The Problem with POLST
Over the years, informed consent has been given short shrift. There is, however, a growing understanding of the importance of obtaining an actual and legitimate consent before having a patient accept or reject medical treatment. Autonomy, transparency, respect, dignity, and other similarly recognized human rights are increasingly recognized as legal and ethical requirements. “POLST” (Physician Orders for Life-Sustaining Treatment) however, makes it easy and even inviting to avoid these requirements with the stroke of a pen on a conclusionary form.
POLST only makes sense in cases of patients with terminal illnesses, in end stage disease with no real options. By that point in time there are no therapeutic treatment decisions to be made. Yet, a patient who is under treatment who is living with a disease, there are alternative treatment decisions to be made. There are risks to weigh and an up to date informed consent required. It cannot be left up to a patient to research new literature and evidenced based medical standards.
POLST even precludes an assessment by a paramedic to make any decisions on overall survivability at the time of emergency care in the field. Surrogate decision makers are not consulted, advance health directives are not read or considered, and second opinions are not sought. Intelligent and experienced assessments are precluded by POLST. In cases of non-terminal patients POLST does not respect society’s moral mandate to respect life and instead treats life cavalierly by simply pinning a card on a person’s chest with life and death decisions of timely and clear origin.
As the degree of illness moves further away from end stage disease with death likely within a short time the level of scrutiny for withholding life-sustaining treatment must increase. Such scrutiny is precluded by the use of POLST. The law permits a person the right to refuse medical treatment. Yet in order to do so it must be shown that the patient has been told of her diagnosis, prognosis, and alternative methods of treatment and the concomitant result of refusing treatment. This protects the patient and also protects physicians from risks of liability. Decisions are well thought out and recorded in the medical record of the patient. An open-ended document with no protections for the patient and added risk to physicians is needless and ill advised.
In many instances the law requires clear and convincing evidence of a patient’s wishes before the withdrawal of life sustaining treatment. POLST alone is not clear and convincing evidence. It is cursory and conclusionary. POLST overrules and supersedes such legal requirements by a simple check mark and brief statement to be interpreted by a paramedic unaware of the patient’s overall medical condition. Choices made under a POLST carry a high risk of error and are subject to abuse and undue influence. POLST makes it easy for physicians to avoid having ongoing discussions with their patients about end of life care. POLST also makes it easy for patients to make quick choices based upon the tenor of the presentation of those choices by physicians or other medical care personnel.
POLST should, therefore, be limited to terminally ill patients with a life expectancy, based upon reasonable medical probability, of a maximum of 6 months. Yet that alone is not sufficient.
If POLST is to be used it must contain the following:
- The authorizing physician must:
- Be the patient’s primary care physician sufficiently familiar with the patient’s diagnosis and prognosis and must certify that the patient has the capacity to evaluate and understand the nature of his or her illness and able to make an informed decision;
- Certify that the patient, within reasonable medical probability is terminally ill, in end stage disease and is likely to die with 6 months:
- Advise the patient of the alternative option of using an advance health directive to clearly set forth his or her wishes and instructions;
- Certify that the he or she has reviewed with the patient the range of treatment options including the availability of palliative care and the right to have life sustaining treatment withdrawn even after it has been started;
- Sign the POLST form certifying under penalty of perjury that the above requirements have been met;
- The POLST form must be;
- Updated every 90 days or become void; (stating in large print an expiration date).
- Both the patient’s and the physician’s signatures must be either Notarized or Witnessed by two individuals who are not entitled upon the patient’s death to any portion of the estate, life insurance or assets of the patient under any will or trust, by operation of law, or by contract and is not an owner, operator, or employee of a health care facility, nursing home, or residential care facility where the patient is receiving medical treatment or is a resident.
- Require certified emergency medical personnel to sign off on the form indicting that they have read the entire POLST form and complied with instructions.