What is POLST?
POLST stands for Physician’s Orders for Life-Sustaining Treatment. In some states it is called by a different name such as POST, MOLST, MOST, etc.(1) In this discussion all such forms are referred to as POLST.
The POLST is generally a one page, two-sided uniquely identifiable form. It is printed on brightly colored heavy paper – fluorescent pink, bright yellow, or lime green. It is placed in the front of a patient’s medical chart and accompanies the patient when hospitalized, transferred to another facility or discharged.
The form has boxes to check, indicating whether the patient should or should not have cardio-pulmonary resuscitation (CPR), antibiotics, tube feeding, and other medical interventions.
It is a portable medical order that transfers from one setting to another with the patient and is intended to give health care providers immediate information about what interventions should or should not be undertaken.
Where did POLST originate?
POLST originated in Oregon in 1991. As it developed, a national POLST office was set up to support the program. The National POLST Paradigm Task Force (NPPTF) was formalized in 2004 with the goal of establishing quality standards for POLST forms and programs and to assist states in developing such programs.
The Oregon Health & Science University Center for Ethics in Health Care (OHSU CFE) provided the original space and support. Today the program, which remains at OHSU CFE, is completely supported through private philanthropy.(2)
What is the legal status of POLST?
Although POLST is gaining acceptance nationally, its legal status differs throughout the country. Some states have laws (3) addressing POLST while others implement it through regulation.(4)
In addition to states where POLST has been widely implemented, more than twenty other states are currently developing POLST programs.
In its 2014 legislative guide, the NPPTF states that “the development of a POLST Program should be driven by clinical consensus with broad input from the field.” (5) It suggests that this can be be done through a coalition of medical, educational, legal, governmental and non-profit agencies that are focused on advance care or end-of-life issues. Such a coalition would then provide ongoing management and oversight of the POLST program. (6) Oregon used this method when it originated.
According to Jason Manne, J.D., Dr. PH:
Perhaps the most troublesome thing about the POLST legislative guide is its elitist and anti-democratic approach to a significant public policy issue. Rules regarding who can make end of life decisions, and how they are documented, should be made in the open by our elected representatives. Policy formulation is not the province of doctors, and policy decisions should not be made in secret under the guise of calling them the result of “clinical consensus.” (7)
What types of interventions are addressed on POLST forms?
Although the forms vary, the following interventions are among those included on various POLST forms with check boxes to indicate whether they should or should not be provided:
- Cardiopulmonary resuscitation (CPR)
- Artificially administered nutrition and fluids
- Blood transfusions
- Future hospitalization
- Comfort measures only (which orders that even non-invasive curative medical treatment should not be provided)
With the exception of CPR, where time is of the essence, there is no reason to assume that immediate access to decisions about the other interventions listed on the POLST is necessary or advisable.
Furthermore, checking boxes about other interventions essentially controls what attending physicians must do or must not do. Additionally, it circumvents further discussion of what a patient may or may not want, as well as discussions with the patient’s trusted family member or, in some jurisdictions, with a legally authorized health care agent.
It has been referred to by both those who promote it (8) and by those who question the way it is formulated and used (9) as a “living will on steroids.”
When does the POLST form go into effect?
Filled out and signed in advance of any specific medical crisis, the POLST goes into effect immediately regardless of the patient’s mental capacity or state of health.
For whom is a POLST form completed?
As with other elements of POLST, the category of individuals for whom POLST forms are deemed appropriate differs from place to place.
The NPPTF explains that the “form is most appropriate for seriously ill persons with life-limiting or terminal illnesses, or advanced frailty characterized by significant weakness and extreme difficulty with personal activities.” (10) (Emphasis added.) Even though the NPPTF describes those for whom POLST is “most appropriate,” it does not state that it is inappropriate for other individuals. It further notes that it is for individuals with serious illness or frailty whose health care professionals would not be surprised if they died within the next year.(11)
According to Dr. Susan Tolle who is a member of the NPPTF, “The little old lady hunched over their walker, that’s the definition of frailty.” Tolle has acknowledged, however, that the POLST form was being used for others as well. “People are handing out the form a little too early sometimes,” she said. (12)
New Jersey’s law has an extremely expansive definition of those for whom the POLST form is appropriate:
“[P]hysician Orders for Life-Sustaining Treatment form” or “POLST form” means a standardized printed document that is uniquely identifiable and has a uniform color, which is recommended for use on a voluntary basis by patients who have advanced chronic progressive illness or a life expectancy of less than five years, or who otherwise wish to further define their preferences for health care. (13)
Furthermore, the actual NJ POLST form includes goals that the health care professional can use in determining the patient’s preferences. Two of the five suggested goals that health care professionals may want to discuss with the patient are “better quality of life” and “eating, driving, gardening, enjoying grandchildren.” (14)
In practice, there is virtually no limit to the categories of individuals who are considered eligible for POLST.
