Mcle Article: the Evolution and Use of the Polst—physician Orders for Life-sustaining Treatment—in California

• Jurisdiction: California,United States
• Author: By Carolyn West, Esq.* and Philip D. Batchelder, Esq.**
• Publication year: 2018
• Citation: Vol. 24 No. 2

MCLE ARTICLE: THE EVOLUTION AND USE OF THE POLST—PHYSICIAN ORDERS FOR LIFE-SUSTAINING TREATMENT—IN CALIFORNIA

By Carolyn West, Esq.* and Philip D. Batchelder, Esq.**

With the enactment of Assembly Bill No. 3000 in 2008, California residents and their doctors began to implement the Physician Orders for Life-Sustaining Treatment (POLST)—a model form containing instructions for medical treatments and interventions. The POLST is an adjunct to the advance health care directive and is particularly useful for patients who are frail or elderly, or who have a terminal illness. A person is a good candidate for a POLST if it would not be surprising for him or her to die in the next year. The bright-pink POLST form contains medical orders indicating the specific types of life-sustaining treatment that the individual wants—and does not want—and accompanies the individual as he or she travels between care settings and stages of care.

This article reviews the POLST model as it was developed in California, explains its purpose and legislative history, and describes the context in which POLST operates, including other relevant laws and decisionmaking mechanisms. The article then outlines the often complex circumstances in which a POLST may be relevant and useful, and offers practical tips for an estate planning lawyer wanting to help those clients who are candidates to establish a POLST form to engage in effective advance care planning.

In this article, "POLST" refers to the POLST program or form, "advance health care directive" will be shortened to "advance directive," and do-not-resuscitate will be abbreviated "DNR."

I. BEFORE THE POLST

A. Self-determination

Common law and constitutional safeguards protect an adult's right to direct or refuse medical treatment.¹ California's Health Care Decisions Law recognizes that every person has a right to expect dignity and privacy, and that each adult has the fundamental right to control the decisions relating to his or her own health care, including the decision to have life-sustaining treatment withheld or withdrawn.²

B. California Law 1. Natural Death Act

Enacted in 1976, California's Natural Death Act was the first of its kind in the United States.³ It provided for a declaration concerning the continuation of life-sustaining treatment when a person was permanently unconscious,⁴ and it protected physicians from being sued for failing to treat incurable illnesses at the patient's request.⁵ In this declaration, known as the "directive to physicians" or "living will," the individual gave instructions for withholding medical treatment that would merely prolong the process of dying, and for administering measures for comfort and pain relief.

2. Health Care Decisions Law

The statutes that authorized an individual to execute a written durable power of attorney for health care decisions were enacted in California in 1983.⁶ The following year, the legislature enacted a statutory form power of attorney,⁷ in which an individual could designate another person or persons as authorized to make health care decisions, and could specify the individual's wishes regarding life-sustaining care, including the individual's desire to have such care withheld or withdrawn, or to forgo resuscitative measures. The California Law Revision Commission proposed new standards and procedures for making health care decisions to promote the use and recognition of advance directives, and to improve the effectuation of patients' wishes once they became incapacitated.⁸ The new Health Care Decisions Law, effective July 1, 2000, subsumed the Natural Death Act and California's power of attorney laws.⁹ Drawing heavily from the Uniform Health-Care Decisions Act,¹⁰ California's law validates the dual practices of (1) giving treatment instructions for a person in a terminal or unconscious condition, and (2) appointing an attorney-in-fact, or agent, to carry out the principal's instructions for health care.

