POLST stands for “Physician Orders for Life-Sustaining Treatment”. It is a next generation replacement for an Advanced Directive and DNR (“Do Not Resuscitate”) order. Advanced planning documents turn out to be less than useful, especially in urgent care settings, and many patients receive more aggressive care than they might want because universal, transferable physician orders are unavailable or, simply, not applicable because a patient is in a different care setting.

The POLST Form is a standardized form designed to convert wishes for life-sustaining treatments into medical orders. It was developed in Oregon, and has found its way into several states (in NY, for example, it is called MOLST, for “Medical Orders for Life-sustaining Treatment). POLST stands at the threshold of reality for the citizens of NJ in the form of Senate Bill Number 2197 (introduced July 19, 2010, sponsored by M.Teresa Ruiz, District 29, Essex and Union; and Loretta Weinberg, District 37, Bergen). The goal of this program is to “change the culture of end-of-life care.”

Companion legislation proposed by the same sponsors, Senate Number 2199, creates a NJ Advisory Council on End-of Life Care within the Department of Health and Senior Services.

The POLST legislation contains some very interesting provisions. “A healthcare professional,” it states, “shall not be subject to criminal or civil liability or to discipline… for professional misconduct for any action taken… to carry out the terms of the completed POLST Form…” However, “failure to act in accordance with the requirements” is subject to discipline.

The Commissioner of Health shall establish and operate a Statewide POLST Registry, as well as create and supervise a nine member POLST Registry Advisory Panel consisting of the Director of the Office of Emergency Medical Services, an assistant plus seven members to be appointed by the Commissioner consisting of a paramedic, hospice representative, a physician, hospital representative, nursing home representative, and two members of the general public, at least one of whom is a minority or member of an ethnic group.

The parallel bill creates another panel, this time called the “NJ Advisory Council on End-of Life Care” within the DHSS. The rationale for this creation finds itself in the Dartmouth Atlas of Health Care 2006 Study that found that more money is spent in the last six months of life in NJ than just about anywhere else in the USA. The goal of the Council would be to assure “compassionate and humane caring for patients who are terminally ill to preserve their peace and dignity.”

The Council consists of seventeen members: Commissioner of Health and Senior Services; two members from the Senate and General Assembly; 11 members to be appointed by the Governor with advice and consent who represent hospice programs, two physicians, hospital representative, nursing home representative, nursing representative, attorney, certified patient advocate, two members of the general public, one a racial minority or ethnic group representative. There are no specific recommendations for any clergy.

The stated “overriding” concern is “to promote an end-of-life care paradigm in which patients’ wishes are paramount” and provided with dignity and respect.

An act of law is potent stuff. It can spend. It can fine. It can punish and imprison. It can kill. It commands obedience. Somehow, though, one wonders, does the power of the law need to be invoked to assist acts of compassion or cultural acceptance and/or social engineering? What about medical ethics and the need to re-emphasize physicianly compassion?

Well, these proposed acts are, aside the humanitarian rhetoric, really an admission that the precedent laws of bioethics have failed. By 1999, Braddock’s study revealed that Informed Consent was poorly executed and as few as 9 percent of clinical decisions met the criteria for completeness of informed patient decision-making. And Informed Consent is perhaps the oldest of the attempts to put bioethical principles into law. Who today would denounce giving patients the information they needed to make informed decisions?

Advanced Directives may have found legal mandate, yet their promise remains unrealized. Most people do not have advanced directives, or do not use them adequately. Surveys show, for example, that chronic dialysis patients favor and support advanced directives in principle, but only 38 percent complete them.

The Patient Self-Determination Act (PSDA) “was enacted specifically because so few individual complete advance directives and because the living will plus its close relative, the durable power of attorney, were considered abject failures with respect to patient autonomy.” The PSDA was an utter failure. Indeed, one commentator suggested that the PSDA, rather than promoting autonomy for patients, actually did a disservice. It promoted the execution of uninformed and/or under-informed advance directives and thus undermined rather than protected self-determination of the patient.

Laws relative to organ donation and/or brain death continue to be contentious and frequently ill-advised. Laws regarding surrogate motherhood have been an equal disaster, both for the children as well as the parents and surrogates. Arguments over the patenting of the Human genome, or the “right to die”, or the direct-to-consumer advertising of prescription pharmaceuticals, or the comparisons of superiority of one insurance plan compared to another, or the abortion debate or the stem cell debate, etc. all bespeak the altered medical, ethical, social and legal landscape, and just how poorly we have performed in addressing these societal needs through law.

It has become common to assert that the law is good even if badly applied. It is ironic that our ability to decide for ourselves and to retain some measure of control over our own destinies now by implication requires the “infinite” wisdom of central planning, especially when once the issue was individual freedom of choice and autonomy. Ever new and more ambitious proposals are created to make the “good” idea work. Is it not time to consider tools besides the law that might better serve our ends? Or is there some reason to believe that Utopia can only be legislated into existence?

At issue is not whether or not rationing or death panels or insurance coverage or legal mandates or government interventions are needed or will succeed, but simply is it good and sensible public policy to create legalized and narrow standards? And that the execution of policy then is entrusted to committees or councils of “designated strangers”?

The likelihood for conflict of interest and the ultimate destruction of patient autonomy and with it the final vestiges of trust in the medical professions loom far greater than the promise of “compassionate end-of-life” cost savings these proposed laws are attempting to achieve.

POLST, PSDA, EOL, DNR: changing the lyrics does not alter the melody. What is left of freedom? What is left of trust?

Jeffrey Hall Dobken is an assistant clinical professor of pediatric immunology and allergy, and certified bioethicist at Weill Cornell School of Medicine in New York City.

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