, as written, section 1418.8 fails to meet due process requirements under article I, section 7, subdivision (a) of the California Constitution. A declaration of incapacity subjects the nursing home resident to grievous loss and must be accompanied by due process protections. Petitioners have presented evidence in this case that a declaration of incapacity not only deprives the nursing home resident of decisionmaking power over his or her own health care, but may result in loss of control over finances and freedom of movement. The superior court's findings amply support its determination that, as illustrated by Gloria A.'s circumstances, section 1418.8, on its face, is constitutionally deficient. In fact, in one critical respect-a patient's right to notice of entitlement to a patient representative on the IDT-we conclude the superior court's due process analysis did not go far enough.
2. Construing Section 1418.8 to Save it From Constitutional Infirmity
Presented with a petition for a writ of mandate seeking both declaratory and injunctive relief, the superior court elected to proceed by injunction. In prohibiting enforcement of section 1418.8 "to the extent that said section does not require" constitutionally required notice, the superior *659court recognized that nursing home residents who have been determined to lack decisional capacity are unlikely to understand or be able to act on such notice. It considered the privacy rights at stake to be so fundamental and the consequences of erroneous deprivation so potentially harmful to the patient, that *868state standards of due process require, at a minimum, written notice of the four listed categories of information.
While we agree in principle with the superior court's due process analysis, we think the proper remedial approach here is to preserve the statute's constitutionality by interpretation, not to prohibit its enforcement by injunction. Legislation comes to us clothed with a presumption of validity, and when dealing with a challenge to a statute, whether facial or as applied, our mission is, "wherever possible, ... [to] interpret ... [the challenged] statute as consistent with applicable constitutional provisions, seeking to harmonize Constitution and statute." ( California Housing Finance Agency v. Elliott (1976)
In rejecting a due process challenge to section 1418.8, the Rains court relied upon the fact that the statute does not stand in isolation, but operates within a complex regime of overlapping state and federal statutes and regulations establishing the rights of nursing home residents. ( Rains , supra , 32 Cal.App.4th at pp. 186-187,
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,
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 *870decision, any recommendation for treatment by the IDT, and the right to judicial review. Without mandated notice of these matters to patients, in our view, the respect for personal autonomy that it is the central objective of section 1418.8 to protect is essentially meaningless. As the superior court explained, "[t]o the extent ... patients [covered by section 1418.8 ] are competent enough to want to challenge ... determinations" made for and about them, "notice and opportunity may allow them to keep their decision-making capacity, or designate someone of their own choosing, instead of placing such decisions in the hands of a team of strangers." At stake, fundamentally, is the right of individual dignity. "If, in fact, the patient lacks capacity," the superior court pointed out, "then the patient will likely be unable to understand the nature of these determinations or to seek review," but at least "will have been afforded his or her due process rights." We take the same view, but rather than bar enforcement of section 1418.8 because it makes no express provision for notice and an opportunity to be heard, we imply these requisites as a matter of statutory *661interpretation and constitutional imperative.
3. Adequacy of Notice
Although we conclude the superior court's due process analysis was correct, in some respects it did not go far enough. Beyond requiring written notice of certain kinds of information, for example, the court did not expound on what "adequate notice" means in this context. When notice is required, it must be reasonably calculated to give actual notice to the person affected. ( Rasooly v. City of Oakley (2018)
*871But requiring notice to affected residents, by itself, is not sufficient. This is a population that, by definition, will include many people who lack the ability to comprehend complex written expression.16 Notice to an incompetent person alone does not comport with due process. In Covey v. Town of Somers (1956)
Hence, we conclude the superior court's order in this case requiring written notice to the resident alone did not go far enough to remedy the due process problem.
*662Given the health circumstances of the intended recipients, we hold that written notice must also be given to at least one competent person who might be willing and able to discuss the meaning of the notice to the resident. The patient representative or the local ombudsman provided for in section 1418.8, subdivisions (e) and (f) could, for instance, receive such notice on the patient's behalf. Anyone empowered by the Probate Code to pursue judicial relief for the resident, even if they are not available to serve as a surrogate decisionmaker, might suffice. (See also Prob. Code, § 3203 [listing persons entitled to pursue judicial remedy under Prob. Code, § 3201 on patient's behalf].)
