The POLST Paradigm:The POLST Paradigm:Potential Legal BarriersPotential Legal Barriers

Charles P. Sabatino, JDCharles P. Sabatino, JDAmerican Bar AssociationAmerican Bar Association

sabatinoc@staff.abanet.orgsabatinoc@staff.abanet.org

Potential Legal Barriers StudyPotential Legal Barriers Study• Authors: Susan Hickman, PhD, Charles Authors: Susan Hickman, PhD, Charles

Sabatino, JD, Woody Moss, MD, and Jessica Sabatino, JD, Woody Moss, MD, and Jessica Nester, JD.Nester, JD.

• Support provided by:Support provided by:– Oregon Health & Science Univ. Center for Ethics in Health Care Oregon Health & Science Univ. Center for Ethics in Health Care – National Hospice and Palliative Care OrganizationNational Hospice and Palliative Care Organization– American Bar Association Commission on Law and AgingAmerican Bar Association Commission on Law and Aging– West Virginia University Center for Health Ethics and Law West Virginia University Center for Health Ethics and Law

• Research identifies key potential legal and Research identifies key potential legal and regulatory barriers to the POLST Paradigm in 50 regulatory barriers to the POLST Paradigm in 50 states and DCstates and DC

Potential Legal Barriers StudyPotential Legal Barriers StudyFive Step Methodology:Five Step Methodology:1.1. E-mail to state EMS Directors and LTC contacts.E-mail to state EMS Directors and LTC contacts.2.2. Telephone interviews.Telephone interviews.3.3. Review identified potential legal barriers.Review identified potential legal barriers.4.4. Analysis by law student, legal consultant and Analysis by law student, legal consultant and

then co-investigator of following in all 50 States then co-investigator of following in all 50 States plus D.C:plus D.C:

– Living Will provisions.Living Will provisions.– Durable Power of Attorney for Health Care Provisions.Durable Power of Attorney for Health Care Provisions.– Default Surrogate Provisions.Default Surrogate Provisions.– Non-hospital DNR provisions (statute and regulation)Non-hospital DNR provisions (statute and regulation)– Guardianship law.Guardianship law.– State government web sites for DNR orders and/or POLST.State government web sites for DNR orders and/or POLST.

5.5. Barriers were summarized in Barriers were summarized in Table Table and and AppendixAppendix

TermsTerms• Advance directive statutes:Advance directive statutes: living will statutes or living will statutes or

statutes allowing people to appoint health care agents statutes allowing people to appoint health care agents (sometimes referred to as health care proxy laws, or (sometimes referred to as health care proxy laws, or durable powers of attorney for health care). durable powers of attorney for health care).

• Agent:Agent: person appointed by the patient. person appointed by the patient.• Guardian:Guardian: Any court appointed decision-maker with Any court appointed decision-maker with

authority over health decisions.authority over health decisions.• ANH:ANH: Artificially supplied nutrition and hydration Artificially supplied nutrition and hydration

(e.g., food and water through tubes); does not include (e.g., food and water through tubes); does not include spoon feeding.spoon feeding.

TermsTerms• DS:DS: Default Surrogate = person or persons identified Default Surrogate = person or persons identified

by state law with authority to act as surrogate by state law with authority to act as surrogate decision-maker for an individual if there is no agent or decision-maker for an individual if there is no agent or guardian.guardian.

• OHDNR:OHDNR: Out-of-Hospital DNR orders (also referred to Out-of-Hospital DNR orders (also referred to as EMS-DNR Orders, or Comfort Care Orders, or CPR as EMS-DNR Orders, or Comfort Care Orders, or CPR Directives) The term does not include rules for DNR Directives) The term does not include rules for DNR orders for hospitals or other health care facilities.orders for hospitals or other health care facilities.

• Approved form:Approved form: government approved, usually by government approved, usually by state dept of health or emergency medical services state dept of health or emergency medical services program.program.

• Forgoing:Forgoing: withholding or withdrawing. withholding or withdrawing.

TermsTerms• LSTLST: : Life-sustaining treatment, defined differently in Life-sustaining treatment, defined differently in

statutes/regulations, but almost always includes CPR; statutes/regulations, but almost always includes CPR; treatment of ANH is less consistent.treatment of ANH is less consistent.

• N/A:N/A: not applicable because state does not have type of not applicable because state does not have type of law at issue, e.g., no DNR protocol or no DS, no advance law at issue, e.g., no DNR protocol or no DS, no advance directive statute.directive statute.

