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The POLST Paradigm for Patients with Advanced, Irreversible Illness: Is There A TJ Basis 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. [email protected] med. fsu. edu

Agenda Ø POLST Paradigm – Concept – Implementation thus far – Florida’s experience Ø Agenda Ø POLST Paradigm – Concept – Implementation thus far – Florida’s experience Ø Need for Legal Action? Ø TJ – Concept – Applied to POLST Paradigm FSU COLLEGE OF MEDICINE

Ø Plan of Action—Using TJ to Support Legal Action that Promotes POLST Implementation – Ø Plan of Action—Using TJ to Support Legal Action that Promotes POLST Implementation – Research agenda – Implementation strategy FSU COLLEGE OF MEDICINE

POLST Paradigm—The Concept Ø Physician Orders for Life-Sustaining Treatment (nomenclature varies) Ø Logical next POLST Paradigm—The Concept Ø Physician Orders for Life-Sustaining Treatment (nomenclature varies) Ø Logical next step beyond advance directives Ø Both stimulates and grows out of patient/physician conversation— form is just the culmination FSU COLLEGE OF MEDICINE

POLST—Implementation Thus Far Ø www. POLST. org Ø As of July 2013: – 2 POLST—Implementation Thus Far Ø www. POLST. org Ø As of July 2013: – 2 Mature States (Oregon, W. Va. ) – 14 Endorsed States – 27 Developing States (Florida) ØLegislation ØRegulation ØClinical consensus FSU COLLEGE OF MEDICINE

POLST—The Florida Strategy http: //med. fsu. edu/medlaw/polst Ø Fla. Stat. ch. 765—Advance directives, surrogate POLST—The Florida Strategy http: //med. fsu. edu/medlaw/polst Ø Fla. Stat. ch. 765—Advance directives, surrogate and proxy decision making Ø Fla. Stat. ch. 709—Durable power of attorney Ø Fla. Stat. ch. 744—Guardianship Ø Florida Stat. § 401. 45 (3)—Do Not Resuscitate orders, implemented by Fla. Admin. Code r. 64 B 8 -9. 016 (DOH Yellow Form) FSU COLLEGE OF MEDICINE

Ø 5+ pilot programs around state Ø Continual conversations and communications among institutional, academic, Ø 5+ pilot programs around state Ø Continual conversations and communications among institutional, academic, and community leaders Ø Professional and public education efforts Ø Where next? Changing the law? ? FSU COLLEGE OF MEDICINE

The Need for Legal Action? Ø Statutory changes? Placement? – Chap. 765? ØFailed House The Need for Legal Action? Ø Statutory changes? Placement? – Chap. 765? ØFailed House Bill 1017, 2006 Leg. Reg. Sess. (Fla. 2006) (identical to S. 2572, 2006 Leg. Reg. Sess. (Fla. 2006)). – Chap. 401. 45? Ø Regulatory changes? Alternative or supplement to statutory changes? Legislative authorization? Which agencies should have authority? Interagency coordination? FSU COLLEGE OF MEDICINE

Ø Clinical consensus – Fla. Stat. § 765. 106 Preservation of existing rights — Ø 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 MEDICINE

Ø So Why Is Legal Change Needed? – Provider legal anxieties in the absence Ø 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. ØPhysician reluctance to write POLSTs ØProvider reluctance to honor POLSTs FSU COLLEGE OF MEDICINE

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

Ø Applying TJ lens to POLST – What are therapeutic goals of POLST? – Ø Applying TJ lens to POLST – What are 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 MEDICINE

Ø Therapeutic goals of POLST for patient and family – – – Sense of Ø 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 MEDICINE

Ø Empirical Evidence on POLST— Process measures as proxy for Outcome measures – High Ø 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 MEDICINE

Ø How would legislation or regulation enhance promotion of the POLST goals? Ø Encourage Ø How would legislation or regulation enhance promotion of the POLST goals? Ø Encourage communication with patients/families Ø Encourage the writing and implementation of POLSTs by reducing providers’ legal anxieties FSU COLLEGE OF MEDICINE

Action Plan Ø Using TJ to Support Legal Action that Promotes POLST Implementation – Action Plan Ø Using TJ to Support Legal Action that Promotes POLST Implementation – Research Agenda ØProcess measures ØOutcome measures – Implementation/Advocacy strategy ØCodification of a proven, widespread practice FSU COLLEGE OF MEDICINE