POLST: When “Doctor’s Orders” Mean Death

Last April I attended a community forum on the topic of “Health Care Decisions at the End of Life,” conducted by medical professionals from a local hospital. One of the presenters, a board-certified specialist in hospice and palliative care, devoted her talk to the POLST form.

POLST, an acronym for “Physician’s Order for Life-Sustaining Treatment,” is the latest development in end-of-life planning.1 Unlike an advance health care directive, durable power of attorney for health care, or living will, which are legal documents that may ultimately never be seen by a doctor, the POLST is, as the name states, an order signed by a doctor and kept in the patient’s records, as well as in other locations.

The POLST form, the doctor explained, is intended for people who are terminally ill or are seriously ill with chronic, debilitating conditions, and who are getting worse, not better. If a doctor’s overall assessment of such a patient’s condition is that the doctor would not be surprised if this patient died within a year, then the patient should be offered a POLST form.

The POLST is a simple two-sided form printed on bright pink cardboard to make it easy to spot, whether in a medical record or taped to a kitchen cupboard. When, for example, emergency medical personnel are called to a home, they can see at a glance if there is a POLST form and quickly determine whether the person has asked not to be resuscitated if he is not breathing or has no pulse. (Although the form allows the signer to choose in a range from no efforts to resuscitate [DNR] to full treatment, the presumed course for medical personnel is to resuscitate in the absence of contrary instructions. Thus, there is no reason to complete a POLST unless one wants to refuse CPR and/or other life-saving interventions.)

That’s the POLST in theory: a means of ensuring that a terminally or seriously ill and debilitated patient’s wishes are followed when cardiac arrest or other life-threatening episode occurs at home or during a transfer between facilities, where the patient’s advance health care directive is not readily accessible to those who need to act immediately.

Unfortunately, the POLST in practice is far different.

At the community forum mentioned above, the doctor emphasized, several times, the limited applicability of the POLST: it’s for terminally or chronically ill people who could easily die within a year. Meanwhile, staff members at the forum were busy distributing POLST forms to every person in the room. Someone in the audience asked a question that indicated that POLST forms were part of the hospital’s standard admission packet. As I left the room, I saw stacks of POLST forms sitting on a table for people to take home with them.

Four years ago, California Advocates for Nursing Home Reform (CANHR) released a report sounding the alarm on the implementation of the law creating POLSTs (in California, Probate Code §§4780-85), particularly in the setting of nursing homes and convalescent hospitals. [See CANHR white paper.]

Among the most significant findings were:

  • Seventy-three percent of surveyed nursing home ombudsmen reported that nursing home residents are “always” or “often” told that POLSTs are mandatory, regardless of their health.
  • While the POLST law requires a health care provider to explain the form and contemplates a physician discussing treatment options with the patient, in nursing homes 57% of POLSTs are believed to be completed by non-health care professionals such as admission coordinators and business managers.
  • Although the POLST law says the form is intended to “complement” a full advance health care directive (AHCD), POLST forms are frequently presented to individuals as replacing AHCDs, leading them to believe that there is no reason to execute the more thorough AHCD.
  • While POLST forms are intended to ensure the patient’s wishes are respected, frequently in nursing home settings the POLST form is presented to a family member for his or her signature, even when the patient still has legal capacity to make decisions.

The last point is particularly troubling because the POLST law provides that, in the case of a conflict between instructions in an AHCD and in a POLST, the latter in time prevails. Thus, an individual who has documented explicit instructions for his care in an AHCD or has appointed a health care proxy who knows his wishes could nonetheless end up having those wishes overruled by another family member or other person deemed by the physician to “best know what is in the patient’s best interests.” This could occur even while the patient still has legal capacity to make decisions for himself.

Although the CANHR report dealt only with the use of POLST in long-term care facilities, the same problems, and more, can be seen in other settings.

The primary problem is, as noted above, the ever-widening circle of those prompted, urged, or compelled to sign the form. Contrary to the stated intent of the originators of the POLST paradigm, a POLST is now frequently seen as a substitute for an advance health care directive. The standard POLST form itself contributes to this problem, by having boxes to check regarding long-term care issues such as artificially provided food and fluids. POLST is presented as a prudent measure to people who aren’t even sick, much less terminally or chronically ill.

The same “at a glance” simplicity that makes the POLST form desirable in an emergency is also what makes it unsuitable to replace an advance health care directive, including the appointment of a health care proxy to make decisions should the patient become incapacitated. Decisions about what medical treatments and care are necessary or appropriate are best made in real time in the context of concrete circumstances, not through checking boxes on a form in a decision-making vacuum.

Indeed, checking the boxes in a factual vacuum leaves one highly susceptible to suggestion by those “facilitating” the process of filling out the form. Even patients considering what treatment they want in the context of specific health issues give widely varying responses depending on how the treatment and the expected outcome are described. For example, if a treatment is described in terms of success/failure rate, providing the success rate (e.g., 40% chance of improvement) will lead to more favorable responses than citing the failure rate (e.g., 60% chance of no improvement). The CANHR Report noted that the handouts that frequently accompany the presentation of POLST forms are “clearly intended to convince patients or their representatives to forego CPR.”

Even more difficult is predicting what our wishes and reactions will be when faced with unfamiliar situations: “There is . . . an extensive body of research showing how poor we are at predicting our own preferences and desires, especially in regard to choices far off in the future. This inability is likely to be acutely present here, since we have no experience deciding how and when to die” (President’s Council on Bioethics [2005]. Taking care: ethical caregiving in our aging society, p. 74. The POLST paradigm was prompted by a perceived need to protect terminally and chronically ill individuals nearing death from undergoing unwanted and burdensome medical treatments. Unfortunately, its execution has been diverted into the service of a different agenda, that of streamlining the process for people in all conditions and stages of life to make a hasty, premature, and uninformed decision to forego medical care that could save their lives.

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1 In some states, POLST may go under other names, e.g., MOLST (Medical Orders for Life Sustaining Treatment), POST (Physician Order for Scope of Treatment), or COLST (Clinical Orders for Life Sustaining Treatment).

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This article originally appeared in Lifeline (Summer 2014).

Author: Life Legal

The Life Legal Defense Foundation is a non-profit law firm that specializes in the defense of vulnerable human life, especially life in the womb.