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 Collaboration in Medicine
and Law Florida State University (USA)
marshall.kapp@ med.fsu.edu
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)
Legislation
Regulation
Clinical consensus
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POLST—The Florida Strategy
http://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—Guardianship
 Florida 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 state
Continual 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? Interagency 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 POLSTs
Provider 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 measures
Outcome measures
– Implementation/Advocacy strategy
Codification of a proven, widespread
practice
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