Department of Health
John J. Dreyzehner, MD, MPH, Commissioner

1. Should facilities develop a form to use when appointing a surrogate?

On May 3rd, 2005 the Board for Licensing Health Care Facilities approved a model form to use in the appointment of a surrogate. The law requires the physician to promptly record in the patient’s clinical record and communicate the determination to the patient, if possible, and to any person then authorized to make health care decisions for the patients. When documenting his decision, the physician should also document how he arrived at his decision. Forms are available in English or Spanish at this web site.

2. How will a facility know if a surrogate named on a POST is patient appointed or physician appointed?

One should have a copy of the patient's Advance Care Plan or Health Care Power of Attorney form which would have the name of the appointed agent. If these forms have not been signed, then the physician would have had to appoint the surrogate. Also, one could ask the question at time of admission to clarify the name of the individual if the name or signature on the form is not familiar. The form “Appointment of Surrogate” is available for facilities to use if a surrogate is being appointed by the designated physician. This form along with the POST form should accompany the patient if transferred between facilities.

3. Can a physician appointed surrogate speak for the patient with regard to withholding artificial nutrition and hydration?

A physician-appointed surrogate may not make the decision to withhold artificial nutrition and hydration with only the surrogate decision. But, when the designated physician and a second independent physician certify in the patient's current clinical records that the continuation of artificial nutrition or hydration is merely prolonging the act of dying, and the patient is highly unlikely to regain capacity to make medical decisions, then artificial nutrition and hydration can be withheld.

4. Who should document in the medical record when the patient lacks capacity and the reason for appointment of a surrogate?

The appointment of a surrogate can only be done by a designated physician. The form “Appointment of Surrogate” covers all points that must be documented – documenting that patient lacks capacity and reasons for appointment.

5. Who can complete Section A through E on the POST form?

A nurse or social worker could complete Sections A through E and then have the physician sign the form. Emphasis should be on explaining the choices on the POST form and documenting the discussion.

6. What is the purpose of the box in the lower right hand column labeled “Office Use Only”?

This section can be used by the facility however they would like to use it. A suggestion would be the signature of an individual evaluating the process such as QI officer or risk manager.

7. Is it mandatory to complete the section on the back of the POST form?

The Department of Health, Health Care Facilities Division requires the completion of both sides of the post. The signature of a patient, parent of minor, or guardian/health care representative must be obtained, if possible. This section was developed to help the facility document involved parties in the discussion. If the signature is not obtained for whatever reason, at a later date the facility staff can print the name of the individual in the section provided, noting relationship, or facility staff may note in the same section why that signature is unobtainable. The law states that a Universal Do Not Resuscitate order must be signed by a physician for his/her patient with whom he/she has a bona fide physician-patient relationship, but only with the consent of the patient or consent of his agent, surrogate, or other authorized person. Also, the law states that a physician can issue a written order, other than a Universal Do Not Resuscitate order, in accordance with accepted medical practices. Accepted medical practices include addressing level of medical interventions, medically administered fluids and nutrition, use of antibiotics for new conditions, basis for DNR order and who was involved in the discussion.

8. Should receiving facilities or ambulance services consider a full code if only the front section of the POST form is obtained?

The POST form (front and back) must be provided to emergency medical service providers when transferring patients. The health care facility initiating the transfer must also provide the receiving facility a copy of the Universal Do Not Resuscitate order. Ambulance services and receiving facilities should request a full copy of the form when they realize the form is incomplete. The ambulance service and receiving facility should honor the UDNR (Universal Do Not Resuscitate) order that has a physician signature on the front section if an emergency situation arises before receiving the completed copy of the POST form (back page). Repeated behavior of not copying and completing the back of the POST form is a violation of the law and should be reported to the Division of Health Care Facilities, Complaint Section. (Local number 615-741-7221 or toll free number 1-877-287-0010).

9. How does the order for Physician Scope of Treatment (POST) form ensure that the wishes of those terminally ill and incapacitated are followed?

The purpose of the Universal Do Not Resuscitate (UDNR) form (POST) is to ensure that the wishes of a terminally ill individual are followed even if they are incapacitated. If the Advance Care Plan form (also known as Living Will) is not prepared while an individual has capacity, a physician must declare that he no longer has capacity and note it on his chart. If an agent or surrogate has not been appointed when an individual is determined to be incapacitated, a surrogate may be identified by his supervising health care provider to make decisions for him. Care must be taken to insure that the person appointed as surrogate is chosen from those who have exhibited care and concern for the patient, is familiar with his values, is willing to serve and is reasonably available. A person cannot be appointed as surrogate if he is subject to a protective order that does not allow contact.

10. Who can sign the POST? Will a verbal order be acceptable?

The POST is designed to encourage physician/patient discussion about end-of-life care when an individual has been diagnosed with a terminal illness. However, sections A-E of the form may be completed by a nurse or social worker after a verbal physician order. The nurse or social worker can obtain the physician’s signature later. Should the individual’s condition suddenly worsen before the physician’s signature is obtained, a physician could issue a verbal order based on the patient’s wishes expressed on the front of the POST.