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 *872decisions of the resident, but who has agreed to serve on the interdisciplinary team, or other person authorized by state or federal law." ( § 1418.8, subd. (f).) According to Rains , patient representatives may include "patient advocates, legal counsel, and all other persons having an interest in the welfare of the patient," as well as the public guardian or a local ombudsman. ( Rains , supra , 32 Cal.App.4th at p. 182,
Rains took the broad statutory definition as a sign that practically no patient would be unrepresented on an IDT, finding it "almost impossible to conceive of a patient who could not have a patient representative." ( Rains , supra , 32 Cal.App.4th at p. 182,
Rains also construed the statute as mandating that the patient representative alone would actually make the treatment decision; the medical staff on the IDT would make the decision only in exigent *663circumstances when the patient representative was unavailable or unwilling: "[W]e deal with a statutory procedure by which the equivalent of informed consent may be provided, by a patient representative if practicable, and in exigent circumstances by health professionals ...." ( Rains , supra , 32 Cal.App.4th at pp. 185-186,
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 *664an element of due process. "Where practicable" does not mean "where convenient" or "where someone happens to step forward." The statute imposes upon the nursing home an affirmative duty to investigate who might serve as patient representative, and if no family or friend is available, the nursing home must designate some person not *874employed by the nursing home-and thus independent of nursing home staff-to act as patient representative.19
As Rains held, the phrase "where practicable" allows the IDT to proceed without a patient representative only in "exigent circumstances" when the urgency of the patient's medical needs will not allow for the patient representative's participation. ( Rains , supra , 32 Cal.App.4th at pp. 166-167,
It is clear to us, as it was to the panel in Rains , that the Legislature intended to give nursing home residents something as close as possible to a voice on any IDT convened to make a determination about the resident's health care, and that voice was to be communicated through a "patient representative." ( § 1418.8, subd. (e).) Because the resident has a statutory right to the participation of a patient representative in the IDT process, the notice that we require in parts IV.D.2. and IV.D.3., ante , must include notice of that right. Only through vigorous enforcement of the right to have a patient representative serve on the IDT may the resident's due process rights under our state Constitution be protected and effectuated.
5. Timing Considerations
a. Timing of Notice
Petitioners' cross-appeal presents the question whether the due process clause of the state Constitution requires more than the relief the superior court provided, whether it requires notice of the proposed declaration of incapacity prior to the physician making the capacity decision, and likewise requires notice of the proposed lack of surrogate finding before that finding is made. (See Goldberg v. Kelly (1970)
*875Petitioners' argument is that without prior notice, the right to oppose these decisions in court afterward is ineffective, in part because it would reverse the burden of proof. (Cf. Doe v. Gallinot (9th Cir. 1981)
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,
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, *876presumably on a relatively short timetable. ( § 1418.8, subd. (a).) There is no requirement for a standalone capacity determination.20 When the capacity determination is made contemporaneously with a treatment recommendation, the patient's needs generally will not allow for an adjudicative hearing in every case. Nor must we presume that every recommended procedure or every incapacity finding will be opposed by the resident.
The Director's amici argue that a ruling by this court requiring a judicial determination in each case, as a matter of course, would result in lengthy delays, and patients would go without needed medicine or medical procedures, resulting in suffering and possible death while waiting for a court ruling on capacity. Especially if antipsychotics cannot be prescribed by an IDT, they predict more nursing home patients *666will end up in mental hospitals. Additionally, more nursing home patients would have to be admitted to hospitals or urgent care facilities because their health problems would turn into emergencies while awaiting judicial action. Ultimately, the Director argues, nursing homes may refuse to accept patients subject to decisionmaking under section 1418.8 because they may believe they would be unable to tend to the patient's medical needs timely and responsibly. Hence, the Director and her amici predict, if we were to agree with petitioners' arguments, this most vulnerable population would run the risk of being confined to acute care facilities or hospitals or left without a viable means of securing medical care.
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)
*877b. Timing of Recommended Medical Interventions
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,
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.
*878E. Facial Challenge on Cross-Appeal: Who Decides Capacity, Judge or Doctor?
