Many individuals in Massachusetts, especially elderly patients living in Skilled Nursing Facilities (“SNFs”) or Assisted Living Residences (“ALRs”), may have completed a Massachusetts Medical Orders for Life-Sustaining Treatment (“MOLST”) that may limit what care health care providers should and can give those patients. Providers should be aware of how these forms limit their options and in what circumstances can expand their liability.
In general, a MOLST provides instructions from a patient to health care providers that declines certain forms of health care. Where there is a conflict between a facility’s policy and a MOLST, the general rule is that the facility’s policy should control, as the MOLST is designed primarily for end-of-life decisions or chronic conditions as opposed to emergency situations. As most facilities already have procedures in place, facilities should take the time to review their internal policies for dealing with patients who have executed a MOLST. A MOLST should always be kept near the front of a patient’s file and providers should always make EMS personnel aware of the MOLST in the event that EMS is called to administer care.
A MOLST is a standardized form published by the Massachusetts Executive Office of Health and Human Services (EOHHS) that allows individuals to translate their wishes into valid medical orders that can be honored by health care professionals. The EOHHS’s motive for standardizing and publishing the MOLST is to make health care providers more comfortable acquiescing to patients declining care and less concerned about liability. The involvement of EOHHS and the standardization of the MOLST may put health care providers at ease knowing that the Commonwealth of Massachusetts has sanctioned and regulated the methods in which individuals decline medical care.
The MOLST was first authorized in Massachusetts under M.G.L. c. 305 Sec. 43 and enacted in 2008. It was intended to be used by seriously ill patients, people suffering from chronic conditions, or individuals with end-stage conditions who have specific wishes about end of life and palliative care. Hospice and nursing home patients may commonly complete a MOLST. The MOLST is not intended to be used by healthy individuals or to apply to acute and/or emergency medical conditions.
A MOLST does not replace or supersede a health care proxy or advance directive but it does create binding and effective health care instructions the moment it is signed. A health care proxy only takes effect when the principal becomes incompetent and an advance directive only applies if the principal enters a vegetative state with no reasonable likelihood of recovery. A MOLST focuses on a patient’s current state of health and medical directions, while health care proxies and advance directives plan for, and respond to, a decline in health that may take place in the future.
A MOLST is very similar to a Comfort Care / Do Not Resuscitate (CC/DNR) form in that it can instruct health care providers not to resuscitate or intubate a patient. If a patient has both a MOLST and a DNR, the most recently executed form will control.
A MOLST is freely revocable and amendable. A patient may at any time request treatment that would otherwise be declined under the terms of a MOLST.
EOHHS Sample Policy for SNFs
The EOHHS has published a sample MOLST policy for use by skilled nursing facilities. The sample policy indicates that the MOLST is most suitable for use for residents approaching the “end of life due to a serious medical condition.” Although the sample contains examples including dementia, life threatening injury or illness or frailty, the reliance on a MOLST to as a means of deflecting liability is not appropriate from a risk management standpoint. For example, although a patient may have a MOLST that indicates the patient does not want to be sent out to the hospital, more likely than not, the standard of care in the setting of an acute injury (i.e., a broken bone, concussion, or cut requiring stitches) would require the patient to be sent out to the hospital for evaluation and work up of these injuries as these services cannot be provided at the facility and the injuries are acute in nature. Accordingly, there must be a well-documented discussion about the facility’s policies in this regard in relation to the MOLST.
EOHHS guidelines for ALRs
The EOHHS has also published rules, regulations, and guidelines for ALRs on how to treat a MOLST. These guidelines explicitly touch on the matter of dealing with a patient whose MOLST says to NOT transfer the patient to a hospital. For those cases, the ALR should call emergency medical services if there is an emergency, but then give the MOLST to EMS and advise them the patient has completed a MOLST. According to the guidelines:
“What if my residence has a policy that we call 9-1-1 for all emergencies but a resident has a MOLST form that has the box ‘Do Not Transfer to Hospital (unless needed for comfort)’ checked?
“The presence of a MOLST does not change the policies & procedures of the ALR, so routine procedures for emergencies should be followed. If 9-1-1 is called, responding Emergency Medical personnel should be presented with the MOLST form on arrival at the residence, so that they may provide care consistent with the patient’s medical decisions documented on the form.”
Hospitalization Dictated by Policy
As stated above, many SNFs, ALRs and other facilities have an institution policy that requires sending a patient to an emergency room for evaluation in certain situations. An executed MOLST may instruct health care providers to not hospitalize that patient. However, in these situations, where the institution’s policy and the MOLST conflicts, the institution’s policy should control, while also trying to best accommodate the terms of the MOLST.
Facilities should not ignore their own policy where there is a MOLST involved. Ignoring one’s own policy can greatly expand the facility’s liability in the event of a lawsuit. Complete departure from policy and procedure can be very strong evidence of negligence.
Developing Institutional MOLST Policy
Because departing from policy is harmful both for the patient and the institution’s liability, SNFs and ALRs should develop their own internal policy for dealing with patients who have executed a MOLST. This policy should instruct personnel on how to intake a MOLST form, how to update patient files with the form, indicate its priority, notify other parties who become involved in the process about the MOLST, and what to do in certain emergency situations in light of the MOLST’s directives. SNFs and ALRs may find it helpful to incorporate guidelines from EOHHS into the drafting of their own MOLST policy.
In the event that a patient or patient’s family challenges an SNF’s or ALR’s treatment of a patient with a MOLST, it will be helpful to point to a standard MOLST policy and the manner in which the SNF or ALR followed it to the letter. Drafting and following a MOLST policy will reduce administrative inefficiency, clear channels of communication, improve patient care, and minimize the scope of organizational liability.
The EOHHS has published FAQs, fact sheets, and a separate sample MOLST policy for use by ALRs, available at www.molst-ma.org.