The Evolution of Health Care Advance Planning Law and Policy

• Published in: The Milbank quarterly Vol. 88; no. 2; pp. 211 - 239
• Main Author: SABATINO, CHARLES P.
• Format: Journal Article
• Language: English
• Published: Malden, USA Blackwell Publishing Inc 01-06-2010; Wiley Subscription Services, Inc; Wiley; Blackwell Publishing Ltd
• Subjects: Advance care planning; Advance Care Planning - history; Advance Care Planning - legislation & jurisprudence; Advance Care Planning - organization & administration; Advance directives; Advance Directives - history; Advance Directives - legislation & jurisprudence; Care management; Central government; Changes; Common law; Convergence; Death; Decision making; Health care; Health care industry; Health care policy; Health planning; Health policy; Health services; History, 20th Century; History, 21st Century; Humans; Landscapes; Law; Legal systems; Living wills; Living Wills - history; Living Wills - legislation & jurisprudence; Medical service; Original; Physicians; Planning; Planning law; Policy Making; Power of attorney; Practice; Public policy; Resuscitation Orders - legislation & jurisprudence; Sociology; Sociology of health and medicine; State government; State law; Statutory law; Surrogates; Terminal Care - history; Terminal Care - legislation & jurisprudence; United States; United States; United States > US; Act of Parliament; Decision Making; Public Health; Health Care; Legislation; Health Policy; State role
• ISSN: 0887-378X; 1468-0009
• DOI: 10.1111/j.1468-0009.2010.00596.x

Context: The legal tools of health care advance planning have substantially changed since their emergence in the mid-1970s. Thirty years of policy development, primarily at the state legislative level addressing surrogate decision making and advance directives, have resulted in a disjointed policy landscape, yet with important points of convergence evolving over time. An understanding of the evolution of advance care planning policy has important implications for policy at both the state and federal levels. Methods: This article is a longitudinal statutory and literature review of health care advance planning from its origins to the present. Findings: While considerable variability across the states still remains, changes in law and policy over time suggest a gradual paradigm shift from what is described as a "legal transactional approach" to a "communications approach," the most recent extension of which is the emergence of Physician Orders for Life-Sustaining Treatment, or POLST. The communications approach helps translate patients' goals into visible and portable medical orders. Conclusions: States are likely to continue gradually moving away from a legal transactional mode of advance planning toward a communications model, albeit with challenges to authentic and reliable communication that accurately translates patients' wishes into the care they receive. In the meantime, the states and their health care institutions will continue to serve as the primary laboratory for advance care planning policy and practice.