Who fills out the POLST form?
Generally, articles promoting POLST indicate that the form is filled out and signed by a physician after an in-depth conversation with the patient. (15) However, that is not necessarily true. Few patients have personal family physicians with whom they have lengthy conversations about any topic and often the person who actually fills out the form is not the patient’s physician.
Requirements about who may check the boxes on the form vary from place to place.
Physicians, nurse practitioners, and physician’s assistants are not the only individuals who can fill out the form. Others who actually discuss POLST with the patient and check the boxes on the form include chaplains, social workers, and others, known as “facilitators.”
For example, training programs for facilitators on how to “have the conversation” are carried out in a number of locations. Such training is open to healthcare providers, caregivers, and interested community members. (16)
The Respecting Choices program at Wisconsin’s Gundersen Health System is a national center for training and certification of facilitators. A one-day program, if successfully completed, qualifies a person to be a certified facilitator. An additional day, qualifies one to instruct others to be facilitators. Although a program spokesperson said it is helpful if facilitators have a nursing or social work background, there are no educational or professional prerequisites for such certification. (17)
One facility in California carried out a novel program. To increase the number of patients who had documented their preferences – including having a POLST that would be scanned into the patients’ medical records – a cash incentive was provided to medical residents. If the residents recorded the information for at least 75 percent of discharged patients, they received a cash bonus. Within months, 90 percent of patients’ preferences had been documented.(18)
Does the POLST form accurately reflect the patient’s wishes?
This depends upon the person filling out the form. Some questions must be asked:
- Do the preferences reflect those of the person filling out the form more than those of the patient?
- Was the patient steered toward a particular preference?
- Did the person who checked the boxes correctly interpret the patient’s wishes?
- Did the person providing information about the available options explain them accurately and in a manner that the patient understood?
- Was the patient told that the form would be immediately implemented and, even if the patient could recover, treatments limited by check boxes would not be provided and the patient could die as a result?
- Was the person checking the boxes hurried or not paying close attention?
Who must sign the POLST form?
Depending on the jurisdiction, a physician, nurse practitioner or physician’s assistant signs the completed form.
Is the signature of the patient or the patient’s decision maker required on the POLST form?
Not necessarily. It depends upon the state or on whether the POLST is being used in compliance with legislation, regulations or is based upon a standard of care.
The NPPTF strongly recommends that POLST forms require evidence that the patient or the patient’s decision maker has reviewed the form and agrees that the orders reflect the patient’s preferences. It suggests that evidence of this agreement can exist by means of signature or verbal consent. (19) In Wisconsin where the signature is optional, a study revealed that 95 percent of POLST forms written at hospital discharge were unsigned. (20)
According to the American Bar Association, some states require a patient or decision maker’s signature (21), others recommend, but do not require a signature. (22) One state – Maryland – does not even have a place for the patient’s signature on the form. That state only requires that the form or a copy of it be provided to the patient, health care agent, or surrogate decision maker within 48 hours after it is signed by a physician or nurse practitioner or sooner if the patient is transferred or discharged. (23)
Can a patient be required to have a POLST form?
The NPPTF web site states, “Remember, the use of a POLST form is always voluntary. No state can require that you have a POLST form.” (24) (Emphasis in original.) The web site does not address the fact that patients are often pressured to have a POLST form, just as they are often erroneously told that they must have an advance directive.
From a practical standpoint, patients and, in particular, residents of assisted living facilities and nursing homes are hesitant to show any lack of “cooperation” with requests made of them, and they may be even more reluctant to question the facility’s authority to require a POLST.
