Be Careful What You Sign
By Germaine Wensley RN

Abrightly-colored (usually pink) document, POLST, has exploded onto the health-care scene across the nation. It was initially developed in Oregon by a task force convened by the Center for Ethics in Health Care at Oregon Health & Science University as a complement to an advanced directive, but it can also function alone. It was recommended for people of any age with advanced, progressive serious illness or frailty to ensure their wishes regarding health decisions toward the end of life are known. This one page, two-sided, pre-printed form provides boxes for various options of care or non-care to be checked off. Options include whether CPR should be attempted, IV fluids or antibiotics given, mechanical ventilation or intubation should be used, and whether to provide “artificial” nutrition.¹ This simple form was intended to make it easier for health care providers to quickly see a patient’s desires since the form is frequently found at the front of a patient’s chart. Many states have followed Oregon’s lead and developed similar programs which may go by other names such as Physician Orders for Scope of Treatment (POST), Medical Orders for Scope of Treatment (MOST) or other similar names, and the form varies slightly from state to state. In California, POLST began as a seven community pilot project in 2007 and has been used statewide since January 1, 2009. (CA POLST form can be viewed at: http://www.capolst.org/documents/CAPOLSTform2011v13web_005.pdf)

It must be pointed out that this simplified form, after being filled out and signed by a physician, immediately becomes a valid, actionable, medical order carrying all the authority of a physician’s order, to be followed by all healthcare providers. In addition to the physician’s signature and depending on the state in which the form is generated, it must also contain the signature of the patient, guardian, legal surrogate, or “legally recognized decision maker” even though the law doesn’t define what a “legally recognized health care decision maker” might be. The form is devised to be portable and travel with the patient through various health care settings. But problems in travel could arise because the POLST has been signed by a physician who may not be present at the time of implementation, and judgments of the medical team on the scene are essentially disregarded.

As benign as the name, Physician Orders for Life Sustaining Treatment, might sound, the POLST form is now being hotly debated. Advocates consider the document to be an important instrument giving patients greater control over care at the end of their life, but critics worry about abuse and the possibility that it could easily be used to expedite death and/or advance euthanasia. Some critics also say it is difficult for patients to make changes in the document if they have a change of mind regarding any of the options.

Lois R. Robley RN, PhD, views POLST as a real help for nurses, particularly in the critical care setting. Robley says many difficulties have been encountered with advanced directives. In comparison to other advanced directives, POLST is a simple form that makes it easier for nurses to follow patients’ wishes.² It is no doubt true that the form makes it easier for nurses and other caregivers to clearly see at a glance the patient’s supposed preferences, however, it appears most of the real problems with the form begin before it reaches the health care provider. It has to do with the form itself, the facilitator filling out the form, and the way options are presented to the patient. It might do well for a nurse caring for someone with a POLST form, to do her own verification that what is on the form is correct, if the patient is able to provide the information, or perhaps check it against an advanced directive if available.
Compassion & Choices, a pro-euthanasia organization generated by a merger of the Hemlock Society and Compassion in Dying, is an avid advocate of the form. They say POLST is an important document because most medical personnel, especially in an emergency situation, will most likely give the patient all possible treatments whether the patient wants them or not. That a pro-euthanasia group is very enthusiastic about this document gives one pause for thought.

California Advocates For Nursing Home Reform (CANHR), a non-profit advocacy group, published a brief on California POLST which included a survey of Long-term Care Ombudsmen. Their brief lists several advantages of POLST. It is easily identified with its brightly colored paper, the form is reader friendly, contains more specific information about end-of-life-care than the standard advanced health-care documents, and may be more available than an advanced directive since it is meant to be included and highly visible in a patient’s medical chart.³

On the other hand CANHR cites problems they have encountered with the form. Their survey of Long-term Care Ombudsmen regarding POLST in practice revealed a very disturbing level of misrepresentation and misuse of POLST a few of which I’ll list here. For instance there is no requirement that POLST be checked for consistency against an advanced health care directive, and end-of-life terms on the form in some instances could have multiple meanings in multiple situations. Despite the fact that doctors are supposed to explain the form to patients, non-physician “health care professionals” – such as social workers, care assistants, or even people who work in a facility business office – are often left to do so. It was found troublesome that the physicians who sign the form don’t indicate whether they have actually discussed the choices with the patient or worse yet may never even have met the patient. Perhaps most alarmingly, however, the survey found that accompanying handouts may manipulate patients’ choices. For example, the material describes how CPR can cause broken ribs and brain damage. “The handouts are clearly intended to convince patients or their representatives to forgo CPR,” the study found. Another important criticism is that CA POLST law permits third parties to sign a POLST which overrides previously expressed wishes of the patient if the patient is incapacitated. They see this as undermining the primary purpose of POLST and “setting California privacy law and advance health care decision-making on their heads.”⁴

