Assembly Bill 3000 Introduces Physician Orders for Life-Sustaining Treatment to California

14 August 2008 Publication
Authors: Shirley P. Morrigan

Legal News Alert: Health Care

On August 4, 2008 California Governor Arnold Schwarzenegger signed Assembly Bill (A.B.) 3000 into law. This bill amends the California Probate Code to add a recognition of Physician Orders for Life-Sustaining Treatment (POLST) forms to the current recognition of “do not resuscitate” (DNR) forms. It does not require the use of a POLST form, but describes the requirements if one is used. It also changes the phraseology describing POLST and DNR forms from a “request to forgo resuscitative measures” to a “request regarding resuscitative measures.” This reflects the fact that POLST forms may be used by a patient to request interventions as well as to refuse them.

PIT, PIC, and POLST
The POLST form resembles the Preferred Intensity of Treatment (PIT) form, also called a Preferred Intensity of Care (PIC) form. The previous PIC form implies less “care,” which was never intended. These forms, while not recognized by statute or regulation, have been used, often by nursing homes, to collect information about a patient’s treatment wishes. Although the PIT form was designed for use by doctors, in some cases the PIT form has been completed by an administrator as part of a patient’s admission paperwork. In some cases, a patient may not have been consulted, even if he or she had capacity, and the form may have been completed by a patient’s family member. The introduction of the POLST form shows that the gathering of this information is accomplished most appropriately by a physician providing advice to the patient or to his or her authorized decision-maker if the patient lacks capacity. The POLST is superior to either the PIC or PIT forms because it clearly is a physician-driven document that empowers a patient’s preferences based on medical advice.

What is the POLST Form?
POLST forms are designed to be a physician’s order that addresses a patient’s wishes about a particular set of medical issues, including cardiopulmonary resuscitation (CPR), antibiotic use, artificial nutrition, and degree of medical intervention desired by a patient when he or she is not in cardiac arrest, such as intubation, or artificial ventilation. (Sample official POLST forms from other states that have implemented POLST are available at http://www.polst.org.)

Assembly member Lois Wolk, the author of A.B. 3000, has said that she believes what makes POLST forms unique is that they are physicians’ orders, which she believes will carry more weight in health care settings than advance directives or DNR orders. That may be true.   However, facilities need to consider revising their physician order policies to include a POLST if they wish to recognize it as a valid order in the facility.

Like DNR orders, the POLST form will apply both in and out of hospitals, and a health care provider that honors a POLST form in good faith is protected from liability. For a POLST form to be valid in California, it must be explained to the patient by a health care provider, completed by a health care provider with the patient (or the patient’s legal health care decision-maker under the California Probate Code (Probate Code) if the patient lacks capacity or the patient has designated the decision-maker’s authority under the Probate Code). Note that while A.B. 3000 allows a health care licensed provider, such as a nurse, to explain the form to a patient, the form must be signed by a physician. As part of this process, the provider is required to explain the difference between a POLST form and an advance directive. This will require education of health care providers, many of whom may not understand the difference themselves.

How Does the POLST Differ From an Advance Directive?
The POLST form is designed to supplement an advance directive form and not to replace one if it exists. The POLST form provides for an expression of a patient’s wishes to a health care provider for certain specific issues related to end-of-life care by the patient or a surrogate, rather than the broad deference to an agent to carry out the patient’s health care and post-death wishes in an advance directive. Further, an advance directive contains much more information than a POLST form, such as the name of an agent, wishes about pain relief, preference for or against autopsy, and preferences regarding organ donation. However, where the POLST conflicts with an advance directive, A.B. 3000 provides that the most recent expression of a patient’s wishes governs. This means that health care organizations will now not only need to ask patients whether they have a DNR form or an advance directive, but also if they have a POLST form. Facilities also will need to clearly tell patients whether they accept POLST forms as well as advance directives.

How Does the POLST Address Medically Ineffective Care?
A.B. 3000 adds a section to the Probate Code that requires health care providers to follow the instructions on a patient’s POLST form. This requirement is not as strong as it may initially seem, because the POLST form does not apply when it “requires medically ineffective health care or health care contrary to generally accepted health care standards applicable to the health care provider or institution.” This mirrors a similar provision of the Probate Code applicable to advance directives.

For example, if a patient has requested CPR, it may become “medically ineffective” to continue providing CPR if the patient cannot survive without constant or near-constant use of CPR. Similarly, it normally will not meet generally accepted standards of care if a patient requests continuous use of antibiotics merely because he or she thinks he or she may get sick. In the event a provider does not wish to follow a patient’s POLST form, it is probably advisable in some circumstances to review this decision with legal counsel or a facility’s bioethics committee. Patients also should be counseled that the POLST form may not be followed when the care they have requested is not medically effective or does not comply with generally accepted standards. Additionally, the orders in the POLST form may be updated by a physician and the patient or his or her surrogate at any time as the patient’s condition changes. If a patient retains capacity, he or she may request treatment different from that requested on the POLST form at any time. While this has the advantage of keeping the POLST form a flexible document, it will be important to be sure that patients understand that a surrogate decision-maker may change the orders in the POLST form if the patient loses capacity.

Disclosure of the POLST
The POLST form may become a useful additional tool under California law for a patient to express his or her end-of-life wishes, but its use will require education of health care providers, and it should not be a substitute for an ongoing dialogue between a patient and his or her providers. Additionally, the California POLST form currently recommended by the California Coalition for Compassionate Care, one of the co-sponsors of A.B. 3000, states that the Health Insurance Portability and Accountability Act (HIPAA) allows disclosure of the form to health care providers “as necessary.” It does not appear that there is an official form approved by the Emergency Medical Services Authority yet, as required by A.B. 3000, but this statement is on most of the other official state forms.

California patient privacy law is often more restrictive than HIPAA; where California law is stricter it preempts HIPAA. It is advisable to consult with legal counsel about whether all planned releases of the POLST form by a facility are allowed under California law. As a physician’s order that is part of the medical record, a POLST form would be protected under the Confidentiality of Medical Information Act (CMIA). While releases to health care providers for treatment purposes are generally allowed under CMIA, it is possible to imagine a situation in which an insurer requests a copy of the POLST form or requires a POLST form to be completed. Whether   the release of information is allowable in this case is less certain under CMIA.

 


Legal News Alert is part of our ongoing commitment to providing up-to-the-minute information about pressing concerns or industry issues affecting our health care clients and colleagues. If you have any questions about this alert or would like to discuss this topic further, please contact your Foley attorney or any of the following individuals:

 

Stephanie (Lynn) McClelland
Los Angeles, California
213.972.4560
smcclelland@foley.com

Shirley P. Morrigan
Los Angeles, California
213.972.4668
smorrigan@foley.com

 

 

Authors

Shirley P. Morrigan

Retired Partner

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