• Patient:Patient: adult to whom treatment decision applies. adult to whom treatment decision applies. • Substituted consent:Substituted consent: consent for certain types of consent for certain types of

medical treatment when patient is not able to consent medical treatment when patient is not able to consent himself/herself.himself/herself.

• Witness:Witness: usually must be adult with decision-making usually must be adult with decision-making capacity. Eligibility requirements for serving as a witness capacity. Eligibility requirements for serving as a witness are not spelled out in the Table.are not spelled out in the Table.

Introductory IssuesIntroductory Issues• Who may consent to life-sustaining treatment Who may consent to life-sustaining treatment

including DNR?including DNR?– Patient, agent/proxy, default surrogate, guardianPatient, agent/proxy, default surrogate, guardian– 39 states permit default surrogates to make EOL 39 states permit default surrogates to make EOL

decisionsdecisions– Rules may vary depending on decision-maker Rules may vary depending on decision-maker

• Substituted consent to forgo LST or ANH: Substituted consent to forgo LST or ANH: Limitations in AD, surrogate, or guardianship Limitations in AD, surrogate, or guardianship laws may limit POLST in certain circumstances.laws may limit POLST in certain circumstances.

Introductory Issues Introductory Issues

• OHDNR Order ProvisionsOHDNR Order Provisions– These exist in all but 4 states (MN, MS, These exist in all but 4 states (MN, MS,

MO,* ND) and represent a narrower MO,* ND) and represent a narrower template for the POLST concept, template for the POLST concept, addressing only one intervention. addressing only one intervention.

– Their limitations and requirements can Their limitations and requirements can hamper the use of the POLST Paradigm.hamper the use of the POLST Paradigm.

*MO subsequently enacted law.*MO subsequently enacted law.

Findings: LST/ANH Findings: LST/ANH • 23 states (45%) impose explicit limitations 23 states (45%) impose explicit limitations

on consent to forgo.on consent to forgo.– Most are diagnostic, e.g., terminal condition / Most are diagnostic, e.g., terminal condition /

PVS / end-stage conditionPVS / end-stage condition– A few require witnessingA few require witnessing– Limitation depends on whether the surrogate Limitation depends on whether the surrogate

is appointed agent (12 states), default is appointed agent (12 states), default surrogate (20 states) or guardian (12 states)surrogate (20 states) or guardian (12 states)

• 27 states impose some level of restriction 27 states impose some level of restriction where patient is pregnantwhere patient is pregnant

Examples of medical conditionsExamples of medical conditionsTerminal condition is the most common though Terminal condition is the most common though inconsistently defined, e.g.—inconsistently defined, e.g.—

– So. CarolinaSo. Carolina: "Terminal condition" means an incurable : "Terminal condition" means an incurable or irreversible condition that within reasonable or irreversible condition that within reasonable medical judgment could cause death within a medical judgment could cause death within a reasonably short period of time if life sustaining reasonably short period of time if life sustaining procedures are not used. procedures are not used.

– LouisianaLouisiana: "Terminal and irreversible condition" : "Terminal and irreversible condition" means a continual profound comatose state with no means a continual profound comatose state with no reasonable chance of recovery or a condition caused reasonable chance of recovery or a condition caused by injury, disease, or illness which, within reasonable by injury, disease, or illness which, within reasonable medical judgment, would produce death and for which medical judgment, would produce death and for which the application of life-sustaining procedures would the application of life-sustaining procedures would serve only to postpone the moment of deathserve only to postpone the moment of death..

ExamplesExamplesLimits on Forgoing ANH:Limits on Forgoing ANH:

• ColoradoColorado: For DS only -- cannot consent to forgoing : For DS only -- cannot consent to forgoing ANH unless ANH unless ““the attending physician and a second the attending physician and a second independent physician trained in neurology or independent physician trained in neurology or neurosurgery certify in the patient's medical record neurosurgery certify in the patient's medical record that the provision or continuation of artificial that the provision or continuation of artificial nourishment or hydration is merely prolonging the act nourishment or hydration is merely prolonging the act of dying and is unlikely to result in the restoration of of dying and is unlikely to result in the restoration of the patient to independent neurological functioning.the patient to independent neurological functioning.””

• OhioOhio: Guardian and DS may forgo ANH only upon the : Guardian and DS may forgo ANH only upon the issuance of an order of the probate court with several issuance of an order of the probate court with several preconditions specified.preconditions specified.

