The NPC Research and Quality Assurance Committee Report and Recommendations on the new UHCDA bill
Concern: the UHCDA would permit health care providers to (in some circumstances) override patient wishes on a POLST because “Health care instruction” was framed broadly enough to encompass POLST.
Possible suggestion: these concerns be raised if and when a particular state legislature is considering adopting the language. Since the Uniform Commission’s work is done, there is no way to change the UHCDA. It is up to the states to consider and adopt some of all of the language.
The listed situations in which health care providers (individuals or entities) would be able to override a POLST are well-worn, and some may be a matter of constitutional law (e.g. a health care provider’s ability to refuse to provide care that violates their own religious beliefs – e.g. 1st amendment issues).
Areas where “health-care instruction” can be inferred to include medical orders such as POLST:
On page 4 of the attachment, the definition is given:
(13) “Health-care instruction” means a direction, whether or not in a record, made by an individual that indicates the individual’s goals, preferences, or wishes concerning the provision, withholding, or withdrawal of health care. The term includes a direction intended to be effective if a specified condition arises.
In Section 7. Health-Care Instruction, please notice subsection (c ) which explicitly mentions a medical order.
(c) A health-care instruction made by an individual that conflicts with an earlier health-care instruction made by the individual, including an instruction documented in a medical order, revokes the earlier instruction to the extent of the conflict.
Here is the comment in the Act regarding subsection (c ):
Subsection (c) addresses the issue of multiple instructions. It provides that the most current instruction governs, regardless of the location of the instruction. For example, if a medical order (including a POLST, sometimes referred to as a Physician Order for Life Sustaining Treatment) recorded an individual’s preference inconsistent with the individual’s preference stated in a previously created advance directive, the direction in the medical order would govern. Similarly, if the medical order recorded a preference, and an individual subsequently provided a different instruction, the subsequent instruction would govern.
The definition is of concern because in another section of the Act it discusses when a health care provider can override a health care instruction.
The following on page 56 in Section 24 could lead to EMS overriding a POLST form that requests limitations on CPR or other potentially life-sustaining interventions.
(d) A health-care professional who is an [emergency medical responder] is not liable under subsection (c) for a violation of Section 21(e)* if:
(1) the violation occurs in the course of providing care to an individual experiencing a health condition for which the professional reasonably believes the care was appropriate to avoid imminent loss of life or serious harm to the individual;
(2) the failure to comply is consistent with accepted standards of the profession of the professional; and
(3) the provision of care does not begin in a health-care institution in which the individual resides or was receiving care.
*(e) Except as provided in subsections (f) and (g), a health-care professional or health-care institution providing health care to an individual shall comply with:
(1) a health-care instruction given by the individual regarding the individual’s health care;
(2) a reasonable interpretation by the individual’s surrogate of an instruction given by the individual; and
(3) a health-care decision for the individual made by the individual’s surrogate in accordance with Sections 17 and 18 to the same extent as if the decision had been made by the
individual at a time when the individual had capacity.
(f) A health-care professional or a health-care institution may refuse to provide health care consistent with a health-care instruction or health-care decision if:
(1) the instruction or decision is contrary to a policy of the health-care institution providing care to the individual that is based expressly on reasons of conscience and the policy
was timely communicated to the individual or to the individual’s surrogate;
(2) the care would require health care that is not available to the professional or
(3) compliance with the instruction or decision would:
(A) require the professional to provide care that is contrary to the professional’s religious belief or moral conviction if other law permits the professional to refuse
to provide care for that reason;
(B) require the professional or institution to provide care that is contrary to generally accepted health-care standards applicable to the professional or institution; or
(C) violate a court order or other law.
(g) A health-care professional or health-care institution that refuses to provide care under subsection (f) shall:
(1) as soon as reasonably feasible, inform the individual, if possible, and the individual’s surrogate of the refusal;
(2) immediately make a reasonable effort to transfer the individual to another health-care professional or health-care institution that is willing to comply with the instruction or
(A) if care is refused under subsection (f)(1) or (2), provide life-sustaining care and care needed to keep or make the individual comfortable, consistent with accepted
medical standards to the extent feasible, until a transfer is made; or
(B) if care is refused under subsection (f)(3), provide life-sustaining care and care needed to keep or make the individual comfortable, consistent with accepted medical
standards, until a transfer is made or, if the professional or institution reasonably believes that a transfer cannot be made, for at least  days after the refusal.