Of proxies and POLSTs: The good and the bad in end-of-life planning

Fr. Tadeusz Pacholczyk

Planning for end-of-life situations is important. We should put in place an advance directive before our health takes a serious turn for the worse and we are no longer able to indicate our own wishes or make our own decisions. Advance directives can be of two types: living wills and health care agents.

The best approach is to choose a health care agent (a.k.a. a “proxy” or a “durable power of attorney for health care”). Our agent then makes decisions on our behalf when we become incapacitated. We should designate in writing who our health care proxy will be. The National Catholic Bioethics Center (www.ncbcenter.org) and many individual state Catholic conferences offer helpful forms that can be used to designate our proxy. Copies of our completed health care proxy designation forms should be shared with our proxy, our doctors, nurse practitioners, hospice personnel, family members and other relevant parties.

In addition to choosing a health care proxy, some individuals may also decide to write up a living will in which they state their wishes regarding end-of-life care. Living wills raise concerns, however, because these documents attempt to describe our wishes about various medical situations before those situations actually arise, and may end up limiting choices in unreasonable ways. Given the breathtaking pace of medical advances, a person’s decisions today about what care to receive or refuse may not make sense at a later timepoint. In the final analysis, it is impossible and unrealistic to try to cover every medical situation in a living will, and it is preferable to have a proxy, a person we trust, who can interact with the hospital and the health care team, weigh options in real time, and make appropriate decisions for us as we need it.

A new type of living will known as a “POLST” form — a tool for advance planning — also raises concerns. The POLST form (which stands for Physician Orders for Life Sustaining Treatment) is a document that establishes actionable medical orders for a patient’s healthcare. The form is typically filled out with the help of trained “facilitators” — usually not physicians — who ask questions about patients’ health care wishes, and check boxes on the form that correspond to their answers. The facilitators receive training that can lead them to paint a rather biased picture of treatment options for patients, emphasizing potential negative side effects while side-stepping potential benefits or positive outcomes.

POLST forms thus raise several significant moral concerns:

1. The approach encouraged by the use of POLST forms may end up skewed toward options of non-treatment and may encourage premature withdrawal of treatments from patients who can still benefit from them.

2. Filling out a POLST form may preclude a proxy from exercising his or her power to protect the rights of the patient, since the form sets in motion actual medical orders that a medical professional must follow. As a set of standing medical orders, the POLST approach is inflexible. Many POLST forms begin with language like this: “First follow these orders, then contact physician or health care provider.” Straightforwardly following orders created outside of a particular situation may be ill-advised, improper and even harmful to the patient.

3. In some states, the signature of the patient (or his or her proxy) is not required on the POLST. After the form has been filled out, it is typically forwarded to a physician (or in some states to a nurse practitioner or a physician’s assistant) who is expected to sign the form. Thus, in some states, a POLST form could conceivably be placed into a patient’s medical record without the patient’s knowledge or informed consent. In a recent article about POLST forms in the Journal of Palliative Medicine, approximately 95 percent of the POLST forms sampled from Wisconsin were not signed by patients or by their surrogates. Fortunately, in some other states like Louisiana, the patient’s signature or the signature of the proxy is mandatory for the form to go into effect.

The implementation of a POLST form can thus be used to manipulate patients when they are sick and vulnerable, and can even lead to mandated orders for non-treatment in a way that constitutes euthanasia. The POLST template represents a fundamentally flawed approach to end-of-life planning, relying at its core on potentially inappropriate medical orders and dubious approaches to obtaining patient consent.

Notwithstanding the pressure that may be brought to bear on a patient, no one is required to agree to the implementation of a POLST form. Patients are free to decline to answer POLST questions from a facilitator, and should not hesitate to let it be known that they instead plan to rely on their proxy for end-of-life decision making, and intend to discuss their healthcare options uniquely with their attending physician.

 

COMING UP: The Pell case: Developments down under

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In three weeks, a panel of senior judges will hear Cardinal George Pell’s appeal of the unjust verdict rendered against him at his retrial in March, when he was convicted of “historical sexual abuse.” That conviction did not come close to meeting the criterion of guilt “beyond a reasonable doubt,” which is fundamental to criminal law in any rightly-ordered society. The prosecution offered no corroborating evidence sustaining the complainant’s charge. The defense demolished the prosecution’s case, as witness after witness testified that the alleged abuse simply could not have happened under the circumstances charged — in a busy cathedral after Mass, in a secured space.

Yet the jury, which may have ignored instructions from the trial judge as to how evidence should be construed, returned a unanimous verdict of guilty. At the cardinal’s sentencing, the trial judge never once said that he agreed with the jury’s verdict; he did say, multiple times, that he was simply doing what the law required him to do. Cardinal Pell’s appeal will be just as devastating to the prosecution’s case as was his defense at both his first trial (which ended with a hung jury, believed to have favored acquittal) and the retrial. What friends of the cardinal, friends of Australia, and friends of justice must hope is that the appellate judges will get right what the retrial jury manifestly got wrong.

That will not be easy, for the appellate judges will have been subjected to the same public and media hysteria over Cardinal Pell that was indisputably a factor in his conviction on charges demonstrated to be, literally, incredible. Those appellate judges will also know, however, that the reputation of the Australian criminal justice system is at stake in this appeal. And it may be hoped that those judges will display the courage and grit in the face of incoming fire that the rest of the Anglosphere has associated with “Australia” since the Gallipoli campaign in World War I.

In jail for two months now, the cardinal has displayed a remarkable equanimity and good cheer that can only come from a clear conscience. The Melbourne Assessment Prison allows its distinguished prisoner few visitors, beyond his legal team; but those who have gone to the prison intending to cheer up a friend have, in correspondence with me, testified to having found themselves cheered and consoled by Cardinal Pell — a man whose spiritual life was deeply influenced by the examples of Bishop John Fisher and Sir Thomas More during Henry VIII’s persecution of the Church in 16th-century England. The impact of over a half-century of reflection on those epic figures is now being displayed to Cardinal Pell’s visitors and jailers, during what he describes as his extended “retreat.”

Around the world, and in Australia itself, calmer spirits than those baying for George Pell’s blood (and behaving precisely like the deranged French bigots who cheered when the innocent Captain Alfred Dreyfus was condemned to a living death on Devil’s Island) have surfaced new oddities — to put it gently — surrounding the Pell Case.

How is it, for example, that the complainant’s description of the sexual assault he alleges Cardinal Pell committed bears a striking resemblance — to put it gently, again — to an incident of clerical sexual abuse described in Rolling Stone in 2011? How is it that edited transcripts of a post-conviction phone conversation between the cardinal and his cathedral master of ceremonies (who had testified to the sheer physical impossibility of the charges against Pell being true) got into the hands (and thence into the newspaper writing) of a reporter with a history of anti-Pell bias and polemic? What is the web of relationships among the virulently anti-Pell sectors of the Australian media, the police in the state of Victoria, and senior Australian political figures with longstanding grievances against the politically incorrect George Pell? What is the relationship between the local Get Pell gang and those with much to lose from his efforts to clean up the Vatican’s finances?

And what is the state of serious investigative journalism in Australia, when these matters are only investigated by small-circulation journals and independent researchers?

An “unsafe” verdict in Australia is one a jury could not rationally have reached. Friends of truth must hope that the appellate judges, tuning out the mob, will begin to restore safety and rationality to public life Down Under in June.

Featured image by CON CHRONIS/AFP/Getty Images