The Health Care Decisions Law, among other things, provides for an individuals use of a request regarding resuscitative measures, which is a written document, signed by an individual with capacity or a legally recognized health care decisionmaker for the individual, and the individuals physician, that directs a health care provider regarding resuscitative measures for the individual. The law excludes a health care provider who honors a request regarding resuscitative measures from criminal prosecution, civil liability, discipline for unprofessional conduct, administrative sanction, or any other sanction, as a result of his or her reliance on the request, if specific conditions are met. The law provides, if the orders in an individuals request regarding resuscitative measures directly conflict with his or her individual health care instruction, as defined, that to the extent of the conflict, the most recent order or instruction is effective.

This bill would provide that that, to the extent of that conflict, the most recent of either the instruction by the individual, or the order of order signed by the individual or instruction made by the individual is effective. The bill would deem a request regarding resuscitative measures executed signed by specified persons as being an order of on behalf of the individual to be signed by the individual. The bill would also make technical conforming changes.

The Health Care Decisions Law, among other things, provides for an individuals use of a request regarding resuscitative measures, which is a written document, signed by an individual with capacity or a legally recognized health care decisionmaker for the individual, and the individuals physician, that directs a health care provider regarding resuscitative measures for the individual. The law excludes a health care provider who honors a request regarding resuscitative measures from criminal prosecution, civil liability, discipline for unprofessional conduct, administrative sanction, or any other sanction, as a result of his or her reliance on the request, if specific conditions are met. The law provides, if the orders in an individuals request regarding resuscitative measures directly conflict with his or her individual health care instruction, as defined, that to the extent of the conflict, the most recent order or instruction is effective.

This bill would provide that to the extent of that conflict, the most recent of either the instruction by the individual, or the orders in a order of the individual is effective. The bill would deem a request regarding resuscitative measures executed by the individual or other specified persons, is effective. specified persons as being an order of the individual. The bill would also make technical conforming changes.

The Health Care Decisions Law, among other things, provides for an individuals use of a request regarding resuscitative measures, which is a written document, signed by an individual with capacity or a legally recognized health care decisionmaker for the individual, and the individuals physician, that directs a health care provider regarding resuscitative measures for the individual. The law excludes a health care provider who honors a request regarding resuscitative measures from criminal prosecution, civil liability, discipline for unprofessional conduct, administrative sanction, or any other sanction, as a result of his or her reliance on the request, if specific conditions are met. The law requires, provides, if the orders in an individuals request regarding resuscitative measures directly conflict with his or her individual health care instruction, as defined, that to the extent of the conflict, the most recent order or instruction to be is effective.

This bill would modify the priority of documents to resolve a conflict to instead provide that the most recent order of the individual or instruction by the individual, as specified, would be effective. provide that to the extent of that conflict, the most recent of either the instruction by the individual, or the orders in a request regarding resuscitative measures executed by the individual or other specified persons, is effective.

The Health Care Decisions Law, among other things, provides for an individuals use of a request regarding resuscitative measures, which is a written document, signed by an individual with capacity or a legally recognized health care decisionmaker for the individual, and the individuals physician, that directs a health care provider regarding resuscitative measures for the individual. The law excludes a health care provider who honors a request regarding resuscitative measures from criminal prosecution, civil liability, discipline for unprofessional conduct, administrative sanction, or any other sanction, as a result of his or her reliance on the request, if specific conditions are met. The law requires, if the orders in an individuals request regarding resuscitative measures directly conflict with his or her individual health care instruction, as defined, to the extent of the conflict, the most recent order or instruction to be effective.

This bill would modify the priority of documents to resolve a conflict to instead provide that the most recent order of the individual or instruction signed by the individual, as specified, would be effective.

The Health Care Decisions Law, among other things, provides for an individuals use of a request regarding resuscitative measures, which is a written document, signed by an individual with capacity or a legally recognized health care decisionmaker for the individual, and the individuals physician, that directs a health care provider regarding resuscitative measures for the individual. The law excludes a health care provider who honors a request regarding resuscitative measures from criminal prosecution, civil liability, discipline for unprofessional conduct, administrative sanction, or any other sanction, as a result of his or her reliance on the request, if specific conditions are met. The law requires, if the orders in an individuals request regarding resuscitative measures directly conflict with his or her individual health care instruction, as defined, to the extent of the conflict, the most recent order or instruction to be effective.

This bill would modify the priority of documents to resolve a conflict to instead provide that the most recent order of the individual or instruction signed by the individual, as specified, would be effective.

ASSEMBLY THIRD READING

ATR Bill Id:AB 937

Author:(Eggman)

As Amended Ver:May 3, 2017

Majority vote

SUMMARY: Requires the most recent health care instruction of an individual or the individual's designee to be prioritized over other orders regarding resuscitative measures, and provides clarifying language to prioritize heath care decision-making made by an individual's surrogate. Specifically, this bill:

1. Clarifies that, except when an individual has designated a surrogate for a particular health care decision, unless the power of attorney for health care provides otherwise, an agent designated in the power of attorney who is known to the health care provider to be reasonably able and willing to make health care decisions has priority over any other person in making health care decisions for the individual.
2. Requires that if an individual's request regarding resuscitative measures directly conflicts with his or her known individual health care instruction, whether written or oral, then to the extent of the conflict, the most recent order or instruction of the individual is effective. Provides that a request regarding resuscitative measures executed by the individual or the individual's surrogate, agent or conservator, all as provided, is deemed to be a request of the individual.
3. Provides that this bill does not create or expand a duty to locate an individual's health care instruction.

FISCAL EFFECT: None

COMMENTS: This bill seeks to ensure that an individual's wishes regarding resuscitation and other health care decisions, which may change over time, are honored by revising which instruction has priority when there are multiple, conflicting health care instructions and the patient is unable to speak for himself or herself.

Background on AHCDs and POLST Forms. An advance health care directive (AHCD), also called a "living will," is a document providing guidance or instructions for making health care decisions that contains either an individual health care instruction, or a power of attorney for health care. Existing law establishes the process and provides a statutory form for an individual to give instructions for health care decisions and to designate an agent to make decisions on his or her behalf. (Probate Code Section 4670 et seq. All further statutory code references are to the Probate Code, unless otherwise stated.) The AHCD may assist in guiding inpatient treatment decisions, and is recommended for all adults, regardless of their health status. The advantage of an AHCD is that it can articulate in detail the wishes of the individual for numerous circumstances related to health care treatment, and allows the individual to designate an appointed agent to make health care decisions on that person's behalf, should he or she ever become incapacitated. An AHCD is generally only applicable when the individual no longer has capacity to make his or her own health care decisions.

