Much of the state level legislative activity concerning POLST (Physician Orders for Life-Sustaining Treatment) has been carried out under the general public’s radar. But when Governor Chris Christie vetoed the New Jersey POLST bill yesterday, it hit the news feed.
According to NEWJERSEYNEWSROOM.COM and the Governor’s veto message –
While noting the prospective benefits in guiding end of life patient care for New Jerseyans by utilizing POLST forms, Christie cited concerns with the provisions of the bill that would effectively allow a patient’s wishes to be overridden by the patient’s physician or healthcare representative without the patient’s prior consent, and that would mandate an alternative dispute resolution as a prerequisite to a patient’s or his or her representative’s right to go to court to protect a patient’s wishes. Christie recommended changes to further protect a patient’s health care wishes.
Sounds good, but I’ve been pretty concerned about Governor Christie’s Medicaid cuts, so I had to look at the details.
The veto message included specific guidance on how the POLST bill could be amended to correct its defects. The original bill requires the individual’s or healthcare representative’s signature (Section 6.b.(2)), along with the physician’s or advanced practice nurse’s (APN’s), so that’s good.
But then it states that the physician or nurse can change the POLST form “after conducting an evaluation of the patient and, to the maximum extent practicable, acting in consultation with the patient or the patient’s representative . . ..” (Section 7.a.) Weasel words. Here is Christie’s edited version:
If the goals of care of a patient with a completed POLST form change, the patient’s attending physician or APN may, after conducting an evaluation of the patient and after obtaining informed consent from , to the maximum extent practicable, acting in consultation with the patient or, if the patient has lost decision-making capacity, the patient’s representative in accordance with subsection d. of this section, issue a new order that modifies or supersedes the completed POLST form . . . .
Weasel words deleted.
The section we just considered refers us next to 7.d. which, in the original bill, gave the healthcare representative virtually unfettered discretion to change the POLST form at any time if the individual lost decision-making capacity. Christie’s revisions to section 7.d. begin as follows:
If a The POLST form shall provide the patient with the choice to authorize the patient’s representative with the ability to revoke or modify the patient’s POLST if the patient who has a completed POLST form has lost loses decision-making capacity.
This and further revisions of section 7.d. provide that the representative’s power to revoke or modify the POLST form is determined by the individual.
Finally, the original bill requires disagreements between the individual, their representative and the physician or nurse to be submitted for resolution through the ethics committee or other process of the health care institution before being taken to the courts.
8. a. In the event of a disagreement among the patient, the patient’s representative, and the patient’s attending physician or APN concerning the patient’s decision-making capacity or the appropriate interpretation and application of the terms of a completed POLST form to the patient’s course of treatment, the parties: (1) shall seek to resolve the disagreement by means of procedures and practices established by the health care institution, including, but not limited to, consultation with an institutional ethics committee, or with a person designated by the health care institution for this purpose; and (2) upon a failure to resolve the disagreement in the manner set forth in paragraph (1) of this subsection, may seek resolution by a court of competent jurisdiction.
Such disagreements might involve, for example, a health care provider’s futile care judgment, so speedy access to the courts can be a matter of life and death. Christie’s revisions give the parties the discretion to use either the institution’s procedure or the courts.
Since legislative intent can be difficult to synchronize with legislative drafting, one could give the original drafters the benefit of the doubt. The bill’s primary sponsors (insert S2197 into Bill Search link, then click on bill no. for these details) included at least one physician, Herb Conaway, Jr., and one nurse, Nancy Munoz, as well as a lawyer or two. Maybe they didn’t intend to make it easier for a healthcare provider or healthcare representative (surrogate) to overrule an individual. Maybe they didn’t intend to set up an alternative dispute resolution procedure that could prevent someone from getting to court in time to save a life.
The original bill was adopted on a 37/0 vote in the NJ Senate and 60/6 in the Assembly (not counting abstentions and non-voting) (insert S2197 into Bill Search link, then click on bill no. for these details). We’ll see whether the bill language is revised to add protections before it next comes up for a vote. – Diane Coleman
Thanks for such keen analysis always.