Saturday, June 15, 2013

POLST Authorizes Unilateral DNAR Orders

In both Maryland and Vermont, a clinician can write a POLST order indicating "no CPR" even without patient or surrogate consent.  Regulations in both states authorize the entry of a "do not attempt resuscitation" order on a POLST on the basis that CPR would be "futile" or "medically ineffective."  This "no consent" option is clearly printed right on the POLST form.

California law similarly provides that while "a health care provider shall treat an individual in accordance with a POLST form," that requirement "does not apply if the POLST form requires medically ineffective health care or health care contrary to generally accepted health care standards applicable to the health care provider or institution."  But unlike Maryland and Vermont, the "no consent" option is not printed on the POLST form itself

Nevertheless, this has not prevented California providers from utilizing this option.  For example, Dominican Hospital in Santa Cruz, rewrote a patient's POLST contrary to his prior expressed wishes, apparently on the ground of medical ineffectiveness.  Of course, since the patient was unbefriended / unrepresented, there was little risk that such a decision would be challenged.  It is unclear that clinicians would rewrite a POLST on grounds of ineffectiveness in the face of surrogate opposition.   

Many states have long allowed clinicians to unilaterally refuse (surrogate-, agent-, or surrogate-requested) treatment that is "medically ineffective" or that is "contrary to generally accepted health care standards."  But since there is significant uncertainty about when those standards are satisfied, clinicians have generally declined to avail themselves of such safe harbors.  It is unclear, yet, whether analogous POLST safe harbors will be any more effective.

9 comments:

Judy Citko said...

Please note that in California, a POLST form must be signed by both (1) the patient or their decision maker, and (2) a physician. CA Probate Code Section 4780. If it does not have both signatures, it is not a legally valid POLST.

Thaddeus Mason Pope, J.D., Ph.D. said...

Thank you, Judy. That is a good distinction.

Maryland and Vermont permit the issuance of a POLST with a DNAR order on the basis of ineffectiveness - ex ante.

California does not do that. A California POLST always needs consent (patient/surrogate signature).

Instead, what California law does is excuse, on grounds of ineffectiveness, the clinician's obligation to comply with a POLST indicating CPR.

So, California has no ex ante unilateral DNAR. It just permits noncompliance with POLST at the moment a requested intervention becomes relevant.

Note though that the California excuse applies to ANY order on the POLST and not just CPR like MD and VT.

Also, it seems that an ex ante judgment could be made that an intervention would be ineffective. While an altogether new POLST could not be written, the physician could leave internal to the facility instructions for DNAR.

Anonymous said...

To get an oil change at my Maryland car dealership I have to sign a consent form, but for matters of life-and-death my doctor’s word is good enough (Maryland’s MOLST and DNR forms requires only that a doctor certify that there was a discussion). Casting no aspersions on doctors’ honesty or motivation, one would think that forms of such import would require a patient’s signature just to be on the safe side.

I have little doubt that requiring my signature would have prevented what happened to my father at a Maryland hospital (see holycrosshealth.com).

Anonymous said...

In Response to the writer, above. I agree with your comments but there is no way to reach you once one gets to holycrosshealth.com

You have my sympathy over what happened to your Father. I also had a horrible experience with a covert DNR put into my elderly husband's chart to shorten his life to hide a mistake, an error, that the hospital and treating physician knew would not be reimbursed by Medicare and Tricare for Life.

Because of CMS and big Private Insurance Reimbursement Protocols of the past ten years, physicians/hospitals take a calculated risk in treating the elderly and rationalize that the elderly are better off dead if there is any chance that they will become "charity" patients of the hospitals.

This, of course, is against the law but the law turns its back on this worst kind of elder abuse ---which is against the law and would be treated as a crime in many States ---but, of course, is never prosecuted.

Apparently, it is just easier and more profitable for the powers that be who run the nation's hospitals to kill the very elderly to make sure they will not end up dying in their ICUs in violation of public policy goal of the 1991 Patient Self Determination Act that envisions that the elderly will die in their own residences or nursing home residences at much less expense to Medicare and it's private partners, Big Insurance. .

It is not an accident that there are NO PROCEDURAL protections against NO CPR and DNR code status being unilaterally and overtly and covertly placed in the hospital charts of the elderly on Medicare and Medicaid.

Our country has lost its soul!

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