TESTIMONY BEFORE SENATE CIVIL JUSTICE COMMITTEE June 24, Marilyn J. Maag Porter Wright Morris & Arthur LLP Cincinnati, Ohio Dayton, Ohio

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1 TESTIMONY BEFORE SENATE CIVIL JUSTICE COMMITTEE June 24, 2015 Marilyn J. Maag Porter Wright Morris & Arthur LLP Cincinnati, Ohio Dayton, Ohio I. Definition of POLST (PHYSICIAN ORDERS FOR LIFE-SUSTAINING TREATMENT) A. POLST is a program, developing nationwide, to elicit and to honor the medical treatment goals of persons with advanced progressive illness or frailty. POLST involves: 1. Conversation. First and foremost, POLST requires a conversation, or a series of conversations, between health care professionals and the patient or the patient's authorized surrogate. The purpose of the conversations is to clarify the patient's goals and treatment decisions in light of the patient's current condition. The quality of the conversation is key to the success of POLST. 2. Medical Orders. The conversation results in medical orders that are recorded in a standardized form, which is kept in the front of the patient's medical records or with the patient in the patient's home. The orders generally address end-of-life health care issues, such as cardiopulmonary resuscitation, the level of medical intervention desired, the use of medically supplied nutrition and hydration, the use of antibiotics, and the use of ventilation. 3. Continuity of Care. Ideally, POLST forms should be available wherever the patient goes, so that care is provided in a consistent fashion and so that the patient's end-oflife health care decisions can be re-evaluated and updated as needed.

2 4. A Process. The POLST paradigm is most accurately viewed as a process, not a form. The form is only one part of the process. B. POLST is not an advance directive. While all adults are encouraged to think about and sign advance directives, POLST forms are presented to patients in approximately the final year of their lives. POLST forms include medical orders addressing the patient's current situation, not a possible future scenario. Advance directives are signed at home, in law offices, at hospitals, or wherever convenient. POLST forms are signed in medical settings and result in medical orders. The Table below clearly shows the differences between these documents: Key Comparison of Advance Directives and POLST Paradigm Advance Directives POLST Paradigm Population: All adults Serious illness or frailty Timeframe: Future care/ future conditions Current care/current condition Where Any setting, not Medical setting completed: necessarily medical Resulting product: Surrogate role: Portability: Periodic review: Surrogate appointment & statement of preferences Cannot complete Patient/family Patient/family Medical orders based on shared decisionmaking Can consent if patient lacks capacity Health Care Professional Provider to initiate II. The Nationwide Development of POLST The following chart shows that in almost all of the states of our country, there is either a developing POLST program or a mature program in place.

3 III. What POLST Would Add to End-of-Life Health Care Decision-Making in Ohio A. Consent to Treatment. In the United States, a competent adult has a constitutionally protected right to decide whether to consent to proposed medical treatment. 1 B. Living Will Declaration. Under Ohio law, a competent adult may sign an advance directive, known as a living will declaration, which documents the declarant's decision that life-sustaining treatment will be withheld or withdrawn if the declarant is in a terminal condition or a permanently unconscious state. This written direction applies to future health care, not current health care. C. Power of Attorney for Health Care. Under Ohio law, a competent adult may designate an attorney-in-fact to make health care decisions for him or her if and when the principal is not able to make his or her own decisions. 1 Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 110 S. Ct. 2841, 111 L. Ed. 2d 224 (1990).

4 1. The attorney-in-fact generally may make any health care decisions the principal could make; however, Ohio law places some limitations on when an attorney-in-fact may authorize the withholding of withdrawal of life-sustaining treatment at the end of the principal's life. 2. The attorney-in-fact may sign a do-not-resuscitate order on behalf of the principal. 3. The attorney-in-fact and health care providers are expected to follow the principal's advance directive (living will declaration). D. Addition of POLST/MOLST. If POLST were implemented in Ohio, a competent adult, in more or less the final year of his or her life, could sign a POLST form, documenting the person's decisions about the scope of his or her current medical treatment. 1. If the adult became incompetent at some point in time, his or her power of attorney for health care would become operative. The attorney-in-fact then would make health care decisions for the principal, and could sign a POLST form on behalf of the principal. As stated above, Ohio law places some limitations on the withholding or withdrawal of lifesustaining treatment. 2. If the adult became incompetent at some point in time, his or her living will declaration also would become operative. The attorney-in-fact and health care providers are expected to follow the principal's advance directive (living will declaration). E. Existing Laws and Protections Remain in Place. The currently proposed MOLST statute in Ohio, SB165, would not change the existing Ohio laws regarding the living will declaration and the health care power of attorney; rather, the proposed statute would add an option for the citizens of Ohio. The MOLST statute creates a system for encouraging end-of-life

5 health care discussions and for documenting and tracking the medical orders that result from those discussions. # June 23, 2015 Cincinnati, Ohio

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