One of the disadvantages of an AHCD is that it is not always readily available to health care providers who need to know about the AHCD in order to effectuate the wishes of the patient. Additionally, AHCDs are not consistently updated to reflect the current wishes of the individual, although, failing to update the document does not necessarily mean that the AHCD is out of date if the individual's wishes have not changed since the document was originally executed.

In order to address some of the disadvantages of the AHCD, the Legislature sought to improve the communication between individuals and health care providers through use of Physician Order for Life Sustaining Treatment (POLST) forms. The POLST form, which is supposed to complement an AHCD, is different in that it is filled out by an individual with his or her physician, often near the end of life, and is generally used to guide actions by emergency medical personnel or other health care providers near the end of the patient's life. POLST forms can indicate patient preferences for end-of-life care, including resuscitative measures and other life-sustaining treatment. POLST forms are bright pink – thus easy to locate in a medical file or in an individual's home – and since they are completed by heath care professionals, they are generally available when health care decisions need to be made. POLST forms have been an effective tool in guiding health care providers, particularly emergency medical personnel, in rendering services, but have also presented new issues relating to health care treatment and instruction.

Current Issues with POLST Forms, Including Possible Circumvention of Patient Wishes. POLST forms were not intended to replace AHCDs, but instead were intended to communicate the wishes of the individual to the health care provider in a more efficient manner. However, POLST forms have the ability to override an AHCD, or other health care instruction made by an individual or the individual's designated representative, and therefore, have the potential to override the individual's wishes.

Under existing law, if a conflict exists between an individual health care instruction and a POLST form, the form executed last in time, which typically is the POLST, controls the medical treatment provided. (Section 4781.4.) A physician may conduct an evaluation in consultation with the individual or the individual's "legally recognized health care decisionmaker" (LRHCDM), and issue a POLST consistent with the most current information available about the individual's health status and goals of care. (Section 4781.2 (c).) In instances where the individual is incapacitated, the LRHCDM can assert to a physician, nurse practitioner, or physician assistant that the health care wishes of the individual have changed since the individual's last known expression of health care instruction. (Section 4781.2 (d).) Typically, this does not present an issue because the LRHCDM is commonly a designee of the individual and all LRHCDMs are obligated to follow the last known expression of the individual. (Section 4781.5.) The issue presents itself, when the LRHCDM is a person that has not been designated by the individual or appointed by a court, and may not have knowledge of, or elect to follow, a previous health care instruction by the individual. All LRHCDMs are obligated under statute to follow the last health care instruction of the individual to the extent known by the LRHCDM. (Section 4781.5.) However, if the LRHCDM does not know the individual well enough, the POLST completed by the LRHCDM may well be at odds with the individual's wishes. This scenario, coupled with the last in time preference, allows an individual's health care instruction to be superseded by a more recent POLST form that could be completed by a quasi-stranger, not chosen by the individual, and not adhering to the individual's wishes.

This Bill Seeks to Protect the Patient's Wishes by Revising What Health Care Directive Prevails When There are Multiple, Conflicting Directives. In an effort to ensure that the patient's wishes are honored, this bill deletes the provision that the most recent health care order or instruction, regardless of who executed it, take precedence as to the resuscitative measures used on an individual. Instead this bill prioritizes the most recent known order or instruction from the individual or his or her surrogate, agent, or conservator. This is consistent with statutory authority already granted to these designated persons. (See Sections 4711, 4671, 2354, and 2355.) It also reinforces the original intent of the Legislature to favor the express wishes of the individual, whether through the individual himself or herself or through a person specifically designated by that individual or appointed by the court, regarding his or her end-of-life wishes. The priority only applies to known directives.

By its own terms, this bill does not create or expand a health care provider's duty to seek out an individual's health care instruction to ensure that a conflict does not exist. This makes practical sense, ensuring that health care providers are able to provide immediate resuscitative measures to an individual, should the available instruction or order direct the health care provider to do so, without any additional duty to seek out conflicting instructions.

This Bill Does Not Address Existing Issues Presented by Outdated AHCDs. By favoring the most recent expression of an individual's health care directive, there is a potential under this bill that the directive is not reflective of the individual's current wishes. For example, in instances where an individual has a decade's old AHCD and has forgotten to update the AHCD, but has changed his or her position on resuscitative measures, the AHCD would take priority over newer orders not executed by the individual or his or her official designee (the agent, surrogate or conservator). However, it is reflective of what the individual's wishes had been, as opposed to allowing someone to make a decision today that may not be at all reflective of what the individual wants.

Analysis Prepared by: Alison Merrilees / JUD. / (916) 319-2334 FN: 0000304

Date of Hearing: May 9, 2017

ASSEMBLY COMMITTEE ON HEALTH

Jim Wood, Chair

ABPCA Bill Id:AB 937

Author:(Eggman) – As Amended Ver:May 3, 2017

SUBJECT: Health care decisions: order of priority.

SUMMARY: Gives priority, to the extent of a conflict, to the most recent order signed by an individual or instructions made by the individual, regarding resuscitative measures. Specifically, this bill:

1. Provides that if the orders in an individual’s request regarding resuscitative measures directly conflict with the individual’s known health care instruction, as defined, then, to the extent of the conflict, the most recent order signed by the individual or instruction made by the individual is effective.
2. Provides that a request regarding resuscitative measures signed by any of the following on behalf of an individual, which meets certain requirements, will be deemed to be signed by the individual:
   1. The individual;
   2. The surrogate;
   3. The agent; or;
   4. The conservator of the individual.
3. Exempts from this bill existing provisions regarding prioritization of health care surrogates, as specified.
4. Specifies that this bill does not create or expand any existing duty to locate an individual’s health care instruction.

