Lori M. Craig
J.D. Candidate, 2014, Indiana University Robert H. McKinney School of Law
B.A. 1997, Indiana University – Bloomington, Bloomington, Indiana.
lori.m.craig@gmail.com

“’For Christ’s sake, let me die in peace!’ he said.
. . .
‘You know perfectly well you can do nothing to help me, so leave me alone.’
‘We can ease your suffering,’ said the doctor.
‘You can’t even do that; leave me alone.’
. . .
He drew in a breath, broke off in the middle of it, stretched himself out, and died.” [1].

INTRODUCTION

Partly in response to concerns that other advance directives were falling short, Indiana recently enacted legislation creating physician order for scope of treatment (“POST”). [2].  Does POST meet the goal of providing patients more control over these deeply personal decisions?

Determining a patient’s wishes in the absence of an advance planning document is perilous at best. [3].  In national coverage of a case regarding the right to refuse treatment, CNN quoted a medical ethicist who stated “I know it’s hard, . . . but [t]alk to your friends; talk to your family [and say][t]his is what I would want.” [4].  Indiana recognizes four primary forms of advance directives, including POST. [5].  In contrast to the other advance directives in Indiana, a POST form is completed by a qualified healthcare provider in a medical setting with the patient and specifically designates various interventions and whether they should be undertaken in the course of treating this patient. [6].  POST forms are more useful than advance directives in emergency settings because they directly translate “patients’ wishes . . .  into medical orders that emergency personnel may honor.” [7].

I. COMMUNICATION

It is critical that physicians provide patients with clear and accurate information regarding the risks and benefits of  treatment options, and that they provide this information in a way that enables patients to come to a decision in line with their culture, their values, and their essence of self. [8].  Patients rely on healthcare providers not only to advise them as to the treatment protocol to pursue, but also to provide the information needed for them to evaluate various curative measures in light of potential side-effects, potential for efficacy, and the patient’s tolerance for further treatment. [9].  As one practitioner has said, “[t]oo many clinicians abdicate their responsibility to tell patients and families, ‘[t]his is the procedure that’s indicated now, here’s why we’re doing it, and we will stop it if the patient doesn’t want it or if it is no longer working.’” [10].  POST helps reaffirm lines of communication between physicians and patients about diagnosis, treatment, prognosis and side effects.  It also helps the patient, the patient’s loved ones, and the patient’s care team understand the patient’s wishes for her end-of-life care.

II. TREATMENT PROTOCOL

A patient’s desires for pain control must be clearly articulated within a treatment protocol because a clear treatment protocol increases the likelihood that the patient’s wishes will be followed. [11].  Clinicians may fail to discuss “treatment limitations or burdens, or the option of palliative care.” [12].  This is true despite evidence showing that “patients who received palliative care after some treatment for non-small-cell-lung carcinoma had a longer life and a better quality of life than patients who only had aggressive treatment.” [13].  This data belies that the widely held belief that the only way to extend life span is with aggressive treatment, which may diminish quality of life.

With certain terminal conditions, the patient must decide between living an able-bodied existence for a shorter time or a restricted-ability existence for a longer time.  Family members’ expectations, cultural norms, and the religious beliefs of the patient are just a few factors that will have to be weighed by the patient in coming to a decision. [14].  POST provides a clearly articulated treatment plan for terminally-ill patients and addresses the treatment of pain when curative care becomes futile or overly burdensome, and a transition to palliative and hospice care is clinically indicated.

III. PAIN RELIEF

POST forms not only require that physicians and patients discuss patients’ treatment preferences, but also reiterate that Indiana permits the administration of any medication to relieve pain and suffering. [15].  POST identifies, quickly and clearly, which patients desire maximum interventions and which do not.

Studies show that patients report inadequate pain management [16] and that physicians have undertreated pain. [17].  One of the reasons physicians have undertreated pain is that they feared prosecutorial and regulatory efforts related to the abuse, diversion, and trafficking of prescription pain medications to those abusing drugs. [18].  Pain medications are strictly regulated, not only due to the risk of addiction for the patient to whom the medication is prescribed, but also the risk of resale and trafficking of the drugs. [19].  There must be a clear policy directive encouraging adequate pain control for suffering patients, particularly those suffering from terminal conditions. [20].  In fact, Indiana has specifically exempted pain control from its prohibition of physician-assisted suicide. [21].  By making explicit allowance for pain control, Indiana has recognized the critical need for pain management in the terminally ill, especially those who have opted to discontinue treatment.

A second major factor in the inadequate treatment of pain is the lack of comprehensive medical education in palliative care and end-of-life concerns.  Very few medical schools require a separate course in end-of-life care. [22].  Only seventeen percent of residency programs offered a hospice rotation. [23].  A survey of medical school students, residents, and faculty showed that one-third of the students and one-fifth of the residents surveyed have not been taught basic pain management. [24].  Less than twenty percent of students surveyed had taken a course in end-of-life care and further educational deficiencies were noted in “treatment of depression, bereavement care, and attention to the fears and concerns of dying patients.” [25].  Other proposals designed to encourage pursuit of palliative care training include requests for “Medicare funding for palliative medicine fellowship training, loan forgiveness for palliative care physicians and nurses, development of federally funding palliative care career development awards, and a mandate to integrate core palliative care training as a criteria for state licensure.” [26].  As the number of patients seeking end-of-life treatment increases, there will be a call for more caregivers experienced in hospice care and for more education on palliative care in both academic and practical realms. [27].  Along with these factors, improved end-of-life healthcare planning documents will result in more sufficient pain relief measures administered to patients.

