California Laws for Health Care Decision-Making and the Impact of COVID-19

By: Rafael Ruano, Esq. and Caitlyn Andrijich, J.D.

Estate Planning: Wills, Trusts, Power of Attorney, Advanced Health Care Directive​In light of the COVID-19 pandemic, it has become more crucial than ever to have an Advance Health Care Directive in place and that we know our rights in the face of big health care decisions.

Again, this is a pertinent issue now, but the history of these laws date way back, including some major changes starting back in the 70s.

In 1972, the California Supreme Court recognized a person’s right to control his or her own medical treatment in the case Cobbs v. Grant.  (Cobbs v. Grant, 8 Cal. 3d 229 (1972)).  The Court held that treatment performed by a doctor without the patient’s informed consent was a battery.  The Court in Cobbs stated, “Where a doctor obtains consent of the patient to perform one type of treatment and subsequently performs a substantially different treatment for which consent was not obtained, there is a clear case of battery.”  (Cobbs v. Grant, 8 Cal. 3d 229, 239 (1972)).

Informed Consent

The Court in Cobbs found that a patient’s consent is only valid if the patient was fully informed of consequences of the treatment.  The Court stated, “As an integral part of the physician’s overall obligation to the patient, there is a duty of reasonable disclosure of the available choices with respect to proposed therapy and of the dangers inherently and potentially involved in each. With respect to the extent of the disclosure, the patient’s right of self-decision is the measure of the physician’s duty to reveal. That right can be effectively exercised only if the patient possesses adequate information to enable an intelligent choice. The scope of the physician’s communication to the patient must be measured by the patient’s need, and that need is whatever information is material to the decision. Thus, the test for determining whether a potential peril must be divulged is its materiality to the patient’s decision.” (Cobbs v. Grant, 8 Cal. 3d 229, 234 (1972)).

Under California Probate Code Section 813, a person must possess the mental capacity to give informed consent and may give informed consent if that person can:

(a) For purposes of a judicial determination, a person has the capacity to give informed consent to a proposed medical treatment if the person is able to do all of the following:

(1) Respond knowingly and intelligently to queries about that medical treatment.

(2) Participate in that treatment decision by means of a rational thought process.

(3) Understand all of the following items of minimum basic medical treatment information with respect to that treatment:

(A) The nature and seriousness of the illness, disorder, or defect that the person has.

(B) The nature of the medical treatment that is being recommended by the person’s health care providers.

(C) The probable degree and duration of any benefits and risks of any medical intervention that is being recommended by the person’s health care providers, and the consequences of lack of treatment.

(D) The nature, risks, and benefits of any reasonable alternatives.

(b) A person who has the capacity to give informed consent to a proposed medical treatment also has the capacity to refuse consent to that treatment.

Advance Health Care Directive

Under California Probate Code Section 4605, “Advance health care directive” or “advance directive” means either an individual health care instruction or a power of attorney for health care.  You may nominate someone to make health care decisions for you either effective immediately or only upon your incapacity.  “Health care decision” means a decision made by a patient or the patient’s agent, conservator, or surrogate, regarding the patient’s health care, including the following:

(a) Selection and discharge of health care providers and institutions.

(b) Approval or disapproval of diagnostic tests, surgical procedures, and programs of medication.

(c) Directions to provide, withhold, or withdraw artificial nutrition and hydration and all other forms of health care, including cardiopulmonary resuscitation (CPR). (Cal. Prob. Code § 4617)

Health Insurance Portability and Accountability Act of 1996 (“HIPAA”)

The purpose of HIPAA is to improve portability and continuity of health insurance coverage in the group and individual markets, to combat waste, fraud, and abuse in health insurance and health care delivery, to promote the use of medical savings accounts, to improve access to long-term care services and coverage, to simplify the administration of health insurance, and protect confidential health care information.

HIPAA ‘s privacy regulations requires health care providers and organizations to follow procedures to maintain confidentiality and security of protected health information.  However, this often creates hurdles for families to manage a person’s health care insurance and other health care business.  In an effort to protect a person’s health information, it can also prevent family members from being fully informed of your health information.  You may execute a HIPAA Authorization Release to permit certain individuals to obtain confidential and protected health information.

In addition, the California’s Confidentiality of Medical Information Act (CMIA) was established to protect health information from unauthorized disclosure and provide additional privacy protections to HIPAA.  (Cal. Civ. Code Sections 56-56.37).

HIPAA changes due to COVID-19

The U.S. Department of Health and Human Services (HHS) waived certain penalties under HIPAA Privacy Rule against hospitals effective March 15, 2020.   The nationwide public health emergency due to COVID-19 provided a need for public health official, medical and emergency personnel to communicate efficiently about the virus, which prompted the HHS to waive certain penalties under the HIPAA Privacy Rule.  However, HHS made it clear that the HIPAA Privacy rule is not suspended in its entirety, but rather waived sanctions and penalties against a covered hospital that does not comply with the following provisions of the HIPAA Privacy Rule:

  • the requirements to obtain a patient’s agreement to speak with family members or friends involved in the patient’s care. See 45 CFR 164.510(b).
  • the requirement to honor a request to opt out of the facility directory. See 45 CFR 164.510(a).
  • the requirement to distribute a notice of privacy practices. See 45 CFR 164.520.
  • the patient’s right to request privacy restrictions. See 45 CFR 164.522(a).
  • the patient’s right to request confidential communications. See 45 CFR 164.522(b).

(https://www.hhs.gov/sites/default/files/hipaa-and-covid-19-limited-hipaa-waiver-bulletin-508.pdf)

You can still execute a HIPAA/CMIA Authorization Release and provide your wishes to your health care provider to try to protect the disclosure of your protected health information from certain individuals.

You may find statutory Advance Health Care Directives or examples of HIPAA/CMIA Authorization Releases online.  However, these forms are often inadequate to properly inform your physician of your wishes.  For an example, physicians have different opinions on what treatments constitute life sustaining treatment like artificial nutrition and hydration.  In a custom Advance Health Care Directive you may designate your wishes more specifically and provide additional details such as burial instructions and permissions for palliative care or pain relief measures.  You may also include your wishes to maintain independent living for as long as possible to direct your health care agents to keep you at your home for as long as possible, rather than an assisted living facility.

Goyette & Associates, Inc. prepares custom Advance Health Care Directives with HIPAA/CMIA Authorization Releases.  Contact our office at 916.851.1900 or [email protected] for a free consultation on your estate plan and your custom health care wishes.