December 01, 2009

In the past decade, many states have authorized new advance care planning instruments such as Physician Orders for Life-Sustaining Treatment (POLST), Medical Orders for Life-Sustaining Treatment (MOLST), Physician Orders for Scope of Treatment (POST), and Medical Orders for Scope of Treatment (MOST). Because these forms are physicians' orders, they have legal authority to direct actions of emergency first responders and other medical personnel. The forms might also stimulate discussions that lead to prudent decision making about end-of-life treatment choices.

But do they also have a downside? Could they be abused? In other words, are current safeguards adequate to protect the vulnerable population of patients that POLSTs are designed to serve?

I think not, for several reasons that I will explain after I present an illustrative story. As you read it, ask yourself how fictional this account might be.

 

 

The Sooner She Dies, the Better

Twins “Annette” and “Nannette,” aged 48 years, are the only children of “Martha,” an 87-year-old widow who suffers from moderate dementia and resides in a skilled nursing facility in California. Martha occasionally joins in sing-a-longs, and she usually knows her daughters' names. Yet, she spends most of her time just staring into space.

The twins agree: “Mom's quality of life is so poor. … What a waste of money. This facility costs us $60,000 a year, plus another $20,000 for extra care and treatment.” (By “costs us” they mean “drains our future inheritance.”) They conclude: “The sooner Mother dies, the better.”

In strict confidence, they frankly explain their concerns to an attorney. After they show him Martha's living will, he concludes: “Worthless. 'No heroics if my condition is hopeless' is vague. You will just have to wait for her to die. You can't create a new living will because she no longer has mental capacity. And you can't create a new directive that designates one of you as the proxy that the other witnesses, since both of you are heirs to her estate. Furthermore, since your mother is a resident of a skilled nursing facility, state law requires an extra witness—an ombudsman—to make sure her signing is voluntary, willful, and informed.”

The sisters give up. Then Annette recalls a physician whom she dated a few years ago and who is still a friend. She calls “Dan” to explain: “Martha has deteriorated a lot since you last saw her. You know she wouldn't want to be hooked up to machines indefinitely, but an attorney said her living will is worthless since it was so badly written. Could you do her a favor by coming over to sign some orders?”

Dr. Dan agrees. In the privacy of Martha's room, he points to Annette and asks Martha who she is. She replies, “My daughter.” Then he asks Martha if she wants Annette to make her medical decisions. She says, “Yes.” He repeats the process for Nannette.

Dan completes the POLST by asking the twins what their mother's preferences are. Then he signs under this statement: “My signature below indicates to the best of my knowledge, that these orders are consistent with the person's medical condition and preferences.” A brief thought flashes through his mind: “I never asked Martha what her specific wishes are. But there's no reason to, since she just clearly designated her two daughters as her proxies.”

Dan passes the form to Nannette. She signs without reading the statement that applies to her signature: “By signing this form, the legally recognized decision maker acknowledges that this request regarding resuscitative measures is consistent with the known desires of, and with the best interest of, the individual who is the subject of the form.”

Meanwhile Annette has been holding her breath. She looks at her mother. As usual, she seems “out of it.” Annette sighs as she thinks: “The stage is now set: If mother has a problem with heart rhythm, contracts pneumonia or a urinary tract infection, or needs a feeding tube—then Nannette or I can use this POLST to refuse all life-sustaining medical treatment and she will die sooner. Mission accomplished.”

 

 

Three Weaknesses of POLST Forms

 

 

Conflict of Next of Kin: Certain sections of California's probate law about advance directives are specifically designed to protect patients. For example, if the creator of a proxy directive is worried about a very greedy child or an extremely religious sister, she or he can disqualify these individuals by writing their names in the appropriate place on an advance directive. While other states might not explicitly provide this option, to my knowledge no state law forbids such exclusions. The power to authorize a legally designated agent/proxy includes the power to deny such authorization.

In contrast, the National POLST Paradigm Initiative Task Force posts this statement on its Web site: “Family members may be able to speak on behalf of a loved one. A health care professional can complete the POLST Paradigm form based on family members' understanding of their loved one's wishes” (downloaded Oct. 15, 2009, from

www.ohsu.edu/polst/patients-families/faqs.htm

The bottom line: POLST forms do not provide adequate safeguards for next of kin who may have a conflict of interest.

Signatures and Witnesses: Some states (including Oregon) require neither the patient's nor the proxy's signature on POLSTs. California's 2009 POLST form does not require the patient's signature. Of course, only competent people can sign documents. Yet if patients' competency were required to create POLSTs, huge numbers of frail and demented patients would never qualify.

Like many POLSTs, California's does not require witnessing. On the other hand, several states' advance directive regulations require ombudsmen to serve as additional objective witnesses when skilled nursing residents sign advance directives. All ombudsmen must be volunteers so they will not have conflicts of interest. Yet they have a high turnover rate and tften are hard to find.

The laws authorizing POLSTs in several states, including California, make this clear distinction: POLSTs are NOT advance directives. Two reasons for this “proclamation” may be to enable end-of-life planning for patients who no longer have capacity and to bypass the extra requirement for witnessing by ombudsmen. Bottom line: Eliminating the safeguard of witnessing a competent patient's signed expression of his or /her end-of-life wishes opens the door to possible abuse.

POLSTs Can Supersede Patients' Wishes: If a patient has both a POLST and an advance directive, the laws of some states, including California, require health care providers to honor the most recently dated document. According to attorney Michael S. Evans, MSW, JD, a newer POLST could override a patient's prior advance directive—even after much diligent thought went into creating a document that truly reflected the then-competent patient's enduring wishes.

In any unwitnessed doctor-patient interview, the physician has much power as he or she checks off the boxes on the POLST form and signs the orders. Rather than express the patient's wishes, the resulting set of physician orders could end up reflecting the physician's values or those of a legally recognized decision maker who has a conflict of interest. Some physicians also may be consciously or unconsciously biased. For example, they may write or rewrite certain orders so that they are consistent with the policies of the hospital or the institution that provides them a place to make an income. Bottom line: POLSTs can threaten the durability of advance directives.

 

 

A Solution to This Challenge

Requiring qualified witnesses for a competent patient's signature provides an important layer of protection for vulnerable persons who engage in advance care planning. Requiring ombudsmen to provide oversight in nursing homes provides another. Yet neither is required for POLSTs to become effective. The consequence of not requiring the witnessing of the competent patient's signature could be an affront to the sanctity of life; it might even be seen as an abdication of the duty of government to protect its most vulnerable citizens from the worst kind of abuse—premature death.

What safeguard is best against this most serious of pitfalls? In my opinion, it begins with advance care planning when the patient still possesses decision-making capacity for choosing end-of-life treatment options. The laws of most states require physicians to abide by the patient's “known wishes” if they are available. One way to make them available is to create a “durable power of attorney for health care” that includes details about the patient's specific preferences or refers to these instructions in an attached document. Patients can wear DNR medallions that also alert health care providers that their known wishes are available by fax or Internet download from a national registry.

While they are safer, advance directives do not have the authority of physician's orders. They should therefore be attached to POLSTs or similar forms. Combining both documents can achieve both authority and durability for the patient's wishes. Hopefully, this solution will prevent plans similar to the sinister one designed by Annette and Nannette.

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