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Posted on June 15, 2013 at 2:58 PM

In both Maryland and Vermont, a clinician can write a POLST order indicating “no CPR” even without patient or surrogate consent.  Regulations in both states authorize the entry of a “do not attempt resuscitation” order on a POLST on the basis that CPR would be “futile” or “medically ineffective.”  This “no consent” option is clearly printed right on the POLST form.

California law similarly provides that while “a health care provider shall treat an individual in accordance with a POLST form,” that requirement “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.”  But unlike Maryland and Vermont, the “no consent” option is not printed on the POLST form itself

Nevertheless, this has not prevented California providers from utilizing this option.  For example, Dominican Hospital in Santa Cruz, rewrote a patient’s POLST contrary to his prior expressed wishes, apparently on the ground of medical ineffectiveness.  Of course, since the patient was unbefriended / unrepresented, there was little risk that such a decision would be challenged.  It is unclear that clinicians would rewrite a POLST on grounds of ineffectiveness in the face of surrogate opposition.   

Many states have long allowed clinicians to unilaterally refuse (surrogate-, agent-, or surrogate-requested) treatment that is “medically ineffective” or that is “contrary to generally accepted health care standards.”  But since there is significant uncertainty about when those standards are satisfied, clinicians have generally declined to avail themselves of such safe harbors.  It is unclear, yet, whether analogous POLST safe harbors will be any more effective.

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