THE NEXT STEPS IN ADVANCE MEDICAL PLANNING

The POLST Paradigm Defined

“The evolution of advance directives has mirrored that of many new medical technologies: initial unbridled enthusiasm evolved into skepticism as empirical evidence raised questions about the current practice, followed by a wiser, more constrained application” (White & Arnold, 2011, p. 1485). Growing frustration with the inherent limitations of existing instruments for promoting the prospective autonomy of critically ill patients who may become decisionally incapacitated has led many attorneys, health care providers, and commentators to advocate the use of POLST forms as the next step in the evolution of health care advance planning law and policy. (The exact nomenclature varies among different jurisdictions; some states, New York for instance, use the acronym MOLST, or Medical Order for Life-Sustaining Treatment.) Unlike a traditional AD executed by a patient while still decisionally capable, POLST entails a medical order written by
a physician (with the concurrence of the patient or surrogate) instructing other health care providers such as emergency medical squads about the treatment of a critically ill patient under specific factual situations.

POLST is intended for someone who has advanced, irreversible illness. “The POLST form is a more uniform, comprehensive, and portable method of documentation of patients' EOL treatment desires. Although the POLST form is not intended to replace advance directives executed by patients, it corrects many of the inadequacies of current AD forms and intends to lessen the discrepancy between a patient's end-of-life care preferences and the treatment(s) eventually provided by the patients' health care providers” (Spillers & Lamb, 2011, pp. 82–83). There is solid evidence that health care providers are much more likely to honor a patient's POLST across medical settings than they are to follow the patient's AD (Hickman et al., 2010).

At least 15 states have formally implemented the POLST Paradigm, with national coordination efforts being administered through the Center for Ethics in Health Care at the Oregon Health & Science University ( ohsu.edu/polst). Many more states are in the process of developing or considering their own versions of POLST (Sabatino & Karp, 2011).

POLST Strategic Issues

There is an array of strategic issues with which states striving to successfully adopt and fulfill the POLST Paradigm must grapple (Hickman, Sabatino, Moss, & Nester, 2008).The initial set of strategic issues asks about what changes, if any, in current state law are necessary to authorize and/or encourage attending physicians to write POLSTs for appropriate patients and to authorize and/or encourage other health care professionals to respect and implement those POLSTs. One potential route (involving the most complex and controversial political ramifications) (Goodman, 2007) would be to propose legislative enactment of new, explicit statutory language.

Either as an alternative strategy to legislation or as a supplemental way of implementing the statutory change, explicit regulatory modifications could be sought to clarify the POLST-related rights and responsibilities of affected parties (Cerminara & Bogin, 2008). This approach would necessitate identifying which state agencies have relevant jurisdiction and ways to assure inter-agency coordination and cooperation in the administration of POLST oversight.

Athird potential strategy would bypass, or at least delay, legislation and regulation in favor of action predicated on clinical consensus. Several states have already successfully pursued this approach. This approach entails obtaining explicit agreement from the relevant state agencies that current state statutes and regulations already permit physicians (and in some places other health care professionals) to write, patients and surrogates to agree to,
and other health care providers to implement POLSTs. In this approach, the emphasis of change agents is placed on professional and public education rather than on trying to amend the law. The clinical consensus strategy relies mainly on common state legislative provisions such as the “Preservation of Existing Rights” clause found in Florida's AD statute:

The provisions of [Chapter 765] are cumulative to the existing law regarding an individual's right to consent, or refuse to consent, to medical treatment and do not impair any existing rights or responsibilities which a health care provider, a patient, including a minor, competent or incompetent person, or a patient's family may have under the common law, Federal Constitution, State Constitution, or statutes of this state. (Fla. Stat. § 765.106)

The argument would be that current common (that is, judge-made) law and constitutional law already protect the liberty rights of patients to make contemporaneous and prospective medical decisions and to secure the assistance of their physicians in effectuating those liberty rights by, for example, documenting a POLST instructing other health care providers on behalf of the patient.

Assuming that either a statutory or regulatory change strategy is pursued to promote the POLST Paradigm in a state, a myriad of policy questions need to be addressed in the legislative or rule-making drafting stage. There is a wide divergence among states with up-and-running POLST programs regarding how they have resolved these questions (Sabatino & Karp, 2011).

For instance, decisions need to be made about the specific content of the adopted POLST form and whether that content should be incorporated into statute or regulation or only described in broad terms. Typical POLST forms presently in use contain separate sections dealing with: CPR attempts; medical interventions (full treatment vs. comfort measures only); use of antibiotics; provision of artificially administered nutrition and hydration; reason for the orders (documenting the physician's conversations with the patient and/or surrogate); and signatures of the physician and (depending upon the particular jurisdiction) the patient or surrogate. States in which POLST is just emerging might comport with or deviate from this particular structure. When a statute or regulation does incorporate specific POLST form content, a question arises whether the explicitly approved form must be used by physicians in order for the POLST to be considered valid or, alternatively, whether a somewhat deviating but nonetheless comparable form would be legally acceptable.

A further legal and policy-drafting question is whether to require health care providers to offer the POLST option to patients. If so, which
specific providers would be covered? Should the requirement encompass all patients or only certain categories of persons? What timing requirements (for instance, at the time of admission to a health care institution, as now specified in the PSDA), if any, should be delineated? What is the penalty for provider noncompliance? Another, likely very politically contentious, issue relates to who, beside physicians, should be granted the legal power to write POLSTs. Should this authority be extended, for example, to advance practice nurses or physicians' assistants, as has happened already in several jurisdictions?

A different strategic conundrum concerns the extent of the authority that a statute or regulation grants surrogates to consent to a POLST on behalf of a patient who lacks enough present cognitive and emotional capacity to decide and speak personally about medical treatment concerns. The desire to facilitate the writing of POLSTs, even when concurrence must come from a surrogate instead of the patient, must be balanced against the need to protect decisionally compromised patients from surrogates who, unfortunately (Rosenberg, 2010), may not be worthy of the trust bestowed upon them.

One of the largest impediments to successful POLST implementation has been health care providers' anxieties about the risk of possible lawsuits brought against them by disgruntled family members. Overcoming that vastly exaggerated but strongly and sincerely held apprehension is vital to achieving successful POLST implementation. Thus, the good faith legal immunity provisions necessarily built into POLST statutes and/or regulations must be drafted carefully, balancing encouragement of provider compliance with POLSTs against the need for some form of accountability for the actors involved. On a related note, there is a question about whether provider compliance with a valid POLST should be mandated. If so, what is the proper range of sanctions for a failure to comply with the mandate?

Other operational issues also need to be resolved in the legislative or regulatory drafting stage. May a provider rely, in withholding certain kinds of treatment, on copies or faxes of the POLST document? Must those copies or faxes be printed on paper of a particular color and/or size so as to be identifiable readily? Alternatively, must the original document always be available? If there is a material conflict between the physician's instructions in a patient's POLST and that patient's own earlier written AD, which document governs? What about POLST forms with some sections not completed? In the absence of a totally completed POLST form, should there be a presumption that maximum aggressive medical intervention must be rendered? Finally (although this enumeration of issues does not purport to be comprehensive), there is the matter of portability of the POLST as a patient travels between different jurisdictions. Should a state's legislation or regulations stipulate that providers in that state may (or must) recognize and implement POLSTs validly executed in other jurisdictions, in return for reciprocal respect for its own POLSTs by the other jurisdictions?

 
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