1. The Requirement of a Judicial Determination of Decisional Capacity
Petitioners contend in their cross-appeal that a physician cannot lawfully decide whether the patient has decisional capacity because the question of capacity is inherently a legal one, not a medical one. ( Qawi , supra , 32 Cal.4th at p. 17,
Petitioners suggest, because section 1418.8 lacks a judicial determination of incapacity as part of its procedure, the statute violates California's privacy guarantee. ( Cal. Const., art. I, § 1.) They contend the superior court's declaration of unconstitutionality of section 1418.8 did not go far enough because it did not declare a determination of incapacity by a treating physician was unconstitutional. In response, the Director claims the entire procedure described in section 1418.8 calls for the making of medical decisions, not legal decisions. She finds some support in Washington v. Harper , where the Supreme Court took no issue with the lack of a judicial hearing as to the need for antipsychotic medication because it considered such matters best assessed by medical professionals. ( Washington v. Harper , supra , 494 U.S. at pp. 231-233,
In its June 2015 order, the superior court noted that section 1418.8 does not "provide the same procedural safeguards found in Washington [v. Harper ] requiring an independent decisionmaker. Instead, section 1418.8 [, subdivision] (e) requires the same attending physician [who] determined the patient to be incompetent to be a part of the IDT that reviews that physician's prescribed medical intervention prior to administration of the medical intervention."
*668Nevertheless, the superior court did not hold our Constitution demands that nursing home residents be provided with an independent decisionmaker. It found the issue was decided by Rains.
*879We must determine whether the statute, on its face, violates the rights of nursing home residents. To assert a privacy violation, Hill , supra ,
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,
Petitioners base their argument in large part on three sentences from Qawi , supra ,
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 *880explained medically. The legal conclusion is therefore based at least in part on medical evidence, subject to a standardized definition of incapacity in section 1418.8, subdivision (b), which supplies some safeguard against arbitrariness and *669caprice.22 The determination of decisional capacity is, to be sure, increasingly recognized as a complicated undertaking, especially in patients with dementia. Petitioners' evidence, as well as briefing supplied by petitioners' amici, further shows that determination of incapacity is far from an exact science, that mistakes are made, and that capacity may vary from one context to another and from one time to another, often fluctuating with the specific circumstances a resident is in and the availability of someone who knows how to communicate effectively with him or her. Declarations by ombudsmen and others familiar with nursing home practices recount instances of erroneous or questionable determinations of incapacity, as in Gloria A.'s case.
To convince us that the risk of error is so high that we should find a due process violation here, petitioners point to language in Qawi , supra ,
We are not persuaded that Qawi calls for a judicial determination of incapacity. Just because a capacity determination has some legal consequences does not mean it must be made by a judge in every circumstance. In this statutory setting, the physician's decision regarding capacity is guided by objective standards and requires an investigation regarding possible surrogacy and patient wishes. ( § 1418.8, subds. (b) & (c).) But the most fundamental distinction is that, by its establishment of an IDT and provision for the participation of a patient representative, section 1418.8 allows for an informal *881and expeditious method-based on a collaborative model of decisionmaking-to resolve any objections that might be expressed on the patient's behalf.23 We *670conclude that so long as the patient's viewpoint is represented within the collaborative decisionmaking process of the IDT, due process is not violated. The regulations implementing section 1418.8 allow for the physician to make the incapacity determination only where the patient representative raises no objection. If an objection is raised, the incapacity decision must be made by a court. ( Cal. Code Regs., tit. 22, § 72527, subd. (c) ["The patient's incapacity shall be determined by a court in accordance with state law or by the patient's physician unless the physician's determination is disputed by the patient or patient's representative."].)
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,
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.
*882Rains rejected the idea that due process requires an adjudicative hearing to make an initial determination of incapacity. ( Rains , supra , 32 Cal.App.4th at pp. 184-185,
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,
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,
*8832. Petitioners' Argument to Exclude the Attending Physician as Decisionmaker on Capacity
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 ,
In Washington v. Harper , supra ,
Section 1418.8 does not provide for the same kind of independent decisionmaker, *672for the prescribing physician in California nursing homes makes an initial autonomous decision about the patient's incapacity, lack of a surrogate decisionmaker, and proposed treatment, and then is routinely included on the IDT that reviews those findings and the proposed treatment.25 ( § 1418.8, subds. (a) & (e).) We do not agree that this role by the attending physician renders section 1418.8 unconstitutional. "Due process is flexible and calls for such procedural protections as the particular situation demands." ( Morrissey v. Brewer (1972)
Like the Rains court, we will not assume bias or self-interest on the part of a treating physician. ( Rains , supra , 32 Cal.App.4th at pp. 181-182,
*884They do not occupy the same role as the jailers who wanted to medicate a prisoner in Washington v. Harper , the welfare authorities who were terminating public benefits in Goldberg v. Kelly (1970)
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.