3. Advance Health Care Directive Form

The statutory Advance Health Care Directive form set forth in Probate Code section 4701 permits an individual to name an agent, specify instructions for health care, or both, in a single document. An individual may complete any sections of the form; any section not completed is not given effect.¹¹ Health care providers and institutions are required to comply with an individual's health care instructions and the decisions made by the individual's agent.¹² A supervising health care provider who knows of the existence of an advance directive, or a revocation of the advance directive, must record the existence of the directive in the individual's health care record, and if a copy is furnished, must have it maintained in the individual's health care record.¹³

[Page 41]

Health care providers or health care institutions are not liable for complying with an individual's health care decisions or declining to comply in accordance with applicable law.¹⁴And an agent or surrogate is not liable for health care decisions made in good faith.¹⁵

C. Other Particular Directives 1. Prehospital Do Not Resuscitate (DNR) Form

Probate Code section 4753 et seq., enacted in 1994, defined procedures by which an individual could direct that certain life-sustaining treatments be withheld or withdrawn, and provided protections from penalties for health care providers who honored those directions.¹⁶ The statute described a "request to forgo resuscitative measures" as a written document signed by an individual, or the individual's legally recognized health care surrogate, and the individual's physician.¹⁷ The request to forgo resuscitative measures includes the Prehospital Do Not Resuscitate (DNR) Form developed by the Emergency Medical Services Authority or other substantially similar form. The DNR Form instructs medical personnel to forgo resuscitative measures¹⁸ in the event of cardiopulmonary arrest, or if the person stops breathing. The request to forgo resuscitative measures is also evidenced by a medallion engraved "Do Not Resuscitate" or "DNR" and other information.¹⁹

The DNR Form is an official state document, designed for use in prehospital settings, such as long-term care facilities. Hospitals are encouraged to honor the form if a patient is transported to an emergency department. The DNR Form must be signed by the patient. If the patient is unable to make or to communicate informed health care decisions, the form must be signed by the patient's legal representative, such as a conservator, health care agent designated in a power of attorney for health care, spouse, or other family member. When signing a DNR Form on behalf of a patient, the patient's legal representative acknowledges that the request to forgo resuscitative measures is consistent with the patient's known desires, or if those desires are unknown, is in the patient's best interest.²⁰ The patient's physician also must sign the DNR Form, to affirm that the patient is making an informed decision to limit the scope of emergency medical care, and that the DNR Form expresses the patient's wishes or the decision of a legally recognized health care decisionmaker.²¹

2. Preferred Intensity of Treatment Forms

Other documents describing a "preferred intensity of treatment" or "preferred intensity of care" (collectively, "PIT" forms) are used, generally in skilled nursing facilities, to indicate preferences for an individual's medical care and treatment. A PIT form is generally signed by a physician, but it is not a medical order; it is akin to a doctor's note. PIT forms across the country vary. A standardized PIT form was developed by a group of long-term care physicians, the California Medical Association, the Nursing Home Association, and the Department of Health Services for completion by long-term or acute care facility staff.²² Prior to the POLST, facilities met the requirements of the Centers for Medicare and Medicaid Services for advance care planning for skilled nursing residents by use of PIT or PIC forms.²³ Because the form is not transported with the individual to other places where care may be provided, the instructions in the PIT form may not be carried out.

3. Surrogates

By informing his or her supervising health care provider,²⁴ an individual may designate an adult as surrogate for health care decisions.²⁵ The designation of the surrogate is effective only during the individual's course of treatment or illness, or during the stay in the health care institution when the designation is made, or for 60 days, or for a lesser duration specified by the individual, whichever is shorter.²⁶ During that time, a designated surrogate has priority over the agent designated by the individual in his or her power of attorney for health care.²⁷ The surrogate has the authority to make health care decisions, including the decision to withdraw life-sustaining treatment, and a surrogate may sign a POLST form on behalf of a patient. Whenever a surrogate acts, he or she must make decisions in accordance with the individual's instructions, if any, and other wishes known to the surrogate. Otherwise, a surrogate must make decisions in accordance with the surrogate's determination of the individual's best interest, as determined by considering the individual's personal values.²⁸

D. The Need for a Directive Focused on Patients' Desires for End of Life Treatment

The original intent of advance directives, DNR Forms, and other documents to enable patients to retain control over their care if they lose decision-making capacity is not fully achieved by these traditional methods. Studies have shown that only a minority of American adults have an advance directive, and that these documents have limited effects on treatment decisions near end of life. The preferences for treatment, or withholding treatment, of an individual who has advanced chronic disease, serious illness, or advanced frailty are more adequately expressed in a system of advance care planning and documentation under the...