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State Legislation

A POLST Primer
by Mr. Jan Halisky, Attorney at Law

On October 28th, 2015, Pinellas County Senator Jeff Brandes introduced a bill entitled “Physician Orders for Life Sustaining Treatment (POLST)”. POLST is an oxymoron. In our view, rather than sustaining lives, POLST will only open the door wider to covert euthanasia.

It is important to know first of all what organizations are driving POLST. The POLST concept originated at the Oregon Health and Science University Center for Ethics in Health Care (OHSU CFE). The National POLST Paradigm Task Force, which lobbies states to implement the use of POLST forms, has its national office at OHSU CFE. This connection is important to know because OHSU CFE was also responsible for producing the Oregon Death with Dignity Act: a Guidebook for Health Care Professionals, meant to help physicians implement requests for assisted suicide. Two members of the POLST Paradigm Task Force, Patrick Dunn, M.D., and Susan Tolle, M.D., were involved in issuing the Guidebook. Under the Oregon law, “death with dignity” is a euphemism for physician assisted suicide.

POLST is also being pushed by the Hemlock Society, now known as Compassion and Choices. The Hemlock Society was founded by Derek Humphrey, who helped his first wife kill herself. Humphrey’s second wife committed suicide too, after he abandoned her when she got breast cancer. A number of people have committed suicide using the do it yourself death information contained in Humphrey’s book, Final Exit.

Florida’s state coordinator for POLST is the FSU Center for Innovative Collaboration in Medicine and Law. In its inaugural “Florida POLST Newsletter” the Center openly linked to the Hemlock Society of Florida, mentioning its collaboration in a POLST legislative advocacy campaign.

Besides our fears about the aims of its national and state advocates, here is a list of specific dangers we find in this legislation:

1. The POLST concept would now move the physician to the front line in procuring a patient’s end-of-life care decisions. The Florida Statutes already authorize Advance Directives for this purpose. Advance directives are typically prepared by individuals in a reflective atmosphere with consultation from one’s family. This is the framework chosen by the legislature to best reflect patients’ real desires and to protect them from outside pressures. On the other hand, a brief face to face meeting with a physician is neither deliberative nor equal. In 1982 the President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research issued a report titled, Making Health Care Decisions: the Ethical and Legal Implications of Informed Consent in the Patient/Practitioner Relationship. That report stated at page 67:

A professional’s careful choice of words or nuances of tone and emphasis might present the situation in a manner calculated to heighten the appeal of a particular course of action.

It is well known that the way information is presented can powerfully affect the recipient’s response to it. The tone of voice and other aspects of the practitioner’s manner of presentation can indicate whether a risk of a particular kind with a particular incidence should be considered serious. Information can be emphasized or played down without altering the content, and it can be framed in a way that affects the listener…

Because many patients are often fearful and unequal to their physician in status, knowledge, and power, they may be particularly susceptible to manipulations of this type.

2. Once signed by the physician, the POLST form becomes an actionable medical order which would supercede the patient’s advance directive. If it is inconsistent with the advance directive, then the physician and the facility put themselves at odds with the patient’s express written instructions. Moreover, the consultative role of the patient’s family is eliminated. Conflicts of interest are created between physicians and their patients

3. The patient does not fill out the form. The physician does. It is thus his form, not the patient’s.

4. Florida Statute 765.110 (2) already
provides that a patient’s advance directive shall travel with the patient as part of the patient’s medical record. POLST forms are therefore unnecessary, unless one infers an implied intent in the bill to allow the advance directive to be undermined if a physician, on his own, intervenes.

5. The proposed bill did not contain a conscience clause that protects facilities or practitioners unable to follow a POLST order due to their ethical concerns.

6. POLST forms are typically based on a simplistic checklist. Such checklists are unreliable in the real world because information necessary for making good judgments about health care is complex and cannot be entirely foreseen ahead of time. The checklist is open to “one size fits all” abuse.

7. No witnesses are required for POLST. On the other hand Chapter 765 F.S. requires them for Advance Directives. Under POLST one has only the physician’s statement that the document reflects the patient’s wishes. There are no adequate patient safeguards.

8. Under existing state and federal constitutional law, once a patient has documented his or her preferences, the only person who may override those decisions is the patient, not a physician. POLST therefore impinges on patient self determination.

9. In states which have POLST, experience has demonstrated that POLST results in refusal of life sustaining treatments in numbers much greater than Advance Directives do (98.1% vs. 16.1%). Why would this be if there were not an inherent bias toward death in the POLST process?

Thankfully POLST was not passed this year. But we expect that the POLST bill will be filed once again in the upcoming 2017 legislative session. In the meantime, we would ask that our readers contact all the members of the Pinellas legislative delegation asking that they please work against and vote against POLST. The legislature should not cooperate with the Hemlock Society and other pro-euthanasia organizations which are pushing this bill. Here is the contact information for the Pinellas legislative delegation:

Senator Jack Latvala
26133 U.S. Highway 19 North
Suite 201
Clearwater, FL 33763
Tel: (727) 793-2797

Senator Arthenia Joyner
508 West Dr. Martin Luther King, Jr. Boulevard
Suite C
Tampa, FL 33603-3415
Tel:(813) 233-4277

Senator Jeff Brandes
9800 4th Street North
Suite 200
St. Petersburg, FL 33702
Tel:(727) 563-2100
Representative Chris Latvala
Suite 206
2963 Gulf to Bay Boulevard
Clearwater, FL 33759-4200
Tel: (727) 724-3000

Representative Darryl Rouson
Suite 312
535 Central Avenue
St. Petersburg, FL 33701-3703
Tel: (727) 552-3200

Representative Larry Ahern
Suite B
8383 Seminole Boulevard
Seminole, FL 33772-4392
Tel: (727) 395-2512
Representative Chris Sprowls
Suite 100
2364 Boy Scout Road
Clearwater, FL 33763-0901
Tel: (727) 793-2810

Representative Kathleen Peters
Suite 203
1700 66th Street North
St. Petersburg, FL 33710-5510
Tel: (727) 341-7385

Representative James Grant
12972 North Dale Mabry Highway
Tampa, FL 33618-2806
Tel: (813) 265-6272