William P. Isele, Esq. is of counsel to Archer & Greiner, P.C., where he practices health care law and elder law. He is a past chair of the New Jersey State Bar Association Health Law Section, and current chair of the NJSBA Elder & Disability Law Section. From 1999-2007, he served as New Jersey’s ombudsman for the institutionalized elderly.

Q. I have an Advance Health Care Directive to guide decisions about my medical care in case I can’t make the decisions myself. How can I be sure my wishes will be honored if and when the time comes?
A. Good for you! You’ve taken the first important step in exercising your right of self-determination with regard to end-of-life care. An Advance Directive, coupled with a health care power-of-attorney or proxy directive, lets your caregivers know your wishes regarding your treatment, and authorizes someone else to speak for you—if you are unable. Soon, New Jersey residents will have an additional tool to assure our treatment goals and directions are followed.

Last year, Gov. Christie signed into law bipartisan legislation creating a POLST—Physician Orders for Life-Sustaining Treatment—program in New Jersey.

The centerpiece of the POLST program is a written form that converts a person’s wishes regarding medical treatment into a medical order. The POLST form will contain immediately actionable, signed medical orders, which apply across the health care spectrum: in hospitals, nursing homes, and even to emergency care personnel. The form itself is an easily identifiable document, typically brightly colored in order to stand out from the rest of the patient’s medical record. The New Jersey POLST form is expected to be in use within a year.

Comparison to Advance Directives
POLST is intended to be a complement to Advance Directives. Whereas an Advance Directive expresses an individual’s wishes regarding future health care issues, POLST can provide clear instructions regarding a current medical condition. An Advance Directive is necessary to appoint a legal health care representative or proxy, since such designation is personal, and not in the nature of a medical order. A POLST form should accompany an Advance Directive when appropriate. Most importantly, an Advance Directive may not guide actions by emergency care personnel when it is produced outside of an institutional setting, such as a hospital. Because POLST is a medical order, it is specifically intended to provide direction to emergency care personnel.

Simply put, an Advance Directive is a document an adult can use to express his/her desires regarding end-of-life decision making. It does not have the same authority as a POLST, since it is not a medical order. The POLST document is a medical order health care workers must follow. Because they serve different purposes, it is recommended patients have both documents.

One of the concerns identified in the past regarding the use of Advance Directives was physicians were not always well-trained in dealing with end-of-life decision making. In a very significant provision, the New Jersey Legislature has required that the continuing education provisions applicable to physicians and advanced practice nurses (APN) include at least two credits of educational programs or topics related to end-of-life care.

The law requires the commissioner of health to designate a Patient Safety Organization (PSO) operating pursuant to the Federal “Patient Safety and Quality Improvement Act of 2005” to prescribe the form for use in New Jersey; to define the procedures for completion, modification and revocation of the form; and to provide ongoing training for health professionals in the use of the form. The commissioner has selected the Institute for Quality and Patient Safety at the New Jersey Hospital Association as the PSO to function in this regard. It’s expected the Institute will have finalized the POLST form for use in New Jersey by the end of 2012.

Valid POLST Form
A POLST form is considered completed, and therefore valid, if it contains information indicating a patient’s health care preferences; has been voluntarily signed by a patient with decision-making capacity, or by the patient’s representative in accordance with the patient’s known preferences or in the best interests of the patient; and includes the signature of the patient’s attending physician or APN and the date of that signature. A document executed in another state, which meets the requirements of the New Jersey act for a POLST form, shall be deemed to be completed and valid to the same extent as a POLST form completed in New Jersey.

Modifications
It is, of course, possible that the treatment goals of a patient may change. The act permits the patient’s attending physician or APN, after evaluating the patient and obtaining the informed consent of the patient or patient’s representative, if so authorized, to issue a new order, which modifies or supersedes the original POLST. At any time, a patient with decision-making capacity may modify or revoke the POLST, or request alternative treatment.

The POLST form gives the patient the choice to authorize a representative to revoke or modify the patient’s completed POLST form if the patient loses decision-making capacity. If the patient authorizes his/her representative, the representative may, at any time after the patient loses decision-making capacity, and after consultation with the patient’s attending physician or APN, request the physician or APN modify or revoke the completed POLST form, or otherwise request alternative treatment.

In the event of a disagreement between or among the patient, his/her representative and the attending physician or APN, the parties may turn to procedures and practices established by a health care institution, such as consultation with an ethics committee, or may seek resolution in court.

Patient and Provider Rights
The law preserves a patient’s right to refuse treatment, and does not require health care professionals or emergency care providers to act contrary to law or medical standards. Private, religiously-affiliated institutions are not required to act contrary to their policies or practices, as long as such policies and practices are properly communicated, and the patient is not abandoned or treated disrespectfully.

Conclusion
POLST is the next step in a maturing approach to end-of-life care. It is a vehicle for patients and their health care providers to spell out for both caregivers and family members the patient’s health care goals. The experience of other states has been that POLST is followed by other caregivers. Although not bound by medical orders in the same way as health professionals, family members can be more comfortable with a decision, knowing their loved one actively participated in the process. And finally, POLST will empower patients. Additional information about POLST can be found at www.POLST.org.

DISCLAIMER: Information provided in “Ask the Lawyer” is for general informational and educational purposes only. It does not constitute legal advice, and may not be used and relied upon as a substitute for legal advice regarding a specific legal issue or problem. Transmission of the information is not intended to create, and receipt does not constitute, a lawyer-client relationship. Legal advice should be obtained from a qualified attorney licensed to practice in the jurisdiction where that legal advice is sought.