*673F. Facial Challenge: Additional Due Process Claims on Petitioners' Cross-Appeal
Petitioners argue, largely on the basis of Washington v. Harper , supra ,
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.)
*886Given our holdings that the IDT process does not itself offend the Constitution and that IDT's may reconsider the attending physician's determination of incapacity, we reject the notion that legal counsel must be appointed to help deal with that issue, whenever it arises. The Legislature sought to eliminate from the process the time-consuming and adversarial nature that the *674participation of attorneys tends to entail. Instead, it provided that residents would have a patient representative serve on an IDT. ( § 1418.8, subds. (e), (f).) The inclusion of a patient representative in a collaborative decisionmaking process, as we have explained, is enough to satisfy due process in this context. (See, e.g., Washington v. Harper , supra , 494 U.S. at p. 236,
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,
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 *887Rains , supra , 32 Cal.App.4th at p. 186,
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 *675built into section 1418.8, together with other protections in the regulatory environment, are sufficient to satisfy the residents' constitutional rights to autonomy privacy and due process. They also point out that more modern atypical antipsychotics have fewer side effects and are now frequently used in nursing homes because they can be administered orally instead of by injection. ( Qawi , supra , 32 Cal.4th at p. 15,
Petitioners and their amici tell a decidedly different tale. They begin with the fact that the "attending physician and surgeon" referenced in section 1418.8 is frequently the nursing home's medical director. The attending physician is, at any rate, usually assigned to the resident, not chosen *888freely by the resident. ( In re Conroy , supra , 486 A.2d at p 1237.) As the medical director, the attending physician has a financial interest in medicating patients with antipsychotics: by medicating them into a more complacent state, whether in their best medical interests or not, the nursing home can manage the facility's population with fewer employees, thus increasing the facility's profit.
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 *676the fourth quarter of 2018, antipsychotic use has been reduced to 11.1 percent of California nursing home residents, a 48.5 percent reduction since 2011. (Centers for Medicare and Medicaid Services (CMS), National Partnership to Improve Dementia Care in Nursing Homes: Antipsychotic Medication Use Data Report, Quarterly Prevalence of Antipsychotic Use for Long-Stay Residents, States (April 2019) < https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/Antipsychotic-Medication-Use-Data-Report.pdf> [as of July 22, 2019].) This represents the fourth lowest prevalence of use among the 50 states. (Ibid. ) The statewide prevalence of 11.1 percent is well below the national average of 14.6 percent. (Ibid. ) Thus, the Director argues, past abuse provides no legitimate reason for declaring nursing home residents to have special due process protections in the administration of antipsychotics, where the regulatory system already rigorously controls the use of antipsychotics in nursing homes. As for the risks involved with antipsychotics, the Director points out that other common medications, such as insulin and blood thinners, are riskier and have been connected with far more adverse events and deaths than antipsychotics. *8893. The Regulatory Environment
Through the Nursing Home Reform Act, which applies to almost all California nursing homes,27 and its implementing regulations, the federal government has sought to reduce over-prescription of psychotherapeutic drugs by explicitly limiting their use in nursing homes. The law expressly provides that psychopharmacologic drugs may be administered to nursing home residents only on the orders of a physician as part of a written plan of care "designed to eliminate or modify the symptoms for which the drugs are prescribed," and only if, at least annually, an "independent, external consultant reviews the appropriateness of the drug plan of each resident receiving such drugs." ( 42 U.S.C. § 1395i-3(c)(1)(D).)