At present the form is voluntary but as early as 2007 Karen Ward R.N expressed worries about POLST. “Will these forms become standard hospital policy. Will they become governmentally mandated?” ⁵ In some states offering the form is mandatory, but when AARP did their analysis of POLST, it was found that in those states where it is mandatory to offer it, it was common to find that nursing homes misinterpreted that to say they must require every resident to have POLST form.⁶ Ward also wondered, “Is the goal to phase out current Advance Directives? If not, what is the rationale of duplicity and probable conflict of the two forms? If POLST is to enhance Advance Directives, which one supercedes the other? Which one is followed if there are discrepancies?”⁷ “If there is a conflict between documents, the more recent document should be followed” according to the California Coalition for Compassionate Care’s web-site.⁸

California law requires that physician orders in a POLST be followed by health care professionals, and provides immunity from civil or criminal liability to those who comply in good faith with a patient’s POLST requests.⁹ (Other states with POLST programs have also granted this same immunity) Why would that be? Might there be a chance that one could be accused of causing the death of a patient by following the form and run the risk of being sued? Yet on the web-site of the California Medical Association it is stated that physicians and other health care providers are authorized to decline to comply with a patient’s Advance Health Care Directive, surrogate decision-maker’s health care decision or POLST form because of conscience or institutional policy or because the care would be medically ineffective or contrary to generally accepted health care standards. Certain procedures would need to be followed in such circumstances.¹⁰ What should a CA health provider do with these conflicting instructions?

How accurately does a POLST document truly convey a person’s wishes and values? It’s not uncommon for patients to be confused about what they are being asked to decide, and vague or misinformed about the purpose and/or effectiveness of medical options they are being asked to choose among. Patients must rely on the facilitator to explain what is not understood. How well does the facilitator explain the options? The patient may still not fully understand what s/he is choosing which can be especially true when decisions are made in a crisis situation. Rita Marker J.D., the executive director of Patients Rights Counsel, points out that POLST facilitators may be social workers or clergy with no medical training, and this could easily lead to misinformation being given the patient. Facilitators are “basically taught to follow a script. They might say things such as, ‘We find that most people would not want to continue to live in a vegetative state.’ They focus on what you wouldn’t want done.”¹¹

A team of three doctors and a moral ethicist wrote an article very critical of POLST in the journal of Ethics and Medics. After reviewing training materials for facilitators of POLST, they concur with Marker’s conclusion: The training is heavily fear-based, and biased in favor of refusing life-sustaining treatments. This is accomplished by the facilitator filling out the form for the patient emphasizing all possible burdens of accepting treatment and on the other hand minimizing burdens associated with refusal of treatment. For example, one of its training scripts reads: To assist you in making this decision, I’d like to give you some examples of the side effects that can occur because of receiving artificial nutrition and hydration. First, the artificial nutrition that is delivered through tubes often moves out the stomach and slips into the lungs, causing pneumonia. This is called aspiration. The artificial hydration that is delivered may also increase the amount of fluid the body has to absorb, causing extra fluid in the lungs, making it more difficult to breathe. The extra fluid also causes congestion in other parts of the body, causing pain and discomfort as well as the need to urinate more frequently artificial hydration that is delivered may also increase the amount of fluid the body has to absorb, causing extra fluid in the lungs, making it more difficult to breathe. The extra fluid also causes congestion in other parts of the body, causing pain and discomfort as well as the need to urinate more frequently.¹² Would anyone want to receive nutrition or hydration by tube or IV after being told that?

According to lawyer Lisa Gasbarre Black, The POLST movement "is a national effort to manage and control death under the guise of compassion.” The POLST philosophy is that a patient’s wishes are paramount, and POLST’s theory wishes to elevate patient autonomy to the level of an enforceable, legal right Ms. Black says. This may implicitly allow patients to mandate non-treatment in a way that would constitute voluntary euthanasia she adds. Since POLST is a physician’s order, health care givers would be mandated to comply. She also points out that advocates of POLST are already working to influence legislators to make personal autonomy a legal right, and lay a foundation for the concept of managed death to be more widely accepted. “Unfortunately the arguments in favor of the POLST theory mask the corrosive effect of POLST legislation,” says Ms. Black. She sees POLST playing a subtle, but significant role in advancing the euthanasia movement in our country.¹³

