END-OF-LIFE CARE: THE NEW JERSEY PHYSICIAN ORDERS FOR LIFE-SUSTAINING TREATMENT ACT (“POLST”)
 
By: Jillian L. Romaniello, Esq.

Background

As the national conversation on health care becomes increasingly focused on end-of-life care and, more specifically, the quality of such care, states have become progressively interested in providing patients with a clear and efficient manner in which to direct their end-of-life care choices. On July 1, 2012, New Jersey enacted the Physician Orders for Life-sustaining Treatment Act.1 The law created a form, called the POLST form2, to be used as a directive for end of life care in New Jersey. A POLST form is a medical order signed by the patient and the patient’s attending physician or advanced practice nurse (“APN”). It is recommended for use by patients who have an advanced chronic progressive illness, a life expectancy of less than five years or who otherwise want to set forth their preferences for end of life care. The POLST form is generated on green paper.3 
 
POLST v. Advance Directives v. Do Not Resuscitate Orders (“DNR”)

The POLST form is not meant to replace or be an alternative to an advanced directive. Ideally, the POLST form will serve as a companion to an advanced directive. Advanced directives are not always readily accessible during an emergency. The POLST form is designed be readily accessible to health care providers and is intended to accompany the patient and be honored by all personnel attending the patient in many settings, such as home, a healthcare institution or in a medical emergency.
 
A valid DNR order on a patient dated prior to July 1, 2012, that is not part of a POLST form, will remain valid. If the patient has multiple documents (for example, a pre-2012 DNR, an Advance Directive and a POLST) and the documents contain conflicting information, the physician or provider should always follow the wishes set forth in which ever document was created last.
 

What Does POLST Include?
 
The POLST form includes six distinct sections as follows: (i) Goals of Care – general goals of care, treatment and/or quality of life; (ii) Medical Interventions/Level of Treatment – full, limited or symptom treatment only; (iii) Artificially Administered Fluids and Nutrition – none, for a defined trial period or long term; (iv) Cardiopulmonary Resuscitation (“CPR”) – attempt or do not attempt and Airway Management – use, limited use or no use; (v) Surrogate Decision Maker - the patient has the option to appoint a surrogate decision maker; and (vi) Signature/Anatomical Gift – the patient has the option to note whether the patient has made any anatomical gifts.
 
A valid POLST must contain dated signatures in addition to information indicating a patient’s health care preferences. If any section of the POLST form is left blank, the physician or provider should treat the section as if the patient elected full treatment.
 
 
Voluntary but Binding

It is entirely voluntary for a patient to fill out a POLST form. Additionally, a patient or the patient’s surrogate (if the patient has lost his or her decision making capacity) may modify or void a POLST form at any time. A request to modify the form may be oral or in writing. In order to void a POLST form, the patient or physician should draw a line through the document and write “VOID” in large letters. The physician or the patient should then sign and date the line.
 
Once a patient has a completed POLST, the physician, health care institution, or emergency care provider must treat a patient in accordance with the information contained on the POLST form. Nevertheless, a private religiously-affiliated healthcare institution is not required to withhold or withdraw a specified measure of life-sustaining treatment in a manner contrary to any of its written institutional policies and practices. The institution must properly communicate these policies and practices to the patient or surrogate upon admission or as soon as practicable, and, if the policies and practices appear to conflict with the patient’s legal rights, the parties must attempt to resolve the conflict. If the parties cannot come to an agreement, the institution must take all reasonable steps necessary to transfer the patient to another healthcare institution that can comply with their wishes. This should be done in a respectful and timely manner so that the patient is not abandoned.4 
 
 
Liability

A healthcare professional, health care institution or emergency care provider will not be subject to criminal or civil liability, discipline by a health care institution or state licensing board for professional misconduct  for any action taken to carry out the terms on the POLST form that was performed in good faith in accordance with the POLST Act. The withholding of life-sustaining treatment pursuant to a completed POLST form, when such actions are performed in good faith and in accordance with the POLST form and the Act, will not constitute homicide, suicide, assisted suicide or active euthanasia.  
On the contrary, a healthcare provider who intentionally fails to comply with the POLST Act will be subject to discipline for professional misconduct and a healthcare institution that intentionally fails to comply with the Act will be subject to a civil penalty of not more than $1,000 for each offense. Each violation is considered a separate offense.  An emergency care provider who intentionally fails to comply with the Act will be subject to such disciplinary procedures as the commissioner deems necessary.
 
 
Conclusion

It is anticipated that there will be a standardized, federal form equivalent to MOLST enacted that will take the place of all such state forms. Until such time as there is a national, standardized form, it is important to review forms not only from your state of practice but from neighboring states as well as states from which you may see patients. For example, in New York, the MOLST is the only form authorized under state law for documentation of non-hospital DNR and DNI orders. More information about end-of-life care programs similar to MOLST in other states can be found on the website maintained by the National POLST Paradigm; www.polst.org.
 
 


1N.J.S.A. 26:2H-129 et seq.
2The POLST form may be found at http://www.njha.com/media/84188/NJPOLSTFORM.pdf.  
3Although it is recommended that it be on green paper for uniformity and high visibility, photocopies of the form are valid and are not required to be on green paper. As a practical matter, copies should be kept to a minimum in the event of a modification or revocation to avoid confusion.
4N.J.S.A. 26:2H-134
 

Kern Augustine Conroy & Schoppmann, P.C., Attorneys to Health Professionals,www.DrLaw.com, is solely devoted to the representation of physicians and other health care professionals. The authors of this article may be contacted at 1‐800‐445‐0954 or via email at JRomaniello@DrLaw.com