A survey of nursing homes in Allegheny County, Pennsylvania found that most of the facilities surveyed presented the POLST form to residents as a requirement and to all residents regardless of medical condition. All of the surveyed facilities had short-term rehab units therefore, even individuals who were only temporarily in them were, in some cases, told they were required to have a POLST form. (25)
Utah and Vermont mandate that the POLST be offered to patients or residents in some facilities. (26) This has led to confusion and has resulted in some facilities assuming that the form is mandated for the patient.
A distinct outlier is Maryland where the state’s law requires that the form be completed for a large number of individuals. (27) The state does not require, or even permit, a patient signature on the form and only requires that patient be given a copy after it is completed.
When a Maryland health care facility completes the form, it must merely offer the patient the opportunity to participate and note in the medical record if such participation is declined. (28) Even if the patient declines, the form is still filled out and entered into the patient’s medical record.
This requirement seems to fly in the face of federal regulations that a hospital has an obligation to honor a patient’s direction of health decisions:
(1) The patient has the right to participate in the development and implementation of his or her plan of care.
(2) The patient or his or her representative (as allowed under state law) has the right to make informed decisions regarding his or her care. The patient’s rights include being informed of his or her health status, being involved in care planning and treatment, and being able to request or refuse treatment. (29)
It is likely that Maryland’s law will be subjected to legal challenges.
How does POLST differ from an advance directive?
- POLST goes into effect immediately, regardless of the patient’s mental capacity.
An advance directive (living will or durable power of attorney for health care) goes into effect only when the patient is unable to make his or her own medical decisions.
- No witnesses are required for POLST.
There are stringent requirements for signing and witnessing advance directives. For example, in a durable power of attorney for health care such as the Patients Rights Council’s Protective Medical Decisions Document (PMDD), (30) one designates a specific individual to make medical decisions on their behalf at any time they are unable to make those decisions for themselves. The document must meet stringent state requirements and must be signed and witnessed or notarized.
If there is a conflict between what is in a patient’s advance directive and the directions in a POLST form, which one takes precedence?
Such conflict is not dealt with in every state’s law, regulation or practice. In those where it is addressed, the majority of jurisdictions give precedence to the most recently executed document. Three states indicate that, where conflict exists, a durable power of attorney for health care takes precedence over POLST and two states give precedence to any advance directive. (31)
How do people with disabilities view POLST?
According to John Kelly, Regional Director of the disability advocacy organization NOT DEAD YET and director of Massachusetts Second Thoughts, some members of the disability community have questions whether POLST is being too broadly applied. Rather than giving people more control over end-of-life medical care, they say that “disabled” could be interpreted to mean “on death’s door.” (32)
Kelly described an instance of the pressure on people with disabilities to have a POLST form. He explained that his nurse brought him the Massachusetts form and told him that she had been told that she was to complete the form for every disabled person she followed. (33)
How does the POLST form differ from other medical orders?
A medical order has generally been considered to be an order by a specifically identified practitioner for a specifically identified patient for the specific patient’s health care need. Such an order is ordinarily carried out by the health care facilities where the signing physician has admitting privileges.
However, the POLST form is signed by a health care provider before a medical crisis and continues in effect. It is transferable to all medical settings and is intended to be followed even though the signing physician may not have privileges at the facility where the patient is currently located.
More than thirty years ago the President’s Commission for the Study of Ethical Problems in Medical and Biomedical and Behavioral Research issued a report titled, Making Health Care Decisions: The Ethical and Legal Implications of Informed Consent in the Patient-Practitioner Relationship (1982). That report stated:
[A]professional’s careful choice of words or nuances of tone and emphasis might present the situation in a manner calculated to heighten the appeal of a particular course of action.
It is well known that the way information is presented can powerfully affect the recipient’s response to it. The tone of voice and other aspects of the practitioner’s manner of presentation can indicate whether a risk of a particular kind with a particular incidence should be considered serious. Information can be emphasized or played down without altering the content. And it can be framed in a way that affects the listener – for example, “this procedure succeeds most of the time” versus “this procedure has a 40 percent failure rate.”