EXISTING LAW:

1. Allows an adult having capacity to execute a power of attorney for health care authorizing an agent to make health care decisions and including individual health care instructions.
2. Provides that unless the power of attorney for health care provides otherwise, the agent designated in the power of attorney who is known to the health care provider to be reasonable available and willing to make health care decisions, has priority over any other person making health care decisions for the principal. Requires an agent to make a health care decision in accordance with the principal's individual health care instruction, and other wishes to the extent known, or otherwise make a decision in accordance with the agent's determination of the principal's best interest.
3. Provides that if the orders in an individual's request regarding resuscitative measure directly conflict with his or her individual health care instruction, then to the extent of the conflict, the most recent order or instruction is effective. Defines an "individual health care instruction" or "individual instruction" as a patient's written or oral direction concerning a health care decision for the patient.
4. Provides that if the individual has designated an agent under a power of attorney for healthcare, a surrogate designated by an individual to make health care decisions during a specific treatment or hospital stay has priority over the agent for the duration of the treatment or hospital stay.
5. Defines a request regarding resuscitative measures as a written document signed by an individual with capacity, or a legally recognized health care decision maker, and the individual's physician that directs a health provider regarding resuscitative measures. Specifies that a request regarding resuscitative measures is not an advance health care directive (AHCD).
   
6. Defines an AHCD or "advance directive" as either an individual health care instruction or a power of attorney for health care, and defines individual health care instruction as a patient's written or oral direction concerning a health care decision for the patient.
7. Specifies that a request regarding resuscitative measures includes one, or both of the following:
   1. A do not resuscitate form developed by the Emergency Medical Services Authority (EMSA), or one substantially similar; and,
   2. A Physicians Orders for Life Saving Treatment (POLST) form approved by EMSA.
8. Defines a POLST form as a request regarding resuscitative and life-sustaining measures that directs a health care provider regarding resuscitative and life-sustaining measures.
9. Allows a legally recognized health care decision maker to execute a POLST form only if the individual lacks capacity, or the individual has designated that the decision maker's authority is in effect.
10. Requires the POLST form and medical intervention procedures offered by the form to be explained by a health care provider; the form to be completed by a health care provider based on patient preferences and medical indications; and, signed by a physician and the patient or his/her legally recognized health care decision maker. Encourages health care providers to inform patients about the difference between an advance health care directive and a POLST.
11. Allows an individual with the capacity to revoke a POLST form at any time.
12. Requires a health care provider to treat an individual in accordance with a POLST, unless the POLST requires medically ineffective care or care contrary to generally accepted standards. Allows a physician to conduct an evaluation of the individual and, if possible, in consultation with the individual or his/her legally recognized health care decision maker, issue a new POLST consistent with the most current information available about the individual's health status and goals of care.
13. Specifies that a health care provider who honors a request regarding resuscitative measures is not subject to criminal prosecution, civil liability, discipline for unprofessional conduct, or administrative sanction, if the health care provider believes in good faith that the action or decision is consistent with these provisions and has no knowledge that the action or decision would be inconsistent with a health care decision the individual signing the request would have made on his/her own behalf under like circumstances.
14. Requires the Secretary of State (SoS) to establish a registry system for AHCD and make the information in an AHCD available upon request to health care providers, the public guardian, or the legal representative of the registrant.
15. Provides the format for an AHCD form, which outlines the options for a person to designate medical decision making responsibility to another, specify his or her wishes regarding instructions for health care in the event he or she is unable to communicate; including whether or not the person wants to prolong his or her life as long as possible, or withhold, or withdraw treatment if he or she has an incurable or irreversible condition. Indicates the exact form is not required to be used when a person is creating an AHCD.

FISCAL EFFECT: None

COMMENTS:

1. PURPOSE OF THIS BILL. According to the author, California's AHCD law was created to grant people the right to record their preferred instruction about their own end-of-life care. The author states that currently, if there is conflict between a person's AHCD, which they have filed themselves, and a POLST form which may have been filed by either the person whose care it directs or a third party, the most recent order takes precedence. The author states that this allows a later POLST filed by a third party to supersede an AHCD. The author notes that a directive by a mentally capable person prevents ambiguity and confusion about their intent and wishes for end-of-life-care. The author concludes that this bill will solve this conflict by respecting the most recent order expressed by the person whose care is the subject of the order, and should that directive extend decision-making authority to another person, that directive, too, should be respected.
2. BACKGROUND. According to the National POLST Paradigm, the program is an approach to end-of-life planning emphasizing: advance care planning conversations between patients, health care professionals and loved ones; shared decision-making between a patient and his/her health care professional about the care the patient would like to receive at the end of his/her life; and, ensuring patient wishes are honored. The POLST form is to be completed based on the patient’s expressed treatment preferences and medical condition. If the patient lacks decision-making capacity and the POLST form is completed with the patient’s legally recognized healthcare decision-maker, it must be consistent with the known desires of and in the best interest of the patient.

A legally recognized decision-maker may include a court-appointed conservator or guardian, agent designated in an AHCD, orally designated surrogate, spouse, registered domestic partner, parent of a minor, closest available relative, or person whom the patient’s physician believes best knows what is in the patient’s best interest and will make decisions in accordance with the patient’s expressed wishes and values to the extent known.

• 1. POLST vs. AHCD. The National Paradigm does not recommend a POLST for everyone. Only patients with serious illness or frailty, for whom a health care professional would not be surprised if they died within one year, should have a POLST form. For these patients, their current health status indicates the need for standing medical orders. For healthy patients, an AHCD is deemed an appropriate tool for making future end of life care wishes known.
     

Both documents are helpful for communicating patient wishes. An AHCD is a form in which an individual appoints a person to make healthcare decisions for the individual if and when the individual loses that capacity. An AHCD is from the patient, not a medical order. POLST is a set of medical orders, signed by a health care provider that addresses a limited number of critical medical decisions.