Let me expand on the possibility of POLST being able to be used in a way that could constitute voluntary euthanasia. Moral Ethicist Christian Brugger PhD., a strong critic of POLST, contends that though the form is recommended to be filled out when one is seriously ill or toward the end of life, anyone can fill out a POLST form at any time. This is a problem since POLST law sets forth no requirement that a patient’s refusal of life-support must be limited to end-of-life conditions. “If someone refuses life-support with the specific aim (or intention) of causing his or her own death, the person is choosing suicide. Morally speaking this is no different from ingesting a lethal dose of medication. The POLST-type law grants adults the civil right to direct healthcare professionals to remove life-sustaining procedures when those procedures are not futile and when the burden imposed by them would be offset by a reasonable hope of recovery. It juridically extends the ordinary context for the refusal of life-support to include the motive of bringing about death. Without using the term, the new law authorizes euthanasia.”¹⁴

With regard to artificially administered nutrition delivered by tube, there are three boxes on the POLST form to be checked: 1) not having a tube at all, 2) defined trial period of artificial nutrition tube, and 3) long-term nutrition tube. This poses problems for Catholic hospitals and Catholic health givers since ethical guidelines for Catholic hospitals, titled the ‘Ethical and Religious Directives’, state clearly that the administration of food and water to all patients who need them to survive is a moral obligation. The POLST form, by design, permits any patients for any reason at any time to direct their healthcare givers to withhold food and water from them. No wonder it’s the document of choice by Compassion & Choices, says Brugger.¹⁵

In fact the Catholic Bishops of Wisconsin issued a Pastoral Statement regarding their concerns about POLST. The statement declares in part: “A POLST form presents options for treatments as if they were morally neutral. In fact, they are not. Because we cannot predict the future, it is difficult to determine in advance whether specific medical treatments, from an ethical perspective, are absolutely necessary or optional. These decisions depend upon factors such as the benefits, expected outcomes, and the risks or burdens of the treatment. A POLST oversimplifies these decisions and bears the real risk that an indication may be made on it to withhold a treatment that, in particular circumstances, might be an act of euthanasia. Despite the possible benefits of these documents, this risk is too grave to be acceptable.”¹⁶

To follow the history and timing of POLST as it developed in Oregon is interesting, possibly revealing. The POLST task force began meeting in 1991, in 1995 the POLST form was released for use in Oregon, and in 1997 physician-assisted-suicide was legalized by Oregon voters. In the intervening years between 1991 and 1997, Compassion & Choices (CC) and other euthanasia supporters had been busy educating Oregonians about the importance of “dying with dignity, and eventually the importance of signing a POLST form. Is it significant that POLST was developed as groundwork was being laid for the legalization of physician assisted suicide?

The push for physician-assisted suicide didn’t stop in Oregon. Buoyed up by the legalization of it in Oregon, Compassion and Choices (C&C) and their allies moved on to other states helping them to follow suit. Educating the public on end-of-life choices, the advantage of signing a POLST, and the benefits of physician assisted suicide aka “death with dignity” is one of the first steps in helping the public to embrace the idea. C&C has joined forces with physicians, hospital associations, universities, public health organizations and other groups in these “educational” efforts.

In 2011 C&C launched a program entitled "Peace at Life’s End – Anywhere." Moral ethicist E. Christian Brugger PhD., says it should more properly be called "legal self-killing anywhere in the U.S.”¹⁷ This goes beyond their promotion of POLST. According to the C&C web-site, this is a program to “educate and empower individuals throughout America who want a peaceful death. . . . whether or not they live in a state where aid in dying is openly available . . . there is one method of peaceful dying universally available, legal, safe, painless and suitable for a gentle parting . . . This is the purposeful refusal of food and fluids, in medical jargon known as voluntarily stopping eating and drinking (VSED) We hope to inform people in every state of safe, legal and peaceful means to end life when physical decline and suffering become pointless and unbearable.”¹⁸ In other words "Peace at Life’s End – Anywhere” is instructing people on how to kill themselves. The same organization offering this program is also the same organization aggressively promoting POLST.

The goal of ethical, moral medicine should be to care for, protect, and preserve life until natural death. As Dr. Brugger states, "You have arguments by defenders that make these documents (POLST) seem innocent, but the pressure is always in favor of removal of treatment"¹⁹

Advanced Directives let your doctor know what kind of care you would like if you become unable to make medical decisions. Some examples are living wills, DNR (do not resuscitate order), POLST, and Durable Power of Attorney for Health Care. The first three violate two important principles of the practice of ethical medicine. First before making a healthcare decision you must have all (or as much as possible) available information about your present condition and secondly you must have pertinent information about the current “state of the art” practice of medicine. It is not possible to foresee the future. The better method is the fourth one, Durable Power of Attorney for Health Care (DPAHC), but there are problems with some of those versions, too. A DPAHC designates a person of your choosing to make care decisions in the event you are unable to do so. This person should be one you completely trust, who has been told your wishes and desires for healthcare, and fully understands them. Two recommended versions of DPAHC which are careful in respecting life rather than hastening death can be had by contacting the Life Guardian Foundation www.lifeguardianfoundation.org or Patient’s Rights Council www.patientsrightscouncil.org. But in the end, no legal instrument can substitute for wise and loving choices, made on the spot, when the precise treatment dilemma is clear and care decisions are needed.²⁰

Germaine Wensley RN is a founder and vice-president of California Nurses for Ethical Standards (CNES). She is also the editor of the CNES’ publication, lifesCeNES.

