by Karl Steinberg, MD, CMD, HMDC

Although CALTCM generally does not take positions on most pending legislation, our Board of Directors felt that AB 937 was sufficiently disturbing to warrant formal opposition to this bill, which if passed would make it more difficult to change a patient’s orders regarding intensity of treatment as their medical condition and prognosis changes.  The text of the bill is available online, click here.

This bill is being sponsored by the Bar Association, and the reasoning behind it is that under current law, if there is a conflict between two documents regarding resuscitative treatment, the more recent of the two takes precedence, which allows a “legally recognized healthcare decisionmaker” (LRHCDM) to change orders—which can be used to do something that might be against the patient’s own expressed wishes.  From a practical standpoint, current law makes sense, since the more current document is based on what has happened medically, and on whatever the patient may have said in the interval between the two documents—not based on whatever the patient wanted in the past when their situation was different.  In some cases, an advance directive may be executed years or even decades earlier, when a person is healthy and may desire aggressive treatments—then the document is never changed.  Unfortunately, if this law were passed, it would not allow any person not explicitly named as an agent with power of attorney for health care to make decisions on the patient’s behalf—even a spouse.  Treatment decisions would default to the last order or expression of wishes the patient made when they had decision-making capacity.

CALTCM members will no doubt immediately see how this will prove to be problematic.  For example, a healthy 67-year-old woman comes to a nursing home for rehab after a knee replacement and is asked to complete a POLST (inappropriately, because POLST is meant to be used in patients who are seriously ill and nearing death, not for everyone).  When she discusses the form with her attending physician, she says, “Yes, of course I would want to be resuscitated if I had some kind of arrest.”  So, the POLST is executed as full code, full treatment.  Now, fast forward 10 years and she has developed severe dementia and has lost decision-making capacity.  She goes to the hospital for abdominal pain and is found to have extensive metastatic colon cancer.  Her husband says to the physician, “We never specifically talked about it, but I know she would not have wanted any aggressive treatment in this condition.”  If AB 937 passes, the only way to make her DNR/Comfort-focused treatment would be to get a court order.  That would certainly be an unfortunate scenario, but one that could easily occur.

AB 637 would allow for legal conservators and agents named in an advance health care directive to change orders.  But it would take away the ability of family members or other people who best knew the patient to direct care, if the patient had done any previous documentation of wishes—they would basically be forever sentenced to whatever they had previously written, no matter how long ago or how different their reality then compared to now.

Certainly, the concept of a legally recognized healthcare decisionmaker as laid out in AB 3000 and the POLST form is somewhat fuzzy, which seems to make the sponsors of this bill uncomfortable.  But real life is often fuzzy, and it’s not always a spouse or adult child who best knows or can speak for the patient.  In any event, the sponsors seem to fear that rogue physicians will somehow pick and choose the family member who most closely voices the physician’s idea of what is in the patient’s best interest, and let them make the decisions, ignoring what the patient would have wanted.   We have seen no evidence to suggest that this is a commonplace occurrence, or that family members are making decisions that go against what the patient would have wanted.

In any event, there are protections built right into the POLST form:   the person who is authorized to make decisions on behalf of the patient is obligated to sign this attestation: “By signing this form, the legally recognized decisionmaker acknowledges that this request regarding resuscitative measures is consistent with the known desires of, and with the best interest of, the individual who is the subject of the form.”  And the physician must attest: “My signature below indicates to the best of my knowledge that these orders are consistent with the patient’s medical condition and preferences.”

We think the author and sponsors of this bill have good intentions.  Nobody wants that niece from back East to blow in and do something that totally goes against our patients’ wishes.  But current law has adequate protections.  That should not happen with diligent, ethical physician involvement, even in the unusual case where a family member may have ulterior motives.  In fact, in a great majority of cases, patients want their family members to speak on their behalf if they become incapacitated.  And their desires for medical treatment do change over the course of their illness.  This is true even when they have not specifically designated someone on paper.  And for those who do not want family members participating in their medical treatment decisions, they can memorialize that in documents like an Advance Directive or a POLST form—such as explicitly excluding a particular family member from any health care decision-making.

If passed, this law would take away a loved one’s ability to change treatment preferences when it becomes appropriate based on what the patient would have wanted, if there were a pre-existing form with previously expressed wishes at a different point in their life and illness trajectory.  They would basically be punished for not having updated their directives—which many people in fact do not remember to do.

The California Medical Association has stopped short of formally opposing this bill, but has sent a letter of concern.  The Coalition for Compassionate Care of California is opposing the bill, and I have appeared before the Assembly Judiciary Committee and the Assembly Health Committee to testify in opposition to this bill on behalf of CALTCM and the CCCC.  (For those who are really interested, you can see the hearing in the Health Committee here: http://calchannel.granicus.com/MediaPlayer.php?view_id=7&clip_id=4525; the bill is discussed starting at 25:25 and my testimony starts around 29:30.)  Both of these committees have voted in favor of moving the bill to the Assembly at large, and there appears to be a good chance it will pass.  Our efforts will now concentrate on the Senate.  Any CALTCM members who have connections to their state senators, we would appreciate your support in defeating this ill-advised, overly complex, confusing and unnecessary piece of legislation.  If you do have a connection to your legislators, please let us know.