We have been asked to consider whether a physician may decline to follow a Physician Orders for Life Sustaining Treatment (herein “POLST”) form.  Related questions also must be addressed: whether a POLST form is a legally binding document, and whether a POLST form travels with a patient beyond the physician or institution through which a form originated.

POLST Form is a Legally Binding Document: Because the POLST form originates in statute, it is a legally binding document that reflects the patient’s wishes surrounding life-sustaining treatment.  In contrast, typical non-POLST orders issued by a particular physician within a particular institution are binding only on those health care providers working within that institution.

POLST Form Travels with the Patient: The originating statute explicitly states that the POLST form is meant to be recognized, adopted, and honored across treatment settings—that is, without regard to the particular physician or institution originally authorizing the POLST form.  The POLST form’s mobility across treatment settings also is evidenced by the fact that a current treating physician and the patient may alter a POLST form when a new order would be more consistent with current medical information regarding the patient’s health status and goals of care.

Health Care Providers Must Follow POLST Forms, with Several Exceptions: The POLST statute states that health care providers “shall” treat an individual according to that individual’s POLST form.  Thus, POLST forms are not optional courses of treatment.  There are several exceptions to this requirement, however.

First, a physician or institution may decline to follow a POLST form when[:]

[1] it requires “medically ineffective health care,”

[2] requires health care contrary to accepted standards applicable to the provider or institution, or

[3] “for reasons of conscience.”

Nonetheless, the POLST form remains legally effective, such that the physician or institution must inform the patient and facilitate transfer of the patient to another physician or institution willing to comply with the form.

Second, rather than transfer the patient, a physician may conduct a new evaluation of the patient—in consultation with the patient or the patient’s legal health care decisionmaker—and issue a new POLST form based on current health information with the consent of the patient or the patient’s duly authorized representative.

a.                  POLST Overview

        Under California Assembly Bill No. 3000 (2008) (herein “AB 3000”), the California Probate Code was amended to include findings and declarations regarding health care planning, specifically addressing life-sustaining treatment.  AB 3000 defines the Physician Orders for Life Sustaining Treatment form—legally authorized for use throughout California as of January 1, 2009—as “a request regarding resuscitative measures that directs a health care provider regarding resuscitative and life-sustaining measures.”  Cal. Prob. Code § 4780(a)(3). 

The POLST form “complements an advance directive by taking the individual’s wishes regarding life-sustaining treatment, such as those set forth in the advance directive, and converting those wishes into a medical order.”  AB 3000 § 1(d).  The POLST form (1) is an immediately actionable and standardized medical order, (2) addresses the patient’s preferred range and intensity of treatments, (3) is a clearly identifiable form, printed on bright pink paper, and (4) is “recognized, adopted, and honored across treatment settings.”  AB 3000 § 1(e).

b.                  Exceptions to the POLST Form

i.                    Declining to Follow a POLST Form

The mandate of § 4781.2(a) does not apply if the POLST form “requires medically ineffective health care or health care contrary to generally accepted health care standards applicable to the health care provider or institution.”  Cal. Prob. Code § 4781.2(b).  Under Probate Code § 4734(a), a health care provider may decline to comply with an individual health care instruction or decision “for reasons of conscience” and, under § 4734(b), a health care institution may decline to comply with an individual health care instruction or decision if that instruction or decision “is contrary to a policy of the institution that is expressly based on reasons of conscience and if the policy was timely communicated to the patient or [the patient’s legal health care decisionmaker].”

ii.                  Procedures to be Followed when Declining to Follow a POLST Form

Although a physician or institution may decline to follow a POLST form for the limited reasons outlined above, the POLST form remains valid and legally enforceable.  As such, when declining to follow a health care instruction or decision, such as the POLST form, the provider or institution (1) must promptly inform the patient or the patient’s legal health care decisionmaker, (2) must make all reasonable efforts to assist in transferring the patient to another provider or institution “willing to comply with the instruction or decision,” and (3) must provide continuing care to the patient until transfer is accomplished or it appears transfer will not be accomplished.  Cal. Prob. Code § 4736(a)-(c).

iii.                Reevaluation and Creation of a New POLST Form

Rather than simply decline to follow a POLST form, a physician may conduct her own evaluation of the individual and, with the permission of the individual or the individual’s legal decisionmaker, issue a new order based on current health information.  Cal. Prob. Code § 4781.2(c).

c.                   Penalties

The AB 3000 amendments to the Probate Code mention criminal, civil, and administrative penalties only to say that health care providers who honor POLST forms will not be penalized.  Cal. Prob. Code § 4782.  Other sections of the Probate Code, however, are informative as to whether physicians or institutions may be penalized when declining to honor POLST forms.  A health care provider or institution acting in

good faith and in accordance with generally accepted health care standards applicable to the health care provider or institution is not subject to civil or criminal liability or to discipline for unprofessional conduct for any actions in compliance with this division, including . . . declining to comply with an individual health care instruction or health care decision, in accordance with Sections 4734 to 4736, inclusive. 

Cal. Prob. Code § 4740(d).

Providers or institutions that intentionally fail to act in good faith or act against generally accepted health care standards are “subject to liability to the aggrieved individual for damages of two thousand five hundred dollars ($2,500) or actual damages resulting from the violation, whichever is greater, plus reasonable attorney’s fees.”  Cal. Prob. Code § 4742.

d.                  Related Litigation

        As of the date of this memo, the DeArmond case is ongoing in the Superior Court of the County of Orange and, according to the case docket, no substantive rulings have been issued by the court.  A hearing is scheduled for May 1, 2013, described on the docket as regarding an “order to show cause re: dismissal.”