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Marshall B. Kapp, JD, MPH

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.kapp @ med.fsu.edu. Agenda. POLST Paradigm Concept

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Marshall B. Kapp, JD, MPH

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  1. 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.kapp@ med.fsu.edu

  2. Agenda • POLST Paradigm • Concept • Implementation thus far • Florida’s experience • Need for Legal Action? • TJ • Concept • Applied to POLST Paradigm

  3. Plan of Action—Using TJ to Support Legal Action that Promotes POLST Implementation • Research agenda • Implementation strategy

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

  5. POLST—Implementation Thus Far • www.POLST.org • As of July 2013: • 2 Mature States (Oregon, W.Va.) • 14 Endorsed States • 27 Developing States (Florida) • Legislation • Regulation • Clinical consensus

  6. POLST—The Florida Strategyhttp://med.fsu.edu/medlaw/polst • Fla. Stat. ch. 765—Advance directives, surrogate and proxy decision making • Fla. Stat. ch. 709—Durable power of attorney • Fla. Stat. ch. 744—Guardianship • Florida Stat. §401.45 (3)—Do Not Resuscitate orders, implemented by Fla. Admin. Code r. 64B8-9.016 (DOH Yellow Form)

  7. 5+ pilot programs around state • Continual conversations and communications among institutional, academic, and community leaders • Professional and public education efforts • Where next? Changing the law??

  8. The Need for Legal Action? • Statutory changes? Placement? • Chap. 765? • Failed House Bill 1017, 2006 Leg. Reg. Sess. (Fla. 2006) (identical to S. 2572, 2006 Leg. Reg. Sess. (Fla. 2006)). • Chap. 401.45? • Regulatory changes? Alternative or supplement to statutory changes? Legislative authorization? Which agencies should have authority? Inter-agency coordination?

  9. 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.

  10. 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. • Physician reluctance to write POLSTs • Provider reluctance to honor POLSTs

  11. Can Therapeutic Jurisprudence (TJ) Be the Basis for Legal Action Leading to POLST Implementation? • TJ concept: Analytic, interdisciplinary lens that inquires into the psychological effects of legislation, regulation, or judicial decisions on the law’s intended beneficiaries

  12. Applying TJ lens to POLST • What are the 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?

  13. 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)

  14. 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)

  15. How would legislation or regulation enhance promotion of the POLST goals? • Encourage communication with patients/families • Encourage the writing and implementation of POLSTs by reducing providers’ legal anxieties

  16. Action Plan • Using TJ to Support Legal Action that Promotes POLST Implementation • Research Agenda • Process measures • Outcome measures • Implementation/Advocacy strategy • Codification of a proven, widespread practice

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