Advanced Care Planning Panel
HOSPICE AND PALLIATIVE CARE
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09:08 AM -- Advanced Care Planning Panel
Jennifer Ballentine, Colorado Center for Hospice and Palliative Care, began her presentation on advance care planning and advance directives in Colorado. She distributed a copy of her presentation to the committee (Attachment B). She described advance care directives and advance care planning as decisions, choices, or preferences that an individual makes ahead of time with applicability to future events. She stated that advance care planning assumes that a competent adult or adult with decision-making capacity will be making decisions. She indicated that such advance decisions include the right to refuse any treatment at any time for any reason and the right to determine what types of treatment may be used when incompetent.
Ms. Ballentine described a living will and explained that a living will directs withdrawal of life-sustaining treatment and may be used to authorize removal of artificial nutrition. She stated that in order to authenticate a living will, an individual must be of sound mind and be at least 18 years of age. She stated that it must be signed when the individual is competent and must be witnessed by two individuals. She stated that a living will cannot be executed or overridden by a surrogate. She explained that problems with a living will occur when the document is not available or when a family member resists its implementation.
Ms. Ballentine gave an overview of a Medical Durable Power of Attorney (MDPA). She explained that a MDPA is a designation of a surrogate decision-maker with the same authority as the principal. She stated that in order to authenticate a MDPA, an individual must be at least 18 years of age and of sound mind. She indicated that a MDPA is useful because it is difficult to anticipate circumstances regarding an individual's medical treatment. She stated that the MDPA is entered as part of the individual's medical history and cannot be overridden by a living will or a CPR directive. The committee discussed possible ways to make advance directive documents more accessible. One suggestion was to establish a central registry for advanced directives. Ms. Ballentine continued her presentation by discussing what can go wrong with the use of MDPAs, for instance, sometimes the agent is not informed, the document may not be available, there is insufficient instruction, or there are family disputes. She stated that its the most efficient way to implement wishes regarding end-of-life care, but there are still problems with MDPAs.
Ms. Ballentine described the CPR directive, which is a statement of refusal of cardiopulmonary resuscitation. To be valid, a CPR directive must be signed by a physician and the individual requesting the directive must be at least 18 years old. She stated that a CPR directive is most appropriate for elderly persons and individuals with a terminal condition. She stated that one of the difficulties of using a CPR directive is that unless it is posted, carried, and presented to emergency medical technicians, it may not be honored.
Ms. Ballentine described the Five Wishes form, which is an "omnibus" advance directive. She stated that it is user-friendly and process-oriented. The Five Wishes form includes information most useful for a hospice but not as useful for doctors and attorneys. Ms. Ballentine discussed the process of the designation of a health care proxy as specified in Colorado state law. Ms. Ballentine stated that Colorado law does not set out a hierarchy of surrogates in Colorado whereas other states are more prescriptive in designation. She indicated that interested parties must reach consensus and appoint a proxy. Ms. Ballentine discussed recent legislation that created designated beneficiary agreements which are agreements between non-married adults which confer certain rights, especially with regard to inheritance and medical decisions. She discussed possible problems with designated beneficiary agreements, stating that people may not be aware of the existence of such agreements. She referenced a chart describing the various provisions of each of the forms discussed during her presentation (Attachment C). She stated her support for clarification and streamlining of the forms. She responded to questions from the committee.
Michael Kirtland, Colorado Bar Association, Advanced Directives Joint Task Force, distributed a draft statute to the committee (Attachment D). Mr. Kritland explained that the draft updates the living will statute. Mr. Kirtland discussed the Terri Schaivo case and stated that one of the issues involved with that case involved a lack of definition for a "persistent vegetative state." He stated that there is currently no definition of "persistent vegetative state" in Colorado law and that advancements in medical technology have led to issues which must be addressed. He stated that the draft legislation attempts to update statutes to encompass these situations. Mr. Kirtland explained that designated beneficiary agreements would are recorded with the Secretary of State rather than with county clerks. The committee discussed continuing education requirements for attorneys regarding changes in advance directive laws, establishing a central registry for advance directive forms, and which state entity would be responsible for the registry.