• 1. POLST use in California. POLST use in California is fairly wide spread. According to a 2012 article in the Journal of General Internal Medicine, “Implementation of Physician Orders for Life Sustaining Treatment in Nursing Homes in California: Evaluation of a Novel Statewide Dissemination Mechanism,” a survey of 546 nursing homes found that 82% of responding skilled nursing facilities in California have participated in training sessions about POLST and 59% reported having a formal policy on POLST. Few nursing homes reported difficulty following POLST orders, but 38% noted difficulty involving physicians in POLST completion. A 2013 article in the Journal of American Geriatrics Society, “Implementing Physician Orders for Life-Sustaining Treatment in California Hospitals: Factors Associated with Adoption,” indicates of 349 hospitals surveyed, 65% of hospitals had a policy on POLST; 87% had available POLST forms; 84% had educated staff; and, 94% reported handling POLST properly in the emergency department on admission. The California HealthCare Foundation (CHCF) estimates that approximately 165,000 individuals per year utilize a POLST.
  2. AHCD use in California. The SoS maintains the AHCD registry, which allows a person who has executed an AHCD to register the directive with the SoS. An AHCD can be made a part of the SoS's registry by attaching a copy of the AHCD to the Registration of Written Advance Health Care Directive filed with the SoS and by remitting a filing fee of $10. As of May 3, 2017, there are 6,153 registered AHCDs on file; 4,256 of those filings contain a copy of the AHCD. In the past three years, the SoS has received an average of 504 requests for information or to verify if an individual has filed an AHCD.

1. SUPPORT. The Conference of California Bar Associations (CCBA) is the sponsor of this bill and states that it would specify, if there is an inconsistency in the expression of preference for life-sustaining treatment in competing documents, such as an AHCD or POLST, that the most recent document executed by the individual themselves should control, as opposed to a later document signed by a third party. CCBA notes that an AHCD can be executed by the person only, not a third party, and that in contrast, a POLST is a form executed by the individual or a legally recognized health care decision maker. CCBA contends that because of a lack of clarity in statute, there have been a growing number of instances where busy medical staff has been quick to recognize whichever family member is on hand, regardless of potential conflict, to sign a POLST and thereafter make decisions on life-sustaining treatment that would supersede an AHCD.
   
   The California Long-Term Care Ombudsman Association supports this bill and states that it is important to recognize a person's right to self-determination in making decisions about their end of life experience.
   
   California Advocates for Nursing Home Reform (CANHR) supports this bill and states that it would re-establish a patient's control over his or her health care decisions. CANHR contends that since the adoption of the POLST law in 2008 it has been flawed, allowing an undefined legally authorized representative to sign a POLST on behalf of an incapacitated patient.
2. OPPOSITION. The Coalition for Compassionate Care of California (CCCC) opposes this bill stating that, in the original POLST legislation it was made clear that legally recognized health care decision makers must meet exactly the same standards as surrogates and agents. CCCC notes that current law restricts the ability of a legally recognized health care decision maker to complete a POLST form unless it's done in a manner in accordance with the patient's previously expressed wishes. CCCC concludes that this bill will make it difficult to write orders that respect a patient's wishes in light of changes in medical condition, and likely result in more patients' treatment wishes not being honored.
3. CONCERNS. The California Medical Association (CMA) submitted a letter of concern regarding this bill, noting that current law already requires that legally recognized decision-makers and physician only make decisions in accordance with the patient's individual health care instruction, if any, and other wishes to the extent known, otherwise the law obligates them to make decision in accordance with the patient's best interests. CMA notes that while it appreciates recent amendments to the bill to ensure that at least officially designated health care decision-maker requests and POLSTs made more recently remain effective, the bill still limits spouses and other family members from serving in this role if the patient, as often occurs, failed to officially designate them prior to their loss of capacity.
4. PREVIOUS LEGISLATION.
   1. SB 19 (Wolk), Chapter 504, Statutes of 2015, established a POLST eRegistry Pilot operated by the EMSA for the purpose of collecting a POLST form received from a physician, or his or her designee, and disseminating the information in the form to authorized persons.
   2. SB 1357 (Wolk) of 2014, would have established a POLST registry at California Health and Human Services. SB 1357 was held on the Senate Appropriations suspense file.
   3. AB 2452 (Pan) of 2014, would have required the SoS to transfer the contents of its advance health care directive’s registry to the Department of Public Health (DPH) on January 1, 2016, and would have required DPH to maintain a health care decision registry, to be referred to as the California Health Care Decisions Online Registry. AB 2452 was never scheduled for a hearing in the Senate Judiciary Committee.
   4. AB 3000 (Wolk), Chapter 266, Statutes of 2008, created POLST in California, which is a standardized form to reflect a broader vision of resuscitative or life sustaining requests and to encourage the use of POLST orders to better handle resuscitative or life sustaining treatment consistent with a patient’s wishes.
      
5. DOUBLE REFERRAL. This bill has been double referred. It passed the Assembly Judiciary Committee with a vote of 11-0 on May 2, 2017.
   
6. POLICY COMMENT. Over 1 million POLST forms have been downloaded since 2009, when the POLST law went into effect in California. There is no way to know how many of those forms have been completed, how many of the people who have completed a POLST are still living, or how many POLST forms were signed by a surrogate. Therefore the extent of the number of conflicting AHCDs and POLST forms is currently unknown.
   

REGISTERED SUPPORT / OPPOSITION:

Support

Conference of California Bar Associations (sponsor)

California Advocates for Nursing Home Reform
California Long-Term Care Ombudsman Association

Opposition

Coalition for Compassionate Care of California

Analysis Prepared by: Lara Flynn / HEALTH / (916) 319-2097

Date of Hearing: May 2, 2017

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 937

Author:(Eggman) – As Amended Ver:April 25, 2017

As Proposed to be Amended

SUBJECT: HEALTH CARE DIRECTIVES AND POLSTS: conflicting orders

KEY ISSUE: Should a person’s end-of-life resuscitative wishes have priority over a more recent end-of-life decision executed by a third party WHO IS NOT the person'S DESIGNEE?

SYNOPSIS

The best person to make health care decisions for an adult is that person himself or herself. This includes, most especially, decisions regarding resuscitative measures and other life-sustaining treatments. The Legislature has codified these principals through statute, creating methods in which an individual may express his or her wishes, such as the Advance Health Care Directive (AHCD), a designated surrogate, and the Physician Order for Life Sustaining Treatment (POLST) form. An AHCD, also called a “living will,” is a document providing guidance or instructions for making health care decisions when the person executing the document is no longer able to do so. It can be either an individual health care instruction, or a power of attorney for health care. The AHCD may assist in guiding inpatient treatment decisions, and is recommended for all adults, regardless of their health status. The POLST form, which is described as a complement to an AHCD, is different in that it is filled out by an individual or a third-party decisionmaker with the individual’s health care professional, near the end of life, and is generally used to guide actions by emergency medical or hospital personnel. POLST forms indicate end-of-life care, including resuscitative measures and other life-sustaining treatments. Occasionally, the different directives may directly conflict, for example when one requests all available treatment and the other contains a "do not resuscitate" directive. In the case of a conflict, current law favors the order that was last issued. If an individual has, himself or herself, signed the more recent directive, there is no controversy in following the last in time order. However, the POLST form allows certain third parties who are not designated by the individual to make health care instructions on behalf of that individual when he or she lacks capacity to make those decisions. This can result in a more recent POLST form completed by someone other than the individual or his or her designee, superseding the individual’s stated wishes in an AHCD.

