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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
FSU COLLEGE OF MEDICINEFSU COLLEGE OF MEDICINE
Agenda
POLST Paradigm– Concept– Implementation thus far– Florida’s experience
Need for Legal Action?TJ– Concept– Applied to POLST Paradigm
FSU COLLEGE OF MEDICINEFSU COLLEGE OF MEDICINE
Plan of Action—Using TJ to Support Legal Action that Promotes POLST Implementation– Research agenda– Implementation strategy
FSU COLLEGE OF MEDICINEFSU COLLEGE OF MEDICINE
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
FSU COLLEGE OF MEDICINEFSU COLLEGE OF MEDICINE
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
FSU COLLEGE OF MEDICINEFSU COLLEGE OF MEDICINE
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)
FSU COLLEGE OF MEDICINEFSU COLLEGE OF MEDICINE
5+ pilot programs around stateContinual conversations and
communications among institutional, academic, and community leaders
Professional and public education efforts
Where next? Changing the law??
FSU COLLEGE OF MEDICINEFSU COLLEGE OF MEDICINE
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?
FSU COLLEGE OF MEDICINEFSU COLLEGE OF MEDICINE
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.
FSU COLLEGE OF MEDICINEFSU COLLEGE OF MEDICINE
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
FSU COLLEGE OF MEDICINEFSU COLLEGE OF MEDICINE
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
FSU COLLEGE OF MEDICINEFSU COLLEGE OF MEDICINE
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?
FSU COLLEGE OF MEDICINEFSU COLLEGE OF MEDICINE
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)
FSU COLLEGE OF MEDICINEFSU COLLEGE OF MEDICINE
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)
FSU COLLEGE OF MEDICINEFSU COLLEGE OF MEDICINE
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