END NOTES

1. California Coalition for Compassionate Care, http://www.capolst.org/?for=patients
    
2. NURSING ETHICS: POLST sweeps the nation, Lois R. Robley RN, PhD, Nursing 2013 Critical Care, January 2009, vol. 4, #1 PP 19-20
    
3. CANHR POLICY BRIEF “Physician Orders for Life Sustaining Treatment (POLST) Problems and Recommendations” www.canhr.org/reports/2010/POLST_WhitePaper.pdf
    
4. ibid
    
5. “Know Your POLST, ”Commentary By Karen Ward, RN March 13, 2007, North Country Gazette.
    
6. Improving Advanced Illness Care: The Evolution of State POLST Programs, AARP POLST analysis, http://assets.aarp.org/rgcenter/ppi/cons-prot/POLST-Report- 04-11.pdf
    
7. “Know Your POLST, ”Commentary By Karen Ward, RN March 13, 2007, North Country Gazette.
    
8. Coalition for Compassionate Care of California web-site www.capolst.org/documents/POLSTFAQforProviders.pdf
    
9. IBID
    
10. Information & Frequently Asked Questions About POLST http://www.cmanet.org/about/patient-resources/end-of-life-issues/physician-orders-for-life-sustaining-treatment
     
11. Physicians Orders for Life-sustaining Treatment: Helpful or a New Threat, National Catholic Register, http://www.ncregister.com/daily-news/physicians-order-for- life-sustaining-treatment-helpful-or-a-new-threat/#ixzz2W24ihq4C
     
12. ”POLST and Catholic Healthcare” Ethics & Medics January 2012, Volume 37, number 1 E. Christian Brugger, PhD, Chair of Moral Theology at Saint John Vianney Theological Seminary in Denver, Colorado. Dr. Stephen L. Pavela, specialist in internal medicine and president of the La Crosse Guild of the Catholic Medical Association, William L. Toffler MD, professor of family medicine at Oregon Health and Science University (OHSU). Dr. Franklin Smith, a specialist in urology and past president of the Milwaukee Guild of the Catholic Medical Association in Wisconsin.
     
13. NLA BRIEF, National Lawyers Association, Vol. 7, No. 3 October-December 2010, “The Danger of POLST Orders: An Innovation on the DNR”, p.1, 6
     
14. Euthanasia by Omission - And Making It a Doctor’s Order, E. Christian Brugger, zenit.org, Posted: August 24, 2011 & Physicians Orders for Life-sustaining Treatment: Helpful or a New Threat, National Catholic Register, http://www.ncregister.com/daily-news/physicians-order-for-life-sustaining-treatment- helpful-or-a-new-threat/#ixzz2W24ihq4C
     
15. Physicians Orders for Life-sustaining Treatment: Helpful or a New Threat, National Catholic Register, http://www.ncregister.com/daily-news/physicians-order-for- life-sustaining-treatment-helpful-or-a-new-threat/#ixzz2W24ihq4C
     
16. Upholding the Dignity of Human Life: A Pastoral Statement on Physician Orders for Life-Sustaining Treatment (POLST) from the Catholic Bishops of Wisconsin
     
17. Legalizing Euthanasia by Omission and Making It a Doctor’s Order, E. Christian Brugger PhD., Aug. 24, 2011, Zenit. www.zenit.org/en/articles/legalizing-euthanasia-by-omission
     
18. Compassion and Choices web-site: http://www.compassionandchoices.org/2011/08/17/peace-at-lifes-end-anywhere/
     
19. Physicians Orders for Life-sustaining Treatment: Helpful or a New Threat, National Catholic Register, http://www.ncregister.com/daily-news/physicians-order-for- life-sustaining-treatment-helpful-or-a-new-threat/#ixzz2W24ihq4C
     
20. TAKING CARE: ETHICAL CAREGIVING IN OUR AGING SOCIETY, The Limited Wisdom of Advance Directives, Chapter 2, The President’s Council on Bioethics - Washington, D.C. - September 2005 - www.bioethics.gov

See Also: POLST - Problems and Recommendations - CANHR POLICY BRIEF

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