CONCLUSION

The essence of patient autonomy is to permit the patient to have the authority to direct her care.  There is room for improvement, but POST answers the most urgent concerns of terminally ill patients: 1) that they are able to communicate with their physicians about their true prognosis, 2) that they are able to create a clearly articulated treatment plan, and 3) that they are able to request appropriate and adequate pain relief.  POST is a tremendous step in the right direction for improving patient autonomy at the end of life.

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[1]. LEO TOLSTOY, THE DEATH OF IVAN ILYICH 125-26, 134 (Lynn Solortaroff, Bantam Books 1981) (1886).

[2]. IND. CODE §§ 16-36-6-1–§16-36-6-20 (2013).  In other states, the forms are called POLST (Physician Orders for Life-Sustaining Treatment), MOLST (Medical Orders for Life-Sustaining Treatment) or other variants.  ABA Commission on Law and Aging, Summary of Healthcare Decision Statutes Enacted in 2012, 1 (2013), available at http://www.americanbar.org/content/dam/aba/administrative/law_aging/2013_Health_Decisions_2012_Legislative_Summary.authcheckdam.pdf.

[3].  Matter of Conroy, 486 A.2d 1209, 1230 (N.J. 1985) (“Of course, dealing with the matter in advance in some sort of thoughtful and explicit way is best for all concerned.”).

[4]. STEVE ALMASAY & MICHAEL MARTINEZ, Paralyzed After Falling From Tree, Hunter And Dad-To-Be Opts To End Life, CNN (updated Nov. 7, 2013), http://www.cnn.com/2013/11/06/us/paralyzed-indiana-deer-hunter-ends-life/.  The family of a thirty-two-year-old Indiana deer hunter, who was paralyzed from the shoulders down after a fall from a tree, requested that he be wakened from his sedation to confirm his prior determination as to whether to continue supportive care.  When awakened, the hunter confirmed his prior request to be allowed to die in the event of an injury such as the one he sustained, and he was removed from the ventilator.  He died that night, surrounded by his family.

[5].  As of July 1, 2013, Indiana also recognizes a document known as “Indiana Physician Orders for Scope of Treatment” or “POST.” Ind. Code § 16-36-6-18. See also INDIANA STATE DEPARTMENT OF HEALTH, ADVANCE DIRECTIVES: YOUR RIGHT TO DECIDE, 4 (Updated July 1, 2013), available at http://www.in.gov/isdh/files/advanceddirectives.pdf (last visited Mar. 10, 2014).

[6]. IND. CODE § 16-36-6-8 (2013); IND. CODE § 16-36-6-9 (2013).

[7]. ARTHUR DERSE, Keynote Address at the 2013 Cleveland Clinic Bioethics Research Day, in BIOETHICS REFLECTIONS, 7 (2013), available at http://my.clevelandclinic.org/Documents/Bioethics/reflections/bioethics-reflections-fall-2013.PDF.

[8]. KATHRYN L. TUCKER, When Dying Takes Too Long: Activism for Social Change to Protect and Expand Choice at the End of Life, 33 WHITTIER L. REV. 109, 131-32 (2001).

[9]. Id.

[10]. DERSE, supra note 7 at 6.

[11]. TUCKER, supra note 8 at 134-35 (2001).  “[T]here is strong evidence that chronic pain is too often under-treated . . . if the pain management guidelines [of medical societies and organizations] were followed, pain could be relieved in the great majority of patients.” TIMOTHY MCINTIRE, Grandma’s Pain, TENN. BAR J., Oct. 2004, at 12, 16.

[12]. DERSE, supra note 7 at 6.

[13]. Id. See also LAURA P. GELFMAN & DIANE E. MEIER, Making the Case for Palliative Care: An Opportunity for Healthcare Reform, 8 J. HEALTH & BIOMED. L. 57, 62-63 (2012).

[14]. KATHLEEN A. NEGRI, Advance Care Planning: The Attorney’s Role in Helping Clients Achieve a “Good Death,” COL. LAW, July 2012, at 67, 67.

[15]. IND. CODE §16-36-6-8 (2013).  “In consultation with you or your legal representative, your physician will write orders that reflect your wishes . . . .”INDIANA STATE DEPARTMENT OF HEALTH, ADVANCE DIRECTIVES: YOUR RIGHT TO DECIDE, 5 (Updated July 1, 2013), available at http://www.in.gov/isdh/files/advanceddirectives.pdf (last visited Mar. 10, 2014).  “Comfort Measures (Allow Natural Death): Treatment Goal: Maximize comfort through symptom management.  Relieve pain and suffering through the use of any medication . . . .” Indiana Physician Orders for Scope of Treatment (POST), State Form 55317 (6-13) available at Indiana State Department of Health, Advance Directives Center, http://www.in.gov/isdh/25880.htm (last visited Mar. 10, 2014).

[16]. TUCKER, supra note 8 at 146.

[17]. MCINTIRE, supra note 11 at 13; KATHY L. CERMINARA, Hospice and Healthcare Reform: Improving Care at the End of Life, 17 WIDENER L. REV. 443, 469 (2011).

[18] CERMINARA, supra note 17 at 469.

[19].  21 U.S.C. § 812(b) (2012).

[20]. See also MCINTIRE, supra note 11 at 35. “Now that the standard of care for the treatment of chronically ill pain patients is well established through accepted medical protocols, the enforcement of a patient’s right to pain relief again may be seen most efficiently through traditional medical malpractice actions.” Id.

[21]. IND. CODE § 35-42-1-2.5(a)(1) (1994).

[22]. RUTH STERN & J. HERBIE DIFONZO, Terminal Ambiguity: Law Ethics and Policy in the Assisted Dying Debate, 17 B.U. PUB. INT. L.J. 99, 134 (2007).

[23]. Id.

[24]. Id.

[25]. Id.

[26]. GELFMAN & MEIER, supra note 13 at 77-78.

[27]. Id.; STERN & DIFONZO, supra note 22 at 134.