This bill seeks to address conflicts that arise when third-party decisionmakers, who have not been specifically designated by the individual or the court, effectuate a new POLST form that is in conflict with an earlier health care instruction issued by the individual or his or her designee. This bill gives priority to instructions from the individual or his or her surrogate, agent, or conservator. Additionally, the bill eliminates a conflict in the statutes, which requires a hospital to recognize a surrogate as having the authority to make health care decisions over an agent of an individual, and another statute, which recognizes the agent as having priority above all other persons by clarifying that surrogates, who are appointed for a limited time, have priority.

This bill is sponsored by the Conference of California Bar Associations and supported by California Advocates for Nursing Home Reform and the California Long-Term Care Ombudsman Association, which contend that today any family member or friend on hand could end up signing a POLST form and making decisions on life-sustaining treatment that would supersede the conflicting wishes of the patient from a prior AHCD. Supporters believe that this violates basic constitutional principles and undermines the POLST's stated purpose of promoting patient self-determination. The California Medical Association, while no longer opposed to the bill, still has concerns that the bill unnecessarily limits spouses and other family members from being legally recognized decisionmakers on behalf of incapacitated patients, even if not so designated by the patient, and from being able to override a potentially outdated AHCD. The California Right to Life Committee, Inc. is opposed to the bill in its latest form, and the Coalition for Compassionate Care of California was opposed to the bill's prior version (and may still oppose the current version), though for differing reasons. Assuming this bill passes out of this Committee, it will be referred to the Assembly Health Committee.

SUMMARY: Requires the most recent health care instruction of an individual or the individual’s designee to be prioritized over other orders regarding resuscitative measures, and provides clarifying language to prioritize heath care decisionmaking made by an individual’s surrogate. Specifically, this bill:

1. Clarifies that, except when an individual has designated a surrogate for a particular health care decision, unless the power of attorney for health care provides otherwise, an agent designated in the power of attorney who is known to the health care provider to be reasonably able and willing to make health care decisions has priority over any other person in making health care decisions for the individual.
2. Requires that if an individual’s request regarding resuscitative measures directly conflicts with his or her known individual health care instruction, whether written or oral, then to the extent of the conflict, the most recent order or instruction of the individual is effective. Provides that a request regarding resuscitative measures executed by the individual or the individual's surrogate, agent or conservator, all as provided, is deemed to be a request of the individual.
3. Provides that this bill does not create or expand a duty to locate an individual’s health care instruction.

EXISTING LAW:

1. Provides that an advance health care directive (AHCD) is either an individual health care instruction or a power of attorney for health care. Defines “individual health care instruction” as an individual’s authorized written or oral direction concerning a health care decision for the individual. Defines “health care decision” as a decision made by an individual or an individual’s agent, conservator, or surrogate, regarding that individual’s health care, including selection and discharge of health care providers and institutions, approval or disapproval of diagnostic tests, surgical procedures, and programs of medication, and directions to provide, withhold, or withdraw artificial nutrition and hydration and all other forms of health care, including cardiopulmonary resuscitation. Provides that an adult having capacity may execute a power of attorney for health care, which may authorize the agent to make health care decisions and may also include health care instructions. (Probate Code Sections 4605, 4623, and 4617. All further statutory code references are to the Probate Code, unless otherwise stated.)
2. Defines “agent” as an individual designated in a power of attorney for health care to make a health care decision for the principal (the person executing the power of attorney), regardless of whether the person is known as an agent or attorney-of-fact, or by some other term, and includes a successor or alternate agent. Requires the agent designated in the power of attorney who is known to the health care provider and is reasonably available and willing to make health care decisions to be given priority over any other person in making health care decisions for the principal. Requires an agent to make a health care decision in accordance with the principal’s individual health care instruction, and other wishes to the extent known to the agent, or otherwise make a decision in accordance with the agent’s determination of the principal’s best interest, which must consider the principal's personal values to the extent known by the agent. (Sections 4607, 4684, and 4685.)
3. Provides that an individual may designate an adult as a surrogate to make health care decisions by personally informing the supervising health care provider, and that designation shall be promptly recorded in the individual’s health care record. Defines “surrogate” as an adult, other than an individual’s agent or conservator, authorized to make a health care decision for the individual. Requires that when an individual has designated a surrogate for health care decisions, by personally informing the supervising health care provider, the surrogate has priority over the agent for a designated period, but the designation of the surrogate does not revoke the designation of an agent unless the individual communicates the intention to revoke the agent's designation. Requires a surrogate designation to be effective only during the course of treatment or illness or during the stay in a health care institution when the surrogate designation is made, or for 60 days, whichever period is shorter, unless the individual specifies a shorter period of time. Requires a surrogate to make a health care decision in accordance with the principal’s individual health care instruction, and other wishes to the extent known to the agent, or otherwise make a decision in accordance with the surrogate's determination of the principal’s best interest, which must consider the principal’s personal values to the extent known by the surrogate. (Sections 4643, 4711, and 4714.)
4. Defines “request regarding resuscitative measures” to mean a written document, signed by both an individual with capacity, or a legally recognized health care decisionmaker (LRHCDM), and the individual’s physician, that directs a health care provider regarding resuscitative measures. Provides that a request regarding resuscitative measures is not an AHCD. Provides that a “request regarding resuscitative measures” includes one, or both of, the following:
   1. A pre-hospital “do not resuscitate” form as developed by the Emergency Medical Services Authority (EMSA) or other substantially similar form.
   2. A Physician Orders for Life Sustaining Treatment (POLST) form, as approved by the EMSA, which directs a health care provider regarding the resuscitative and life-sustaining measures. (Section 4780 et seq.)
5. Requires a health care provider to treat an individual in accordance with a POLST form. (Section 4781 (a).)
6. Permits a physician to conduct an evaluation of an individual and issue a new POLST form consistent with the most current information available about the individual’s health status and goals of care. Provides that a LRHCDM of an individual without capacity shall consult with the treating physician prior to making a request to modify that individual’s POLST form. Provides that an individual with capacity may, at any time, request alternative treatment to the treatment that was ordered on the POLST form. (Section 4781.2.)
7. Requires that if the orders (POLST or pre-hospital resuscitation orders) in an individual’s request regarding resuscitative measures directly conflict with his or her individual health care instruction, then, to the extent of the conflict, the most recent order or instruction is effective. (Section 4781.4.)
8. Requires a hospital to make reasonable efforts to accommodate religious and culture practices and concerns, if the patient’s LRHCDM, family, or next of kin voices any special religious or cultural practices and concerns. (Health and Safety Code Section 1254.4 (c)(2).)
9. Requires that a request for a prescription for an aid-in-dying drug be made solely and directly by the individual diagnosed with the terminal disease, and shall not be made on behalf of the individual, including through a power of attorney, an AHCD, a conservator, a health care agent, a surrogate, or any other legally recognized health care decisionmaker. (Health and Safety Code Section 443.2 (c).)