The law also provides that nursing home residents have a right to be free from "chemical restraints imposed for purposes of discipline or convenience and not required to treat the resident's medical symptoms." ( 42 U.S.C. § 1395i-3(c)(1)(A)(ii).) Such restraints may only be imposed "to ensure the physical safety of the resident or other residents," and "only upon the written order of a physician that specifies the duration and circumstances under which the restraints are to be used," except in emergencies. (Ibid. )
"The information material to a decision concerning the administration of a psychotherapeutic drug or physical restraint, or the prolonged use of a device that may lead to the inability of the patient to regain use of a normal bodily function shall include at least the following: [¶] (1) The reason for the treatment and the nature and seriousness of the patient's illness. [¶] (2) The nature of the procedures to be used in the proposed treatment including their probable frequency and duration. [¶] (3) The probable degree and duration (temporary or permanent) of improvement or remission, expected with or without *677such treatment. [¶] (4) The nature, degree, duration and probability of the side effects and significant risks, commonly known by the health professions. [¶] (5) The reasonable alternative treatments and risks, and why the health professional is recommending this particular treatment. [¶] (6) That the patient has the right to accept or refuse the proposed treatment, and if he or she consents, has the right to revoke his or her consent for any reason at any time." ( Cal. Code Regs., tit. 22, § 72528, subd. (b) ; see also id. , § 72527, subd. (a)(5).) *890Under federal regulations, facilities must ensure that antipsychotic drug therapy is not given to residents who have not previously used psychotropic drugs "unless the medication is necessary to treat a specific condition as diagnosed and documented in the clinical record," and they must give residents "gradual dose reductions, and behavioral interventions, unless clinically contraindicated, in an effort to discontinue these drugs." (
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,
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), *891but because nursing home patients have the protection of other laws sufficient to protect their privacy interests. And because of the urgency of medical decisions in nursing homes, and the size and staffing of the facilities, the same procedures need not be *678employed as are used in prisons or mental hospitals in order to comply with due process.
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,
In Keyhea , supra ,
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,
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,
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)
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 *893issues, we think, not only require us to expand upon Rains , but to reexamine some aspects of the approach to statutory interpretation the Rains court took. ( Lucent Technologies, Inc. v. Board of Equalization (2015)
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 *680section 1418.8 the Rains court adopted in passing on the issue of facial constitutionality appears to be predicated on an understanding that the preamble may be read as, in effect, a limitation on the reach of the statute, this case requires us to confront the question in a specific setting, as applied. While we otherwise agree with the Rains holding, on this specific point we do not. ( People v. Allen (1999)
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.
*894The superior court held, "Patients in skilled nursing facilities and intermediate care facilities are entitled to no [fewer] rights than mentally ill patients and prisoners, and therefore are either entitled to procedural safeguards consisting of either a judicial finding of incompetency as in Qawi and Keyhea , or some type of independent review process of the attending physician's recommendation to administer antipsychotic drugs along with notice and opportunity to be heard as in Washington [v. Harper ]." Because section 1418.8 does not provide such procedural safeguards, the court found the Department's application of section 1418.8 permitting patients to be treated with antipsychotic drugs under this statutory procedure would violate these patients' due process rights. In order to avoid this unconstitutional result, the superior court construed section 1418.8 as simply not applying to administration of antipsychotic medications: "Since section 1418.8 was not intended to permit administration of antipsychotic drugs, compliance with the procedures set forth in Probate Code section 3200 et seq. would still be required, except in emergency situations." We cannot accept this construction of the statute, as further explained below.
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,
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, *895while remaining precious, are somewhat diminished by their very physical and mental condition. The nursing home has a strong and often urgent interest in getting these patients their medications, including antipsychotic medications if necessary to treat a medical condition (and not used for patient control). As described above, the statutory and regulatory framework now in place sets clear limitations on the use of psychotherapeutic drugs. If the Director implements the law as written, the kind of abuse that has been described to us should not occur.
We admit to alarm at the descriptions of rampant abuse of antipsychotic medications that are contained in the amicus curiae briefs filed on behalf of the petitioners, as well as petitioners' somewhat anecdotal evidence submitted to the trial court. We anticipate that the changes we have mandated as a matter of due process-written notice to the resident and at least one additional supportive person, an opportunity to oppose treatment and capacity determinations in the IDT process by mandatory participation of a patient representative, and the opportunity for a judicial decision via judicial remedies authorized by section 1418.8, subdivision (j) -will help to prevent future abuse of antipsychotics in nursing homes. Those changes, together with vigilant enforcement of existing laws and regulations, should offer protection to nursing home patients, while not requiring judicial intervention in every prescription of antipsychotic medication.
