“If You’re Caring for An Individual with Advanced, Irreversible Illness, Consider an Advanced Directive and POLST”

Marshall P. Kapp outlined four potential problems with Advance Directives (AD) for individuals with advanced, irreversible illness in his recent Hamline Law Review article: The Nursing Home As Part Of The POLST Paradigm.  These problems may cause patients, their families, and caregivers to experience a vast difference between care the patient actually receives and their wishes and values previously expressed in their AD. The article advocates adding a POLST form (Physician Orders for Life-Sustaining Treatment) to the list of health care planning documents to potentially improve the care for these individuals as “a more uniform, comprehensive, and portable method of documentation of patients’ end-of-life treatment desires.” The POLST is suggested as a supplement to the ADs executed while the patient is still capable of making decisions on their own.

Four potential problems with ADs:

1. Many patients don’t have an AD. Many people resist thinking about extended illness and death. And, often, by the time a terminally ill patient ends up in a medical facility, their ability to make their own decisions is already compromised, and precludes them from making an AD at this point.
2. Sometimes the instructions in an AD are unclear and open to interpretation.  If an AD is written badly, or if it is written so broadly or open-ended that it is unhelpful to health care providers or surrogate decision-makers who have to apply those instructions, the function of the AD is lost.  Since there is no unified understanding, there can be no unified effort.
3. ADs don’t always follow the patient from one facility to another.  “In theory, AD’s are meant to be patient-specific rather than place-specific, but in practice they often become lost or forgotten when the individual is transferred to a different setting….”  (M. P. Kapp)
4. Physicians are protected, by right of personal conscience, from getting sued for not carrying out the specific wishes of an AD, as long as they don’t impede efforts to transfer a patient to a facility willing to carry out those wishes.  This comes as a surprise to many, but there is a strong interest in protecting the physician’s conscience as well as the patient’s right to choose their end-of-life treatment.

The POLST, unlike the AD, is a physician’s written order, made in agreement with either the patient herself or the patient’s surrogate. It is a short, quick-read, uniform guide (each state decides on its format and color) that instructs emergency medical personnel and other health care providers about treatment of this patient under specific circumstances. The patient or the patient’s surrogate decision maker (agent), in consultation with the physician, and with the patient’s wishes and values in mind, creates the order that can easily travel with the patient in recognizable form. It is not meant to be used “instead of” but rather “in addition to” the AD. The POLST is meant to confirm the AD, to increase communication among health care professionals of all kinds, to lessen interpretive error, and to increase the portability of information. In short, it gets everyone on the same page quickly, easily, and with a trustworthy, recognizable form and content.

So, do you go out and get one now?  No, not unless you or your loved one is suffering from an advanced and irreversible illness. ADs and the important discussions they often bring are invaluable, and are still considered paramount in any advance planning efforts. But, when the time comes for your wishes or the wishes or your loved one to be exercised, consider supplementing the AD with a POLST that may support those wishes and confirm those choices.

ALL READERS:  This blog is not, nor shall it be deemed to be, legal advice or counsel. This blog does not create an attorney-client relationship with any reader.  It is designed to encourage thoughtful consideration of important legal issues with the expectation that readers will seek professional advice from a licensed attorney.