AB 937 Gutted and Amended

by Karl Steinberg, MD, CMD, HMDC

We are happy to report that as of June 18, 2018, Assemblymember Susan Eggman has withdrawn her bill, AB 937, that would have made it very difficult to change code status if a person made a request regarding resuscitative measures, then lost decisional capacity.  The WAVE has covered AB 937 in detail previously, so we will not go over the entire history here. However, this bill passed the Assembly last year with support from the Ombudsman Association, Disability Rights California, the California Lawyers Assocation’s Trusts and Estates Section, CANHR and others. CALTCM and the Coalition for Compassionate Care of California (CCCC) were the only organizations formally opposed, and the California Medical Association issued a letter of concern but stopped short of formal opposition.

This year, the bill was set to move in the Senate, but with increased grass-roots opposition from many individual CALTCM and CMA members and others, from the American Cancer Society’s Cancer Action Network, and with the threat of formal opposition from CMA, the author decided to pull the bill before it was discussed in committee. CALTCM lauds Assemblymember Eggman for choosing not to promulgate this bill, which would have caused much suffering and would add additional unnecessary complexity to the surrogate decision-making process.  However, we also recognize that there are situations where a family member may make decisions that are inconsistent with a patient’s values. While under current law, that should not happen, it is a real concern, and we support efforts to improve the process.

In particular, the integrity of the POLST process in nursing homes is not always maintained in accordance with best practices.  POLST should not be utilized as a code status document for all nursing home residents, yet it is standard practice to hand out POLST forms to all admissions in some nursing homes.  POLST is intended for people who are in the last year or so of life and are seriously ill, not for every nursing home resident. By filling out POLST forms in patients who are not that ill and who (of course) want to default to usual care (i.e., CPR, defibrillation, intubation) in the case of a cardiac arrest, these facilities are memorializing a request that applies to the patient’s current situation but does not take into account their future condition, such as after they have developed severe dementia and a widely metastatic, terminal malignancy.  Most patients want a family member to speak for them if they lose capacity and if their condition and prognosis change—and this bill would have taken away that ability for the majority of patients.

We need to do better in our nursing facilities.  POLST should be offered only to patients who are seriously ill.  POLST should reflect a deep and conscientious conversation about goals of care and end-of-life interventions, not just a checkbox form that a doctor signs without even confirming that a conversation has occurred (or worse yet, signing a blank form!)  We hope that none of our WAVE readers would sign a POLST without a rich conversation with the patient or family member, but there seem to be a few bad players out there who harm the reputation of all of us who are trying to do the right thing and ensure our patients get the care they want to get, but don’t get the kinds of treatment that they prefer to avoid.