H. As-Applied Challenge: Applicability of Section 1418.8 to End of Life Decisions
1. The Trial Court's Ruling and the Contentions of the Parties
In the last set of issues framed by the parties, we are tasked with reviewing an injunction against the use of section 1418.8 "to make end of life decisions regarding the withholding or withdrawal of life-sustaining treatment for [nursing home] residents," subject to four exceptions, first for decisions implementing a patient's wish to end life, second for decisions carrying out a patient's instructions, third for decisions to decline patient instructions for ineffective care or care contrary to generally accepted medical standards, and fourth for decisions to cease curative care and begin hospice care. The injunction issued upon an order granting petitioners' request for a writ of mandate on their eighth cause of action, which attacks the use of section 1418.8 "for treatments or discontinuation thereof which would result in death , such as, but not limited to[,] do not resuscitate, comfort care or discontinuation of treatment, or for POLST orders." (Italics added.)28
*682*896Petitioners contend section 1418.8 must not be used to end the lives of nursing home residents, and to the extent it has been so used, it violates due process and the California constitutional privacy guarantee. ( Cal. Const., art. I, §§ 1, 7.) In 1993, a memo describing the implementation of the relatively new section 1418.8 was written by the Department of Health Services'29 Licensing and Certification branch and sent to District Administrators throughout the state. The memo included a "Question and Answer" sheet which posed, as one potential question, whether section 1418.8 could be used to withdraw or withhold life-sustaining treatment. It then answered the question: "No. H & S Code, Section 1418.8, authorizes the IDT to make decisions regarding medical interventions. Since withdrawing or withholding life sustaining treatments are not medical interventions, this statute does not authorize the IDT to make these decisions on behalf of residents. " (Italics added.) But the Director now takes the position, as she did in the superior court, that while section 1418.8 is not designed for decisions to withdraw or withhold life-sustaining treatments, it may be used for some end of life decisions, such as the use of DNR orders directing that medically intrusive and painful resuscitative life-saving procedures not be used, or that terminally ill patients be sent to hospice care.30 The Director urges us, however, not to reach the merits of the issue because the superior court's order was an advisory opinion, because the review of that order raises issue that are not yet ripe for *897decision, and because the court improperly attributed actions by nursing homes to state action by the Department. If we reach the merits, the Director urges us to preserve an exception *683for referral to hospice care, which she argues is not an "end of life decision."
2. Justiciability
We reject the contention that any review of the superior court's ruling on the use of section 1418.8 for end of life decisionmaking is nonjusticiable on any of the grounds the Director advances. The superior court made specific factual findings about the practices of IDT's in making end of life decisions, and in doing so ruled on a concrete, live controversy that placed in doubt the constitutionality of section 1418.8 and its ongoing applicability-or inapplicability, as the case may be-to thousands of nursing home residents across the state. The test for ripeness requires us to consider not only whether the issue presented is appropriate for judicial resolution, but any hardships that may result if we refuse to decide the issue now. CAHF, as an intervenor in the superior court, estimated that 15 percent of the nursing home residents covered by section 1418.8 (900 to 1,800 residents) currently receive hospice or palliative care through the section 1418.8 process. Even if we thought the issue might be unripe (and we do not), the risk of grave consequences to a significant number of Californians would nevertheless move us to answer the questions posed now. And as for the Director's state action objection, "the state constitutional right to privacy ( Cal. Const., art. I, § 1 ), one of the traditional sources of a patient's right to autonomy and bodily integrity, protects against private conduct[.]" ( Wendland , supra , 26 Cal.4th at p. 541, fn. 10,
3. Petitioners Have Not Established That Section 1418.8 Has Been Used for True "End of Life" Decisions
Turning to the merits, we will reverse the order granting writ relief on the petitioners' eighth cause of action. We see no evidence in the record to support any use of IDT's by nursing homes to make end of life decisions which result in death , which is what petitioners alleged and here on appeal remains the thrust of their argument, supported by repeated references in their briefs to "life ending" decisions.31 The evidentiary record supporting the eighth cause of action consists of a series of declarations from social workers and ombudsmen knowledgeable about practices of nursing facilities in different parts of the state, and relatives of individuals who have passed away but *898who were once nursing home residents, recounting situations in which nursing home staff members-acting on their own, without consulting the resident, and sometimes without even pretense of the authority from an IDT or a physician-imposed or changed a POLST or a DNR order, or decided to place a resident on comfort care, sending the person to hospice care and ceasing all curative treatment. Citing these declarations, the trial court specifically found that nursing homes are "making end of life decisions without consulting patients and without considering the patient's wishes as to end of life decisions."32 *684There is an evidentiary gap between what was pleaded on this issue and what was proved. The problem here is that the principal case cited by the petitioners in support of the eighth cause of action, and relied upon by the superior court in issuing writ relief on that claim, Wendland , supra ,