ExamplesExamplesLimits on Forgoing ANH:Limits on Forgoing ANH:• OklahomaOklahoma: No person has authority to forgo ANH : No person has authority to forgo ANH

except where:except where:1. The physician knows the patient gave 1. The physician knows the patient gave ““informed informed

consentconsent”” to forgo ANH; to forgo ANH;2. A court finds by clear and convincing evidence that 2. A court finds by clear and convincing evidence that

the patient gave the patient gave ““informed consentinformed consent”” to forgo ANH; to forgo ANH;3. The patient has a statutory advance directive 3. The patient has a statutory advance directive

authorizing forgoing of ANH;authorizing forgoing of ANH;4. ANH will cause 4. ANH will cause ““severe, intractable, and long-severe, intractable, and long-

lasting painlasting pain”” or is not medically possible; or or is not medically possible; or5. The patient is in the final stage of a terminal illness 5. The patient is in the final stage of a terminal illness

or injury, but this exception is overridden if or injury, but this exception is overridden if forgoing ANH forgoing ANH ““would result in death from would result in death from dehydration or starvation rather than from the dehydration or starvation rather than from the underlying terminal.underlying terminal.

Findings: OHNDR Findings: OHNDR

6 States (IN, KS, MI, OK, PA, TX) prescribe 6 States (IN, KS, MI, OK, PA, TX) prescribe detailed statutory form specifications.detailed statutory form specifications. 2 states (RI, DC) require a specified 2 states (RI, DC) require a specified

bracelet/necklace be used.bracelet/necklace be used. AR precludes w/h of treatments other than CPR.AR precludes w/h of treatments other than CPR. 33 states (65%) have form requirements deemed 33 states (65%) have form requirements deemed

minimal or moderate. May require some minimal or moderate. May require some modification of POLST to implement.modification of POLST to implement.

• 15 states impose medical preconditions.15 states impose medical preconditions.• 12 states have witnessing requirements.12 states have witnessing requirements.

Example of Highly Detailed Statutory OHDNR Form – Example of Highly Detailed Statutory OHDNR Form – KANSAS § 65-4942KANSAS § 65-4942

A "do not resuscitate" directive shall be in substantially the following form:A "do not resuscitate" directive shall be in substantially the following form:

PRE-HOSPITAL DNR REQUEST FORMPRE-HOSPITAL DNR REQUEST FORM

An advanced request to Limit the Scope of Emergency Medical CareAn advanced request to Limit the Scope of Emergency Medical CareI, ____________________, request limited emergency care as herein described.I, ____________________, request limited emergency care as herein described.I understand DNR means that if my heart stops beating or if I stop breathing, no medical I understand DNR means that if my heart stops beating or if I stop breathing, no medical

procedure to restart breathing or heart functioning will be instituted.procedure to restart breathing or heart functioning will be instituted.I understand this decision will not prevent me from obtaining other emergency medical care by I understand this decision will not prevent me from obtaining other emergency medical care by

pre-hospital care providers or medical care directed by a physician prior to my death.pre-hospital care providers or medical care directed by a physician prior to my death.I understand I may revoke this directive at any time.I understand I may revoke this directive at any time.I give permission for this information to be given to the pre-hospital care providers, doctors, I give permission for this information to be given to the pre-hospital care providers, doctors,

nurses or other health care personnel as necessary to implement this directive.nurses or other health care personnel as necessary to implement this directive.I hereby agree to the "Do Not Resuscitate" (DNR) directive.I hereby agree to the "Do Not Resuscitate" (DNR) directive.________________________________________ ______________________________________________________________________ ______________________________ Signature Signature DateDate________________________________________ ______________________________________________________________________ ______________________________ Witness Witness DateDate

I AFFIRM THIS DIRECTIVE IS THE EXPRESSED WISH OF THE PATIENT, IS MEDICALLY I AFFIRM THIS DIRECTIVE IS THE EXPRESSED WISH OF THE PATIENT, IS MEDICALLY APPROPRIATE, AND IS DOCUMENTED IN THE PATIENT'S PERMANENT MEDICAL RECORD.APPROPRIATE, AND IS DOCUMENTED IN THE PATIENT'S PERMANENT MEDICAL RECORD.

In the event of an acute cardiac or respiratory arrest, no cardiopulmonary resuscitation will be In the event of an acute cardiac or respiratory arrest, no cardiopulmonary resuscitation will be initiated.initiated.