FISCAL EFFECT: As currently in print this bill is keyed non-fiscal.

COMMENTS: This bill seeks to ensure that an individual's wishes regarding resuscitation and other health care decisions, which may change over time, are honored by revising which instruction has priority when there are multiple, conflicting health care instructions and the patient is unable to speak for himself or herself.

Background on AHCDs and POLST Forms. An AHCD, also called a “living will,” is a document providing guidance or instructions for making health care decisions that contains either an individual health care instruction, or a power of attorney for health care. Existing law establishes the process and provides a statutory form for an individual to give instructions for health care decisions and to designate an agent to make decisions on his or her behalf. (Section 4670 et seq.) The AHCD may assist in guiding inpatient treatment decisions, and is recommended for all adults, regardless of their health status. The advantage of an AHCD is that it can articulate in detail the wishes of the individual for numerous circumstances related to health care treatment, and allows the individual to designate an appointed agent to make health care decisions on that person's behalf, should he or she ever become incapacitated. An AHCD is generally only applicable when the individual no longer has capacity to make his or her own health care decisions.

One of the disadvantages of an AHCD is that it is not always readily available to health care providers who need to know about the AHCD in order to effectuate the wishes of the patient. Additionally, AHCDs are not consistently updated to reflect the current wishes of the individual, although, failing to update the document does not necessarily mean that the AHCD is out of date if the individual's wishes have not changed since the document was originally executed.

In order to address some of the disadvantages of the AHCD, the Legislature sought to improve the communication between individuals and health care providers through use of POLST forms. The POLST form, which is supposed to complement an AHCD, is different in that it is filled out by an individual with his or her physician, often near the end of life, and is generally used to guide actions by emergency medical personnel or other health care providers near the end of the patient’s life. POLST forms can indicate patient preferences for end-of-life care, including resuscitative measures and other life-sustaining treatment. POLST forms are bright pink -- thus easy to locate in a medical file or in an individual's home -- and since they are completed by heath care professionals, they are generally available when health care decisions need to be made. POLST forms have been an effective tool in guiding health care providers, particularly emergency medical personnel, in rendering services, but have also presented new issues relating to health care treatment and instruction.

Current Issues with POLST Forms, Including Possible Circumvention of Patient Wishes. POLST forms were not intended to replace AHCDs, but instead were intended to communicate the wishes of the individual to the health care provider in a more efficient manner. However, POLST forms have the ability to override an AHCD, or other health care instruction made by an individual or the individual’s designated representative, and therefore, have the potential to override the individual's wishes.

Under existing law, if a conflict exists between an individual health care instruction and a POLST form, the form executed last in time, which typically is the POLST, controls the medical treatment provided. (Section 4781.4.) A physician may conduct an evaluation in consultation with the individual or the individual’s "legally recognized health care decisionmaker" (LRHCDM), and issue a POLST consistent with the most current information available about the individual’s health status and goals of care. (Section 4781.2 (c).) In instances where the individual is incapacitated, the LRHCDM can assert to a physician, nurse practitioner, or physician assistant that the health care wishes of the individual have changed since the individual’s last known expression of health care instruction. (Section 4781.2 (d).) Typically, this does not present an issue because the LRHCDM is commonly a designee of the individual and all LRHCDMs are obligated to follow the last known expression of the individual. (Section 4781.5.) The issue presents itself, when the LRHCDM is a person that has not been designated by the individual or appointed by a court, and may not have knowledge of, or elect to follow, a previous health care instruction by the individual.

Although not defined in statute, the POLST form itself allows for a LRHCDM to be a relative or a person appointed by the health care professional whom the professional determines to have the best interests of the individual in mind. A relative or other person assigned by a medical professional may not know the individual well enough to make a health care decision consistent with the interests and wishes of the individual or may even have questionable motives, but, under current law and the rules, that person has the ability to override the last expression of the individual, and may override the last instruction given by another LRHCDM who had been designated by the patient. All LRHCDMs are obligated under statute to follow the last health care instruction of the individual to the extent known by the LRHCDM. (Section 4781.5.) However, if the LRHCDM does not know the individual well enough, the POLST completed by the LRHCDM may well be at odds with the individual’s wishes. This scenario, coupled with the last in time preference, allows an individual’s health care instruction to be superseded by a more recent POLST form that could be completed by a quasi-stranger, not chosen by the individual, and not adhering to the individual’s wishes.

