Legal Resources
Legal IssuesMembers of the POLST Paradigm Task Force completed a national study in 2007 to identify potential legal barriers to the implementation of POLST Paradigm Programs through the examination of state statutes (formal, codified laws enacted by state legislative bodies that require a legislative vote to change) and regulations (rules developed by state administrative offices authorized by the legislature to clarify or implement statutes) relevant to end-of-life treatment decisions. See Manuscript The Table that follows compares key aspects of those statutes and regulations highlighting provisions that may need to be changed prior to the state implementing a POLST Paradigm Program. These data reflect laws and regulations in place at the end of 2006. A minimum of five different sets of legal provisions are relevant to POLST Paradigm Program implementation:
However, the potential barriers are grouped in the Table under two main sources of issues:
A. Out-of-hospital DNR Protocol Barriers Out-of-hospital DNR protocols exist by statute or regulation in all but three states: Minnesota, Mississippi, and North Dakota. In the 47 states that do have out-of-hospital DNR protocols, three features of some out-of-hospital DNR protocols were identified as potential barriers to a POLST Paradigm Program: (1) Detailed Statutory Form Specifications.
(2) Medical Preconditions. The presence of specific medical preconditions for out-of-hospital DNR protocols limit which patients are eligible to use programs based on the POLST Paradigm. The nature of medical preconditions vary by state and are defined in a manner similar to the medical preconditions noted under the authority to consent to forgo life-sustaining treatments. Medical preconditions for out-of-hospital DNR orders were present in 15 states. (3) Witnessing Requirements. Most out-of-hospital DNR forms require the signature of the patient along with the attending physician or another specified supervising health care provider. However, 12 states (24%) also require the signature of one or two witnesses to effectuate the order. B. Limitations on Consent to Forgo Life-Sustaining Treatment Twenty-three states impose explicit limitations on substituted consent to forgo life-sustaining treatments via their advance directive or default surrogate laws. (1) These limitations either focus on all life-sustaining interventions, including DNR and artificial nutrition and hydration, or on only artificial nutrition and hydration. Most limitations are diagnostic preconditions and vary by state. They include language such as "terminal condition," "permanent unconsciousness," and "end-stage condition." Definitions of these preconditions vary in regards to the complexity of the certification procedures required, with the most restrictive requiring documentation by a second physician specialist. (2) Additional medical certifications and/or evidentiary requirements were identified in 4 states. One of the most stringent states is Oklahoma, which expressly denies any substitute decision-maker the right to provide substituted consent to forgo artificial nutrition and hydration unless at least one of five specific preconditions are met. (3) Twenty-seven states imposed some level of restriction on withholding or withdrawing treatments, as in the case of a pregnant patient. (4) In many states, the authority to give substituted consent is determined by the category of the decision-maker:
In looking at any of these potential barriers, it is worth considering whether legislators and regulators intended them to apply to POLST programs in the first place. Most of these health decisions laws are complimentary with existing laws and prescribe one, but not the only, legal pathway to end-of-life treatment decisions. The primary advantage of these laws for healthcare professionals is the immunity they usually provide from prosecution, disciplinary action, and civil action for conduct in compliance with the statute. Although healthcare professionals undoubtedly value this immunity, most of their day- to-day clinical activities have no such legal protection. Thus, if healthcare professionals conclude that the POLST Paradigm is clinically appropriate, and there is no existing law that expressly prohibits its implementation, those conclusions may be sufficient to proceed with a POLST program. The barriers identified in this study are relevant only if states determine that the existing laws designed for out-of-hospital orders and advance directives do indeed apply to POLST Paradigm Programs. States interested in developing a POLST Paradigm Program will need to review the compatibility that state's existing laws with the POLST Program, and adopt or amend accordingly. How one overcomes legal barriers in one state may not work for another, and as a general rule, the simpler strategy is more likely to succeed. In other words, don't try to change a statute if you can reach your goal with only a change of regulation, which is generally easier to change. Don't try to change a regulation if you can reach your goal by voluntary collaboration among health care professionals. If a law or regulation must be changed, identify the simplest and shortest change needed to accomplish the goal. NOTE: Information is based upon a snapshot of the law as it existed in early 2008 and therefore may not accurately reflect current law in any particular state. Nevertheless, the analysis is intended to help shed light on the kinds of problems states may face in adapting POLST. NOTE: After the completion of data collection and the legal analysis in December 2006, the following states passed or enacted legislation which is not included in the Table and Appendix and which established the use of a POLST Paradigm Program: Hawaii, Idaho, North Carolina, and Tennessee.
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