___________________________________ ________________________________________________________________________ _____________________________________Attending Physician's Signature * Attending Physician's Signature * DateDate___________________________________ ________________________________________________________________________ _____________________________________Address Address Facility or Agency NameFacility or Agency Name

Example of Highly Detailed OHDNRExample of Highly Detailed OHDNRStatutory SpecsStatutory Specs

District of ColumbiaDistrict of Columbia§ 7-651.04. § 7-651.04. Comfort care bracelet or necklaceComfort care bracelet or necklace.. (a) EMS personnel shall recognize only a comfort care bracelet or (a) EMS personnel shall recognize only a comfort care bracelet or

necklace for purposes of withholding cardiopulmonary necklace for purposes of withholding cardiopulmonary resuscitation or advanced life support.resuscitation or advanced life support.

(b) The Mayor shall approve the design for a comfort care bracelet (b) The Mayor shall approve the design for a comfort care bracelet and necklace. The bracelet and necklace shall be easily identifiable and necklace. The bracelet and necklace shall be easily identifiable and designed so that the following information is visible:and designed so that the following information is visible:(1) The patient's name and an identification number;(1) The patient's name and an identification number;(2) The name and telephone number of the patient's attending (2) The name and telephone number of the patient's attending

physician;physician;(3) The comfort care order number; and(3) The comfort care order number; and(4) Any other information that the Mayor determines, by rule, to be (4) Any other information that the Mayor determines, by rule, to be

necessary to implement this chapter.necessary to implement this chapter.(c) The comfort care bracelet and necklace shall be metal, except that (c) The comfort care bracelet and necklace shall be metal, except that

the Mayor may issue a plastic temporary bracelet and necklace for the Mayor may issue a plastic temporary bracelet and necklace for use by a patient until the metal bracelet or necklace is received.use by a patient until the metal bracelet or necklace is received.

Withdrawal of LST and Use of Withdrawal of LST and Use of OHDNR OrdersOHDNR Orders

Standards/requirements may differ Standards/requirements may differ depending on:depending on:

• Which law: OHDNR vs. Advance Which law: OHDNR vs. Advance Directive law vs. DS law vs. Directive law vs. DS law vs. Guardianship law.Guardianship law.

• Who the decision-maker is: Patient, Who the decision-maker is: Patient, Agent, DS, Guardian.Agent, DS, Guardian.

• Setting: Hospital, LTC Facility, Home.Setting: Hospital, LTC Facility, Home.

Unanticipated FindingUnanticipated Finding

• Key contacts had great difficulty Key contacts had great difficulty interpreting relevant state laws.interpreting relevant state laws.

• Interrelation of multiple laws affects Interrelation of multiple laws affects options and procedures and adds options and procedures and adds confusion.confusion.– Answers from perspective of one law may Answers from perspective of one law may

be different from the perspective of be different from the perspective of another.another.

Scope Limits of StudyScope Limits of Study• If alternative preconditions include highly flexible If alternative preconditions include highly flexible

option (e.g. burdens outweigh benefits), then no option (e.g. burdens outweigh benefits), then no barrier noted.barrier noted.

• OHDNR exceptions not considered (e.g. mass OHDNR exceptions not considered (e.g. mass accidents, avoidance of conflict)accidents, avoidance of conflict)

• Some procedural elements not considered: Some procedural elements not considered: procedure to certify of conditions, certifications that procedure to certify of conditions, certifications that treatment not necessary for comfort care, notice to treatment not necessary for comfort care, notice to family.family.

• Standards for decision-making not considered: Standards for decision-making not considered: substituted judgment/best interests, some more substituted judgment/best interests, some more restrictive (clear and convincing)restrictive (clear and convincing)

• Whether OHDNR preempts facility proceduresWhether OHDNR preempts facility procedures..

Scope Limits of StudyScope Limits of Study• Restrictions on guardians -- Generally, their Restrictions on guardians -- Generally, their

authority re health care is determined by the authority re health care is determined by the appointing court. Only restrictions noted are appointing court. Only restrictions noted are those expressly stated in guardianship, OHDNR, those expressly stated in guardianship, OHDNR, or advance directive law.or advance directive law.

• Living Wills -- Decisions to forgo LST based Living Wills -- Decisions to forgo LST based solelysolely on a living normally require patient to be on a living normally require patient to be certified as being terminal or PVS. This limitation certified as being terminal or PVS. This limitation is not tracked on the chart.is not tracked on the chart.