According to the author, ambiguity in “legally recognized decisionmaker” in the statute creates uncertainty, and fails to account for conflicts that may exist between the individual and a third-party decisionmaker, who can change resuscitative methods through a POLST form. The author states:

California’s Advance Health Care Directive Law was created to grant people the right to record their preferred instructions about their own end-of-life care. (Prob. Code 4623, 4670.) Under the law, if there is a conflict between a person’s Advanced Health Care Directive – which they have filed themselves – and a Physician’s Order for Life Sustaining Treatment (POLST) form, which may have been filed by either a person whose care it directs or a third party, the most recent order takes precedence. This means that busy medical staff are allowed to work with whichever family member is on hand, regardless of potential conflict, to make decisions about life-sustaining treatment. This allows a later POLST filed by a third party to supersede an Advance Health Care Directive. However, a person’s unambiguous directives and preferences, if expressed when mentally capable, should be respected, particularly when they have been recorded in the form of an Advance Health Care Directive. A directive by a mentally capable person prevents ambiguity and confusion about their intent and wishes for end-of-life care. AB 937 will solve this conflict by respecting the most recent order expressed by the person whose care is the subject of the order. Should that directive extend decision-making authority to another person, that directive, too, should be respected.

This Bill Seeks to Protect the Patient's Wishes by Revising What Health Care Directive Prevails When There are Multiple, Conflicting Directives. In an effort to ensure that the patient's wishes are honored, this bill deletes the provision that the most recent health care order or instruction, regardless of who executed it, take precedence as to the resuscitative measures used on an individual. Instead this bill prioritizes the most recent known order or instruction from the individual or his or her surrogate, agent, or conservator. This is consistent with statutory authority already granted to these designated persons. (See Sections 4711, 4671, 2354, and 2355.) It also reinforces the original intent of the Legislature to favor the express wishes of the individual, whether through the individual himself or herself or through a person specifically designated by that individual or appointed by the court, regarding his or her end-of-life wishes. The priority only applies to known directives.

By its own terms, this bill does not create or expand a health care provider's duty to seek out an individual’s health care instruction to ensure that a conflict does not exist. This makes practical sense, ensuring that health care providers are able to provide immediate resuscitative measures to an individual, should the available instruction or order direct the health care provider to do so, without any additional duty to seek out conflicting instructions.

In support of the bill, the sponsor writes that:

[T]here have been a growing number of instances where busy medical staff has been quick to recognize whichever family member is on hand, regardless of potential conflict, to sign a POLST and thereafter make decisions on life-sustaining treatment that would supersede an advance health care directive executed by an individual. Under existing law, even a Conservator of the Person could not countermand an advance health care directive absent court order. It is an anomaly that the law would provide such a cavalier treatment of existing planning documents of the individual under the POLST process.

AB 937 would address this problem by making clear in statute that the most recent order of the individual, or instruction by the individual, is controlling insofar as a request regarding resuscitative measures. In these matters, the unambiguous directives and preferences of an individual regarding treatment should be accorded deference.

Who Can Make Health Care Decisions on Behalf of an Incapacitated Adult? When an adult is incapacitated a third party may make health care decisions on behalf of that individual. The third party may include a court-appointed conservator or a person specifically designated by the individual through an AHCD, a written or oral designation (including a surrogate designation), or through a power of attorney for health care. These designees are commonly referred to as LRHCDM, though that term is not defined in statute. (See Health and Safety Code Section 443.2, which recognizes a LRHCDM to be a surrogate, agent, conservator or guardian, or other LRHCDM.)

A surrogate is an adult, other than an individual’s agent or conservator, authorized to make health care decisions for the individual. (Section 4643.) An individual designates a surrogate to make health care decisions by personally informing a supervising health care provider of the surrogate. (Section 4711 (a).) A surrogate designation is only effective for the course of treatment or illness or during the stay at a health care institution when the individual designated the surrogate, or for a period of 60 days, whichever is shorter. (Section 4711 (b).) Though limited in time, during that time a surrogate has authority over all others decisionmakers designated by the individual, including an agent under a power of attorney for health care. (Section 4711 (d).) A surrogate is limited in health care decisionmaking in that any health care decision must be in accordance with the individual’s health care instruction to the extent known to the surrogate. (Section 4714.) In the absence of that health care instruction, the surrogate is required to make health care decisions in accordance with the best interest of the individual, which must include consideration of the individual’s personal values to the extent known. (Section 4714.)

An agent is a person designated in a power of attorney for health care to make a health care decision for the principal (the individual who executes the AHCD), regardless of whether the person is known as an agent, attorney in fact, or by some other term. (Section 4607.) The agent effectively makes health care decisions with the same authority as the individual when the individual becomes incapacitated, unless otherwise specified. (Section 4678.) Identical to the limitations of health care decisionmaking of a surrogate, an agent must make health care decisions in accordance with the individual’s health care instructions and other wishes to the extent known by the agent. Otherwise, the agent is to make health care decisions in accordance with the individual’s best interests in mind, which must include consideration of the individual’s personal values to the extent known by the agent. (Section 4684.) An agent’s authority in health care decisionmaking has priority over any other person making health care decisions for the patient. (Section 4685.) This bill eliminates the conflict by clarifying that the surrogate has priority over an agent, as least for the surrogate's limited period of time.

A surrogate and an agent act on behalf of an individual based on the individual’s action of appointing them. As a result, there is little controversy about having them make health care decisions for the individual when he or she is incapacitated. Likewise, if a conservator is authorized by a court to make health care decisions on behalf of an individual pursuant to Sections 2354 and 2355 the authority for making health care decisions is clear. The surrogate, agent, and conservator are all LRHCDMs, and have statutory authority for that role.

The POLST form, however, is more expansive and additionally allows, to act as a LRHCDM, a spouse, registered domestic partner, closest available relative, or person whom the individual’s medical professional signing the order believes best knows what is in the individual’s best interest and will make decisions in accordance with the individual’s expressed wishes and values to the extent known. The broader group of LRHCDMs recognized by the POLST form has the same ability as the statutorily designated LRHCDMs to make potentially life altering health care decisions on behalf of an incapacitated individual, even though that individual might, quite specifically and knowingly, never have chosen any in that group to make difficult health care decisions. While often those in that broader group may be able, both knowingly and willingly, to make health care decisions that honor the patient's wishes, others in that group might not. Given the POLST form's expansive use of the term LRHCDM beyond the existing statutory designees, the lack of a clear statutory definition of a LRHCDM, and the potential harm that an unknowing or uncaring LRHCDM can cause to a patient, it appears timely for the Legislature revisit a definition of LRHCDM and codify it.