11. Does the state envision a POST form being utilized differently in a home care or hospice setting than an acute hospital setting?

No. Rules and regulations for use of the POST are the same for all licensed facilities in the state.

12. Are there any situations in which a health care provider could honor a POST if the POST had not yet been signed by a physician, but had otherwise been completed by the patient and a nurse?

The POST should only be completed with the patient after a physician has issued a verbal order to do so. It would, therefore, be valid if completed and the physician’s signature had not yet been obtained.

13. Can family members, present at the time a patient goes into cardiac arrest, override a POST signed by the patient and a physician that states Do Not Resuscitate?

Family members cannot override a POST signed by a patient and physician that states “Do Not Resuscitate.” The purpose of any type of advance directive, including the POST, is to allow an individual to express his own wishes for end-of-life care.

14. How can a health care facility honor a POST that has been signed by a physician who has not been credentialed by that health care facility and continue to comply with JCAHO standards Medical Staff 2.20 and 3.20?

The POST takes into consideration the fact that the patient entering a hospital may have a physician that does not have privileges at that specific facility. The back of the POST form gives instructions for reviewing the form. It states that a POST should be reviewed if: “the patient is transferred from one care setting or care level to another.”

Hospital admission is an ideal time to review the POST. If the patient is competent upon admission, the admitting physician could review the form with him. If the patient is not competent upon admission, the physician could review the POST with his agent, guardian, or surrogate. Those parties are legally obligated to follow the patient’s wishes, if known, or to take action in his best interest if his wishes are not known.

15. Is there a time limit on the validity of a POST?

No. Pursuant to Tennessee Code Annotated § 68-11-224 (3) (c) the POST, as a valid Universal Do Not Resuscitate order, shall remain in effect until revoked.

16. How should the facility handle a conflict between the patient’s instructions per a valid living will and the expressed wishes of the patient’s agent for healthcare decisions if the patient is unable to communicate his wishes?

Since the living will is a documentation of a patient’s end-of-life care preferences, it must be followed when there is a conflict between decisions of the patient’s agent and a valid living will.

The purpose of a living will, as with any advanced directive, is to provide documented proof of the patient’s end-of-life care wishes. Said documents are prepared with the expectation that they be followed. An individual appoints an agent to make health care decisions for him when he is no longer capable of making them himself. The agent is legally obligated to make decisions following the wishes of the patient, if they are known, and in his best interest if they are not known.

Pursuant to statute, a guardian must comply with a patient’s individual instructions and may not revoke a patient’s advance directive without a court order. Additionally, an agent’s health care decision takes precedence of that of a guardian without a court order. Tennessee Code Annotated § 68-11-1807.

If an agent or guardian wishes to give end-of-life instructions that are in conflict with a valid written advance directive signed by a patient, they will need to get a court order.

17. Can an agent for healthcare decisions override the patient’s wishes outlined on a POST which has been signed by the patient and a physician?

No. As stated above, the agent has been appointed by the patient to make his healthcare decisions when he is not longer capable of doing so himself. He is legally obligated to follow the patient’s wishes for end-of-life care, if known and to make decisions in his best interest otherwise. His decisions cannot override those on a POST signed by the patient and a physician as they are written documentation of the patient’s wishes.

18. Can an agent for healthcare decisions override the patient’s wishes outlined on a POST that has been signed by the patient, but not by a physician?

The POST is only completed upon verbal order of the patient’s physician. It, therefore, becomes legally valid when it is signed by the patient. The POST is signed by the patient when he is capable of making healthcare decisions, and it constitutes written evidence of his preferences for end-of-life care. His agent is legally obligated to follow those preferences.

19. How should a healthcare facility handle a conflict between the patient’s instructions via a valid living will and the instructions included on a valid POST?

Pursuant to Tennessee Code Annotated § 68-11-1804 (d), “An advance directive that conflicts with an earlier advance directive revokes the earlier directive to the extent of the conflict.”

This means that to determine whether to follow conflicting instructions on a valid living will and a valid POST, the treating physician will have to look at the date of execution of both documents. Instructions on the document executed last must be followed to the extent of the conflicting instructions.

If there is a conflict between the patient’s valid living will and orders a physician puts on the POST, the conflict must be resolved by the facility’s Ethics Committee and facility administration.

20. How should a healthcare facility handle a conflict between a valid living will and a valid POST that was completed by a surrogate and signed by a physician?

To be valid a living will must be executed when the individual executing it is competent. The surrogate is legally obligated to make healthcare decisions based on the known preferences of the patient. A valid living will is evidence of those preferences and should be followed by the surrogate.

21. Will a valid living will executed after the date of the signing of an otherwise valid POST revoke the POST?

Pursuant to the statutory mandate in Tennessee Code Annotated § 68-11-1804 a valid living will executed after a valid POST will revoke the POST only as to conflicting elements.