• Facility regulation -- Regulations applicable to Facility regulation -- Regulations applicable to particular kinds of facilities, such as nursing particular kinds of facilities, such as nursing homes or assisted living facilities,are not tracked.homes or assisted living facilities,are not tracked.

Non-preemption CaveatNon-preemption Caveat• Most Advance Directive and OHDNR laws do Most Advance Directive and OHDNR laws do

not preempt any existing rights regarding not preempt any existing rights regarding health care decision-making authority or health care decision-making authority or responsibility.responsibility.

• Rather, they are complimentary.Rather, they are complimentary.• They include a carrot for providers: statutory They include a carrot for providers: statutory

immunity if complied with.immunity if complied with.• Thus, in most states, a reasonable argument Thus, in most states, a reasonable argument

can be made that since no law expressly can be made that since no law expressly precludes the POLST paradigm, it can be precludes the POLST paradigm, it can be implemented based upon its clinical implemented based upon its clinical appropriateness.appropriateness.

Non-preemption ExamplesNon-preemption ExamplesOHDNR LawOHDNR Law

• IDAHO - Sections 56-1020 through 56-1035, Idaho Code, IDAHO - Sections 56-1020 through 56-1035, Idaho Code, are cumulative to the existing law regarding an are cumulative to the existing law regarding an individual's right to consent, or refusal to consent, to individual's right to consent, or refusal to consent, to medical treatment and do not impair any existing rights medical treatment and do not impair any existing rights or responsibilities which a health care provider, a or responsibilities which a health care provider, a patient, including a minor, competent or incompetent patient, including a minor, competent or incompetent person, or a patient's family may have in regard to the person, or a patient's family may have in regard to the withholding or withdrawal of life-prolonging medical withholding or withdrawal of life-prolonging medical procedures or any other health care decision-making procedures or any other health care decision-making under the common law or statutes of this state. under the common law or statutes of this state. Idaho Idaho Code §56-1032Code §56-1032

• UTAH - Nothing in this part is intended to impair or UTAH - Nothing in this part is intended to impair or supersede any other legal right or legal responsibility supersede any other legal right or legal responsibility which a person may have to effect the withholding or which a person may have to effect the withholding or withdrawal of life-sustaining procedures in any lawful withdrawal of life-sustaining procedures in any lawful manner. manner. Utah Code Ann. §75-2-1117(4).Utah Code Ann. §75-2-1117(4).

Non-preemption ExamplesNon-preemption Examples

Advance Directive LawAdvance Directive Law

• FLORIDA - The provisions of this chapter are FLORIDA - The provisions of this chapter are cumulative to the existing law regarding an cumulative to the existing law regarding an individual's right to consent, or refuse to individual's right to consent, or refuse to consent, to medical treatment and do not impair consent, to medical treatment and do not impair any existing rights or responsibilities which a any existing rights or responsibilities which a health care provider, a patient, including a health care provider, a patient, including a minor, competent or incompetent person, or a minor, competent or incompetent person, or a patient's family may have under the common patient's family may have under the common law, Federal Constitution, State Constitution, or law, Federal Constitution, State Constitution, or statutes of this state. statutes of this state. Fla. Stat. Ann. §765.106 (2006)Fla. Stat. Ann. §765.106 (2006)

Take Home MessagesTake Home Messages1.1. Most problematic: Highly detailed statutory Most problematic: Highly detailed statutory

OHDNR order specifications/limitations (9 OHDNR order specifications/limitations (9 States).States).

2.2. Medical preconditions (OHDNR or Medical preconditions (OHDNR or LST/ANH) – Do not necessarily prevent use LST/ANH) – Do not necessarily prevent use of POLST but add to procedural of POLST but add to procedural burden/complexity and may limit scope of burden/complexity and may limit scope of eligible population (16 have no eligible population (16 have no preconditions across the board)preconditions across the board)

Take Home MessagesTake Home Messages

3.3. Witnessing - AWitnessing - Add to procedural dd to procedural burden/complexity.burden/complexity.

4.4. Lack of authorized decision-maker if no DS Lack of authorized decision-maker if no DS statute (14 states) may be a problem.statute (14 states) may be a problem.

5.5. Consider Non-preemption principle.Consider Non-preemption principle.

6.6. Principle: Regulation generally easier to Principle: Regulation generally easier to change than statute.change than statute.