Mr. Kirtland stated that there is not consensus about the information an advance directive form should include. He stated that for example, Colorado law does not define nutrition and hydration and whether they are considered to be life-sustaining treatment. There committee discussed the terms "nutrition" and "hydration" and how the terms are used in statute and other end-of-life directives. Mr. Kirtland stated that both terms are used synonymously and because of this raise legal issues related to physician or individual choices for end-of-life decisions. Representative Roberts discussed possible objections among medical professionals to not having a standardized form for living wills.
Susan Fox, Buchanan and Stouffer, distributed two handouts, a handout concerning proposed changes in the existing medical durable power of attorney statute and a handout concerning potential changes in the existing proxy decision-making statute (Attachments E and F). She stated that in addition to the directives described by Ms. Ballentine, there are directives related to disposition of last remains and health care benefits. She discussed issues related to individuals who are "unbefriended" and institutionalized. She stated that there are models for addressing the needs of these patients, including having a caregiver become the patient's representative. She stated that there are at least four states that utilize an ethics committee to address the needs of unbefriended patients. She responded to questions from Representative Soper regarding groups that work with homeless individuals who may have some experience serving as an advocate for patients.
The committee recessed briefly.
The committee reconvened. Dr. David Koets, Denver Hospice, distributed a copy of his presentation to the committee (Attachment G). Dr. Koets described the Colorado Advance Directives Consortium, which includes representatives from the medical community, the legal community, the legislature, the Colorado Department of Public Health and Environment, long-term care facilities, the Colorado Center for Hospice and Palliative care, and other organizations concerned with advance directives.
Dr. Koets addressed some of the barriers to completion of advance directive forms and advance care planning. He stated that some of the barriers to completion of advance directives include:
- a belief that physicians should initiate discussions;
- discomfort with the topic;
- procrastination or apathy;
- a belief that family should make decisions;
- a belief that family members would be upset by the planning process; and
- a fear of burdening family members.
For physicians, some barriers to completion of advance directive with patients include:
- a belief that patients should initiate discussions;
- discomfort with the topic;
- time constraints;
- lack of knowledge regarding advance directives;
- negative attitudes; and
- perceptions of failure.
In response to a question from Senator Newell, Dr. Koets stated he believed physicians would have more conversations about advance directives if they were reimbursed for the conversations.
Dr. Koets discussed the Physician Orders for Life Sustaining Treatment (POLST) paradigm. Similar forms include the Medical Orders for Life Sustaining Treatment (MOLST), Physician Orders for Scope of Treatment (POST), and Medical Orders for Scope of Treatment (MOST). He discussed the states that have endorsed POLST programs. Colorado is currently developing a MOST form (Attachment H).
Dr. Koets showed a video related to the POLST paradigm in Oregon.
Dr. Koets described the differences between living wills and the MOST form. Some of the differences include that the living will defines negative preferences, where as the MOST form provides options. He stated that a living will must be retrieved, while the MOST form stays with the patient. He discussed the differences between CPR directives and the MOST form. Dr. Koets discussed the outcomes of the POLST paradigm, noting that the MOST form summarizes all components of advance care planning including information that CPR directives, living wills, and medical durable powers of attorney contain. He stated that the MOST form allows for and facilitates on-going discussions regarding end-of-life decisions and is updated on regular basis. In response to a question from Representative Tyler, Dr. Koets responded that the MOST form is not intended to replace other forms, including the CPR directive. Dr. Koets discussed the importance of education regarding storage of advance directive forms.
The committee discussed whether the MOST form was complimentary with other advance directive forms. Dr. Koets discussed House Bill 09-1232, which would have required the State Board of Health to promulgate rules regarding the development of a MOST form. He described the issues involved with creating a MOST form, including: portability across health care settings; acceptable formats of a form; expanding signature options to advance practice nurses and physician assistants; and immunity for complying with the form. He stated that the introduction of the legislation opened up discussions with the Department of Public Health and Environment and the Department of Regulatory Agencies. Dr. Koets noted that some pilots are underway to evaluate the MOST form. He referenced guidelines for implementing POLST legislation based on other states' experiences implementing POLST forms (Attachment I). An additional handout regarding the MOST form was provided to the committee (Attachment J). Dr. Koets responded to questions from Representative Riesberg regarding physician acceptance of the MOST form. The committee recessed.