…Because many patients are often fearful and unequal to their physicians in status, knowledge, and power, they may be particularly susceptible to manipulations of this type. (34)
The Commission’s observation about voluntariness in decision-making is as timely today as it was thirty years ago and should be carefully considered when evaluating the use of POLST.
1. Among the different names used in referring to POLST (Physicians Orders for Life-Sustaining Treatment) are:
MOST (Medical Orders for Scope of Treatment) in Colorado and North Carolina;
POST (Physician Orders for Scope of Treatment) in Idaho, Indiana, Iowa, Tennessee and West Virginia;
LaPOST (Louisiana Physician Order for Scope of Treatment) in Louisiana;
MOLST (Medical Orders for Life-Sustaining Treatment) in Maryland, New York and Rhode Island;
POLST (Practitioner Orders for Life-Sustaining Treatment) in New Jersey;
POLST (Pennsylvania Orders for Life-Sustaining Treatment) in Pennsylvania;
COLST (Clinician Orders for Life-Sustaining Treatment) in Vermont;
IPOST (Iowa Physician Orders for Scope of Treatment) in Iowa;
TPOPP (Transportable Physician Orders for Patient Preferences) in Kansas and Missouri.
2. Oregon Health & Science University, “Physicians Orders for Life-Sustaining Treatment Paradigm,” (http://www.ohsu.edu/xd/education/continuing-education/center-for-ethics/ethics-programs/polst.cfm). Last accessed March 6, 2014.
3. CA, CO, GA, HI, ID, IL, IN, IA, LA, MD, NV, NJ, NY, NC, RI, TN, UT, VT, WA and WV address POLST through legislation.
ABA Commission on Law and Aging, “POLST Program Legislative Comparison – as of 1/1/2014,” (http://www.americanbar.org/content/dam/aba/administrative/law_aging/2014_POLST_Leg_Chart_Dec_20143-column.authcheckdam.pdf). Last accessed March 4, 2014.
[Hereafter cited as ABA Commission on Law and Aging.]
4. MT and OR address POLST by means of regulation.
ABA Commission on Law and Aging.
5. NPPTF, 2014 NPPTF POLST Legislative Guide, February 28, 2014, p. 1.
[Hereafter cited as NPPTF POLST Legislative Guide.]
6. NPPTF POLST Legislative Guide, p. 13.
7. Jason Manne, “Task Force says state POLST legislation is not needed,”
(http://polst-views.blogspot.com/2014/03/task-force-says-state-polst-legislation.html). Last accessed March 5, 2014.
Manne is a practicing attorney and independent scholar who holds a doctorate in public health. His master’s thesis in bioethics and his doctoral dissertation were on the POLST. He supports the POLST but contends that the form poses a risk of unintended death and is being improperly urged upon individuals who ought not have one. He advocates for additional research and ongoing evaluations to validate that the form accurately reflects authentic and stable treatment preferences of patients who use the POLST.
8. Senior Citizen’s Guide to Baltimore, “MOLST: Your Living Will on Steroids,” (http://www.seniorcitizensguide.com/articles/baltimore/medical-orders-life-sustaining-treatment.htm). Last accessed March 5, 2014.
9. Bioethicist Christian Brugger, Ph.D. is among those who describe POLST as a “living will on steroids.” He is an author of an in-depth examination of POLST (Brugger et al., “The POLST paradigm and form: Facts and analysis,” The Linacre Quarterly 80 (2) 2013, 103-138).
10. NPPTF, “FAQ,” (http://www.polst.org/advance-care-planning/faq). Last accessed December 4, 2013. [Hereafter cited as NPPTF, “FAQ.”]
11. NPPTF POLST Legislative Guide, p. 10.
12. Nancy Shute, NPR, “After Cranberries and Pie, Let’s Talk About Death,” November 28, 2013. (http://www.npr.org/blogs/health/2013/11/28/247332918/after-the-cranberries-and-pie-lets-talk-about-death). Last accessed December 4, 2013.
[Hereafter cited as Nancy Shute, NPR.]
13. N.J.S.A. 26:2H-131.
14. New Jersey POLST Form, p. 2, section A, Directions for Health Care Professionals, (http://www.goalsofcare.org/polst-form). Last accessed March 3, 2014.