This Bill Does Not Address Existing Issues Presented by Outdated AHCDs. By favoring the most recent expression of an individual's health care directive, there is a potential under this bill that the directive is not reflective of the individual's current wishes. For example, in instances where an individual has a decade's old AHCD and has forgotten to update the AHCD, but has changed his or her position on resuscitative measures, the AHCD would take priority over newer orders not executed by the individual or his or her official designee (the agent, surrogate or conservator). However, it is reflective of what the individual’s wishes had been, as opposed to allowing someone to make a decision today that may not be at all reflective of what the individual wants.

The Coalition for Compassionate Care in California opposed a prior version of the bill (it is not clear what the group's position is on the bill as now amended) because of concerns that outdated advanced directives may no longer express a patient's wishes:

It is expected that as a person ages and their medical condition changes, their treatment preferences may vary and medical decisions will need to be revisited. Unfortunately, advance directives are often filed away and largely forgotten until a major health crisis occurs, sometimes decades later.

POLST is intended for use by individuals who are seriously ill or within the last year of life. The POLST is a medical order which clearly specifies the medical treatments a patient wants or does not want at end of life. The form is completed based on the patient’s current medical condition and goals of care, and is signed by the physician, nurse practitioner or physician assistant AND the patient or their decision-maker. . . .

Under AB 937, the patient’s treatment choices expressed in their advance directive, even one completed decades previously, would take precedence over a current POLST completed by the patient’s decisionmaker, regardless of whether the decisionmaker felt the treatment matched what the patient would have wanted had they known the full facts of their current situation.

So, for example, a decisionmaker completing a POLST for a family member with dementia and end-stage cancer would be forced to select Attempt Resuscitation/(CPR) or Do Not Attempt Resuscitation (DNR) based on the patient’s advance directive, regardless of how long ago it was completed or whether the decisionmaker believes it is still a valid representation of the patient’s wishes.

While no longer opposed to the bill, the California Medical Association (CMA) continues to have concerns about it. CMA recognizes that the bill is "a well-intentioned attempt to better ensure that those requests regarding resuscitative measures are consistent with the known desires and best interests of incapacitated patients." However, CMA notes that "the law already requires that legally recognized decisionmakers and physicians only make decisions in accordance with the patient’s individual health care instructions, if any, and other wishes to the extent known, otherwise the law obligates them to make decisions in accordance with the patient’s best interests." CMA continues:

Current law has also long recognized substitute decisionmakers for the very purpose of ensuring that what is known about the patient’s treatment wishes is applied to real-time medical situations. The law expects that as a patient’s medical condition changes, patient treatment preferences may vary and medical decisions need to be revisited. Thus, as patient medical conditions change, the health care decisionmaker stands in the shoes of the patient and acts on their behalf.

Therefore, while CMA appreciates recent amendments to the bill to ensure that at least officially designated health care decisionmaker requests and POLSTs made more recently remain effective – meaning those made by a designated health care agent, surrogate, or conservator, as defined under current law – the bill still limits spouses and other family members from serving in this role if the patient, as often occurs, failed to officially designate them as one of those specified individuals prior to their loss of capacity.

It is clear that there is no perfect legislative solution to ensure that an individual’s wishes are always known and can always be complied with. All adults should be encouraged to execute and regularly update their AHCDs and/or POLSTs to ensure that their current wishes are known to others and can be followed, even if they can no longer make those wishes known. But in the absence of that ideal goal, this bill seeks to make it more likely that the patient's wishes will be honored.

This Bill Also Clarifies That a Surrogate Has Authority Over an Agent in Making Health Care Decisions. This bill also clarifies that a surrogate, when properly appointed by a patient and limited to statutory restrictions, has authority over an agent when determining the health care decisions on behalf of an incapacitated individual. A current reading of the statutes could create some confusion because a surrogate has priority over an agent (Section 4711 (d),) and an agent has priority over "any other person" when making a health care decision on behalf of the individual (Section 4685). The California Hospital Association raised concerns about the ambiguity that exists under current law when a patient names an agent in an AHCD, has also orally designated a surrogate during a particular hospitalization, and becomes incapacitated and no longer able to clarify who is to make the health care decisions. This bill grants the priority to a surrogate over an agent for that particular hospitalization, thus eliminating the ambiguity in current law.

ARGUMENTS IN SUPPORT: The California Long-Term Care Ombudsman Association hears concerns from local ombudsman programs about facilities "faced with multiple Advanced Health Care Directives and POLST directives which have conflicting end of life request. It is easy to understand why busy staff might seek the solution of looking for the most recent date on the document regardless of the previously stated wishes." The Ombudsman Association believes that this bill is "an important piece of legislation that recognizes the importance of a person's right to self-determination in making decisions about their end of life experience."

ARGUMENTS IN OPPOSITION: The bill is opposed by the California Right to Life Committee (CRLC), which is concerned that the bill will actually have the opposite result than what is intended:

CLRC supports the right of the individual to have his/her health care instructions followed or to allow his/her appointed health care advocate to carry out the orders.

However, the present language of this bill continues to open the door for the medical personnel to determine who is the most reasonably available, listed person to make decisions. Including anyone at the residential facility where the patient might be staying, or the hospitalist who happens to be on duty at the time, but unfamiliar with the patient or the family. This could be viewed as a relaxation of the law and an attempt to write in a safeguard to protect the physician or other personnel who might be uncaring and acting in haste to attend the patient, not truly honoring and respecting the individual.

Therefore, when there might be confusion as to the resuscitative actions as to the written or oral position of the patient, the medical personnel appear to have the authority to accept the decision of either the surrogate designated, the agent designated, or the conservator. Whoever is the most reasonably available.

One might consider that AB 937 was written for elderly patients, but it is one that could be used for anyone, even an otherwise able-bodied patient. This could even lead to authorizing a quick action to accommodate organ transplant teams. CRLC questions what is truly intended and whose rights are actually being protected. The bill language also exposes the patient to aggressive assisted suicide salesmen and promoters.

REGISTERED SUPPORT / OPPOSITION:

Support

Conference of California Bar Associations (sponsor)

California Advocates for Nursing Home Reform

California Long-Term Care Ombudsman Association

Opposition

California Right to Life Committee, Inc.

Coalition for Compassionate Care of California (to a prior version of the bill)

Analysis Prepared by: Leora Gershenzon and Karim Troost / JUD. / (916) 319-2334