Take Charge Florida! End of Life
Decisions and You
Marshall Kapp, J.D., M.P.H.
Center for Innovative Collaboration in Medicine
and Law
Florida State University
marshall.kapp@med.fsu.edu
Introduction
Autonomy principle
Informed choice/consent or refusal
Vulnerability in critical illness:
– Decisional capacity
– Institutional context
– Strange providers
– Lack of preparation
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Background
 Florida Advance Directive Law
– Instruction directives (Living Wills), F.S. §
765.302
– Surrogate (agent) appointment, F.S. § 765.202;
Durable power of attorney, F.S. chapter 709, is
functional equivalent. May withhold or withdraw
life-prolonging treatment if:
 No reasonable probability of patient
recovering capacity
 End-stage condition, terminal, or PVS
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 Substituted judgment (How much evidence?)
 Best Interests standard
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 Do Not Resuscitate (DNR) Orders
 Florida Statutes § 401.45(3)
 Implemented by Fla. Admin. Code r. 64B8-9.016
 Department of Health “Yellow Form,” DH Form 1896,
http://www.doh.state.fl.us/demo/trauma/PDFs/DNROF
ormMultiLingual2004.pdf
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Default statute, F.S. § 765-401,
authorizes a “proxy.”
– Spouse
– Adult child(ren)
– Parent
– Adult sibling(s)
– Close relative
– Close friend
– Clinical social worker selected by ethics
committee
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Guardianship
Ad hoc, default, bumbling
through
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Problems with the Status Quo
–Patients without directives +/or agents
–Interpretation and application
disagreements
–Document portability questions
–Inadequate enforcement mechanisms
–Surrogates or Proxies disagree, won’t
decide, make decisions based on
conflicts of interest
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POLST as the Next Generation of
Advance Planning
– Nomenclature varies
– Definition
Physician order, not an advance directive
– National movement, www.polst.org
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The POLST PARADIGM
Applicability
– Not for everyone
– People with advanced illness or frailty,
whom the physician would not be
surprised to see die within a year
– Does not get implemented if patient is
still decisionally capable
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Virtues of the POLST
– Combines the patient’s expertise on values
and the physician’s expertise of medical
means to achieve those values. Structure for
discussion (not just a form).
– Follows the person across care settings
– More likely to be honored
– Allows for more precision, less need for
interpretation
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POLST ≠ Physician-assisted death
(PAD)/Physisian-assisted suicide
(PAS)
– POLST is not about hastening death,
but rather getting patients the kind of
care they want. Patient-centered.
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Florida POLST Status and Strategy
 FSU Center as coordinator,
http://med.fsu.edu/medlaw/POLST
 Florida POLST Facebook,
https://www.facebook.com/floridapolst
 POLST Mailing List: Send email to
nicholas.breeding@med.fsu.edu or call
850-645-9473
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 Legal alternatives
Legislation
Regulation
Clinical consensus
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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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Practical problems
– DOH and Board of Medicine will not act
without explicit legislative command
– Physicians and EMS will not act without
explicit immunity provisions
– Conservative legal advice
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2015—POLST authorization and
immunity in amendment to S.B.
1052 (Right to Try), then in
substitute S.B. 1052, failed.
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 2016—S.0662 and S.0664* (Senator
Brandes)
– Committees: Health Policy;
Appropriations Subcommittee on Health
and Human Services; Appropriations
– https://www.flsenate.gov/tracker/login
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H.B. 957 (Rep. Gonzalez)
– Committees: Health and Human
Services, Health Care Appropriations,
Civil Justice Subcommittee, Health
Quality Subcommittee
– http://www.myfloridahouse.gov/Sectio
ns/Bills/billsdetail.aspx?BillId=55909
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Policy/Statutory POLST
Drafting Issues for 2017
 Should the form content be specified in
statute? Must the approved form be
used?
 Which specific medical interventions
should be listed as options?
 Require statement of reasons (e.g.,
diagnosis) for the POLST for this patient?
Restrict permissible reasons (e.g., require
“terminal” illness)?
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Who (besides physicians) may write
a POLST?
Who (besides physicians) may
discuss a POLST with the patient?
Must patient or surrogate consent
be documented on the form by
signature?
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 Extent of surrogates’ authority to consent
to POLST on behalf of a patient lacking
decisional capacity?
 Immunity for providers for following a
POLST?
 Penalties for provider non-compliance?
 Originals vs. Copies/Faxes?
 Conflicts between POLST and advance
directives?
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Registry Questions
– Who has access?
– Confidentiality and security of data?
HIPAA compliance?
– Quality control, timeliness, updating of
data? Liability for inaccurate data
entry?
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Policy Questions for
Healthcare Institutions
How does POLST fit with institutional
by-laws and protocols?
Recognition of POLST signed by
physician without privileges in that
institution?
Recognition of POLST signed by
non-physician?
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Ramifications for Health Care
Consumers
– Discuss with your physician
– Update and harmonize all advance
planning documents.
– Assure family understanding
– Political activity (legislative and
regulatory)
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Conclusion
Legislation would only be the
beginning:
– Regulation/form development
– Education of health care providers,
attorneys, and the public
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