15. NPPTF states, “Conversation about the patient’s goals is fundamental to the POLST Paradigm. Ideally, a patient and his/her health professional have been talking about the patient’s values and about advance care planning throughout their relationship.” NPPTF POLST Legislative Guide, p. 5.
16. See, for example, the information on Facilitator Certification from Wisconsin’s Gundersen Health System, (http://www.gundersenhealth.org/respecting-choices/certification). Last accessed March 3, 2014.
Minnesota’s Twin Cities Medical Society information regarding Advance Care Planning Facilitator Training, (http://www.metrodoctors.com/dev/index.php/honoring-choices-mn/hcm-events-trainings/132-advance-care-planning-facilitator-training). Last accessed March 3, 2014.
17. Telephone confirmation of requirements of Respecting Choices program for those seeking facilitator certification, March 3, 2014
18. Paula Span, “A Novel Way to Document End-of-Life Preferences,” New York Times, July 25, 2013 (http://newoldage.blogs.nytimes.com/2013/07/25/a-novel-way-to-document-end-of-life-preferences/?_r=1). Last accessed March 5, 2014.
19. NPPTF POLST Legislative Guide, p. 16.
20. Hickman, Susan E., “Use of the Physician Orders for Life-Sustaining Treatment Program for Patients Being Discharged from the Hospital to the Nursing Facility,” Journal of Palliative Medicine. (Epub ahead of print, doi:10.1089/jpm.2013.0097, p. 4).
21. CA, CO, GA, HI, ID, IL, IN, IA, LA, MT, NC, NV, NJ, PA, RI, UT, WA and WV require the patient’s or decision maker’s signature.
ABA Commission on Law and Aging.
22. MD, MN, NY, OR, TN and VT do not require the patient’s or decision maker’s signature.
ABA Commission on Law and Aging.
23. MD Health Gen. § 5-608.1(e) (3).
24. NPPTF, “FAQ,” Emphasis in original.
25. Jason W. Manne, “Physician Orders for Life Sustaining Treatment (POLST): How Do Nursing Facilities Implement the POLST Program?” (2012), p. 77 and 82.
(http://d-scholarship.pitt.edu/16924/1/mannej_etd2012.pdf) Last accessed November 15, 2013.
26. ABA Commission on Law and Aging.
27. In Maryland, facilities have a duty to complete the MOLST form for residents of nursing homes, assisted living programs, kidney dialysis centers, home health agencies and hospices. Hospitals must complete the form for patients who will be transferring to such facilities or to another hospital.
ABA Commission on Law and Aging.
28. MD Health Gen. § 5-608.1(c) (2) (i and ii).
29. 42 C.F.R. § 482.13.(b). (http://www.gpo.gov/fdsys/pkg/CFR-2007-title42-vol4/pdf/CFR-2007-title42-vol4-sec482-13.pdf ). Last accessed March 4, 2014.
30. The PRC’s durable power of attorney for health care, called the Protective Medical Decisions Document (PMDD), can be obtained by calling the PRC (800-958-5678 or 740-282-3810) between 8:30 am and 4:30 pm (eastern time).
31. “POLST Program Legislative Comparison,” ABA Commission on Law and Aging, American Bar Association, February 15, 2016.
Available at: http://www.americanbar.org/content/dam/aba/administrative/law_ agingPOLST_Legislative_Chart.authcheckdam.pdf.
32. Nancy Shute, NPR.
33. Not Dead Yet, “John Kelly’s Response to IOM Online Survey or ‘We Love Our Tubes,'” November 7, 2013, (www.notdeadyet.org/2013/11/john-kellys-response-to-iom-online-survey-or-we-love-our-tubes.html). Last accessed December 4, 2013.
34. President’s Commission for the Study of Ethical Problems in Medical and Biomedical and Behavioral Research, “Making Health Care Decisions: The Ethical and Legal Implications of Informed Consent in the Patient-Practitioner Relationship, (1982), p. 67. (http://bioethics.georgetown.edu/pcbe/reports/past_commissions/making_health_care_decisions.pdf ). Last accessed December 2, 2013. (Page 67 of report can be found on page 81 of pdf document.)
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