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,
*899After spending more than a year in a coma following an auto accident, Robert Wendland, the patient in Wendland , remained severely disabled, physically and cognitively, despite years of therapy. ( Id. at p. 524,
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,
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,
It seems clear why petitioners characterize the IDT determinations they seek to challenge in the eighth cause of action, in blunt terms, as "decisions *900to end life." That is the causative framing used by the Wendland court. (See Wendland , supra , 26 Cal.4th at p. 554,
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,
None of the IDT decisions set forth in petitioners' declarations involving POLSTs, DNR orders or hospice care are life or death decisions that would expose the patient to "starvation, dehydration, and death." ( Wendland, supra , 26 Cal.4th at p. 547,
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, *902read plainly-"decisions concerning his or her heath care"-encompasses health care decisions made in anticipation of the end of life. In deciding the facial constitutionality of section 1418.8, the Rains court was not called upon to consider actual IDT decisionmaking, yet in dicta it placed a "routine, day-to-day" limitation on the statute by reference to the statutory preamble. Absent ambiguity, we see no need, nor is it proper, to delve into legislative intent suggested by uncodified language outside the body of the statute. ( Allen , supra , 21 Cal.4th at pp. 860-861,
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,
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 *688home residents. Drabick , like Wendland , involved a conservator's proposal to withdraw feeding and hydration tubes that were keeping the conservatee alive. ( Drabick , supra , 200 Cal.App.3d at pp. 191-192,
Among other things, the Drabick court said this: "Once it is acknowledged that William Drabick has a right to have medical treatment decisions made in his best interests, it is readily apparent that the right is meaningless unless someone is permitted to make the decisions. To delegate an incompetent person's right to choose inevitably runs the risk that the surrogate's choices will not be the same as the incompetent's hypothetical, subjective choices. Allowing someone to choose, however, is more respectful of an incompetent person than simply declaring that such a person has no more rights.... As another court has observed, '[w]e do not pretend that the choice of [the incompetent's] parents, her guardian ad litem , or a court is her own choice. But it is a genuine choice nevertheless-one designed to further the same interests she might pursue had she the ability to decide herself. We believe that having the choice made in her behalf produces a more just and compassionate result than leaving [her] with no way of exercising a constitutional right.' " ( Drabick ,
The petitioners suggest there is indeed a way to ensure incapacitated, unbefriended nursing home residents may exercise their constitutionally protected rights, and that is to recognize a right to counsel and adjudication of those rights in a judicial forum. It is far from clear to us, however, that the adversary process which is so familiar to us in the court system is the optimal default means for decisions of the kind we have here, which are often as much ethical as they are medical and legal. ( Drabick, supra , 200 Cal.App.3d at p. 204,
V. THE APPROPRIATE FORM OF RELIEF
As we read the Superior Court's judgment, it granted a writ of traditional mandate and issued equitable relief in the form *689of an injunction. That is *904understandable, since injunctive relief was among the remedies the petitioners requested in their prayer for relief. (First Amended Verified Petition for Writ of Mandate, Declaratory Relief and Injunction, filed January 15, 2015, at p. 38, ¶ 5 [requesting that the court "[e]njoin [the Department] from permitting the use of Section 1418.8 by all California skilled nursing and intermediate care facilities"].) They had grounds to do so. Even though " ' "[a] traditional writ of mandate under Code of Civil Procedure section 1085 is a method for compelling a public entity to perform a legal and usually ministerial duty" ' " ( Lippman v. City of Oakland , supra , 19 Cal.App.5th at p. 756,
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)
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)
We do not agree that the issuance of a writ is appropriate or necessary. To obtain a writ of mandate under *905Code of Civil Procedure section 1085, a petitioner must establish, among other things, " ' " '(1) [a] clear, present and usually ministerial duty upon the part of the respondent [citations]; and (2) a clear, present and beneficial right in the petitioner to the performance of that duty [citation].' " ' " ( Rivera v. Kent (2019)
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."
VI. DISPOSITION
The 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 *906representative participate in IDT decisionmaking; and (f) the resident's right to judicial review of IDT decisions under section 1418.8, subdivision (j). All such written notifications must be made not only to the resident, but also to at least one competent person whose interests are aligned with the resident.
(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.
Related
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