The Spring/Summer 2015 edition of the New York State Bar Association Health Law Journal features an article, Medical, Ethical and Legal Obligations to Honor Individual Preferences Near the End of Life, co-authored by Patricia Bomba, MD and Jonathan Karmel, Esq. Because of its perceived value to a broader audience, the NYSBA Health Law Journal granted the authors permission to reprint.
The article outlines the ethical-legal framework for making medical decisions under New York State Public Health Law (NYSPHL) highlighting four key statutes: 1) Health Care Proxy Law; 2) Family Health Care Decisions Act (FHCDA); 3) Surrogate’s Court Procedure Act 1750-b (SCPA § 1750-b); and 4) Medical Orders for Life-Sustaining Treatment (MOLST.)
In New York, a seriously ill person who might die in the next year and has the ability to make medical decisions regarding life-sustaining treatment has the right to discuss his/her goals, values and wishes with his/her physician, and complete the New York State Department of Health (NYSDOH) MOLST form (DOH-5003).
The authors clarify the authority to make MOLST decisions. A health care agent or a Public Health Law surrogate CANNOT demand life-sustaining treatment and hospitalization for an individual when the resident loses capacity and his/her health status worsens, if that request conflicts with the individual’s prior decisions, made when the person had capacity and the medical orders were issued by the attending physician on the MOLST.
The authors provide real examples of what should and should not happen with MOLST. Further, the authors examine when there are failures in following MOLST orders and review several reasons which have been identified to date.
Finally, the article outlines significant recommendations which have been made nationally with the 2014 Institute of Medicine (IOM) Report Dying in America: Improving Quality and Honoring Individual Preferences Near the End of Life and in New York State to improve compliance with MOLST and other relevant laws.
1. Clinician Training Should be Strengthened.
2. Public Education and Engagement in Advance Care Planning (ACP) Should Be Encouraged.
3. Many of the problems identified in the implementation of advance care planning would be remedied by the expansion and implementation of eMOLST.
An individual has the right to accept or refuse treatment under the Patient Self-Determination Act (PSDA), including the right to accept or refuse any or all life-sustaining treatment near the end of life. While public health law varies from state to state, the ethical framework is the same and PSDA applies. For information on Physician Orders for Life-Sustaining Treatment (POLST) Paradigm programs in other states, view POLST.org. NY’s MOLST is an endorsed POLST Paradigm Program.