The POLST Paradigm for Patients with Advanced, Irreversible Illness: Is There A TJ Basis for Legal Codification Marshall B. Kapp, JD, MPH Center for Innovative.

The POLST Paradigm for Patients The POLST Paradigm for Patients with Advanced, Irreversible Illness: with Advanced, Irreversible Illness: Is There A TJ Basis for Legal Is There A TJ Basis for Legal CodificationCodification

The POLST Paradigm for Patients The POLST Paradigm for Patients with Advanced, Irreversible Illness: with Advanced, Irreversible Illness: Is There A TJ Basis for Legal Is There A TJ Basis for Legal CodificationCodification

Marshall B. Kapp, JD, MPHMarshall B. Kapp, JD, MPH

Center for Innovative Collaboration in Medicine Center for Innovative Collaboration in Medicine and Law Florida State University (USA)and Law Florida State University (USA)

marshall.kapp@ med.fsu.edumarshall.kapp@ med.fsu.edu

Marshall B. Kapp, JD, MPHMarshall B. Kapp, JD, MPH

Center for Innovative Collaboration in Medicine Center for Innovative Collaboration in Medicine and Law Florida State University (USA)and Law Florida State University (USA)

marshall.kapp@ med.fsu.edumarshall.kapp@ med.fsu.edu

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Agenda

POLST Paradigm– Concept– Implementation thus far– Florida’s experience

Need for Legal Action?TJ– Concept– Applied to POLST Paradigm

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Plan of Action—Using TJ to Support Legal Action that Promotes POLST Implementation– Research agenda– Implementation strategy

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POLST Paradigm—The Concept

Physician Orders for Life-Sustaining Treatment (nomenclature varies)

Logical next step beyond advance directives

Both stimulates and grows out of patient/physician conversation—form is just the culmination

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POLST—Implementation Thus Far

www.POLST.org As of July 2013:– 2 Mature States (Oregon, W.Va.)– 14 Endorsed States– 27 Developing States (Florida)

LegislationRegulationClinical consensus

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POLST—The Florida Strategyhttp://med.fsu.edu/medlaw/polst

Fla. Stat. ch. 765—Advance directives, surrogate and proxy decision making

Fla. Stat. ch. 709—Durable power of attorney

Fla. Stat. ch. 744—GuardianshipFlorida Stat. §401.45 (3)—Do Not

Resuscitate orders, implemented by Fla. Admin. Code r. 64B8-9.016 (DOH Yellow Form)

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5+ pilot programs around stateContinual conversations and

communications among institutional, academic, and community leaders

Professional and public education efforts

Where next? Changing the law??

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The Need for Legal Action?

Statutory changes? Placement?– Chap. 765?

Failed House Bill 1017, 2006 Leg. Reg. Sess. (Fla. 2006) (identical to S. 2572, 2006 Leg. Reg. Sess. (Fla. 2006)).

– Chap. 401.45? Regulatory changes? Alternative or supplement

to statutory changes? Legislative authorization? Which agencies should have authority? Inter-agency coordination?

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Clinical consensus– Fla. Stat. § 765.106 Preservation of existing rights

— The provisions of this chapter are cumulative to the existing law regarding an individual’s right to consent, or refuse to consent, to medical treatment and do not impair any existing rights or responsibilities which a health care provider, a patient, including a minor, competent or incompetent person, or a patient’s family may have under the common law, Federal Constitution, State Constitution, or statutes of this state.

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So Why Is Legal Change Needed?– Provider legal anxieties in the absence

of explicit statutory and/or regulatory provisions guaranteeing criminal, civil, and professional discipline immunity for acting within a defined safe harbor.Physician reluctance to write POLSTsProvider reluctance to honor POLSTs

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Can Therapeutic Jurisprudence (TJ) Be the Basis for Legal Action Leading to POLST Implementation?

TJ concept: Analytic, interdisciplinary lens that inquires into the psychological effects of legislation, regulation, or judicial decisions on the law’s intended beneficiaries

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Applying TJ lens to POLST–What are the therapeutic goals of

POLST?– Are those goals being met by POLST in

practice? Empirical evidence?– How would legislation or regulation

enhance promotion of the POLST goals?

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Therapeutic goals of POLST for patient and family– Sense of being communicated with– Sense of control, autonomy– Sense of satisfaction with the experience– Reducing guilt feelings– Minimizing stress by minimizing resort to the

courts and adversary process(es)

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Empirical Evidence on POLST—Process measures as proxy for Outcome measures– High rate of document completion– High rate of document implementation

(i.e., patients get the care they said they would want, die where they say they would prefer)

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How would legislation or regulation enhance promotion of the POLST goals? Encourage communication with

patients/families Encourage the writing and implementation of

POLSTs by reducing providers’ legal anxieties

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Action Plan

Using TJ to Support Legal Action that Promotes POLST Implementation– Research Agenda

Process measuresOutcome measures

– Implementation/Advocacy strategyCodification of a proven, widespread

practice