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POLST - Need for Statutory Immunity

Posted Jul 21 2013 4:37pm
Many question the need for statutory immunity for following the orders in a POLST.  They argue that, through clinical consensus, clinicians can get the same thing by establishing POLST as the standard of care.  But as debates in Washington state , this year, illustrated, this is often not perceived as sufficient.  

A particularly eloquent explanation appears in the concurring opinion in ECHR case of Ternovszky v. Hungary  The Court found Hungary in violation of the Convention for failing to clarify the legal status of midwives, thus infringing women's right to a home birth.    
[W]e find it necessary to clarify why this right to respect for parental choice necessitates a minimum of positive regulation. Such choice would have been a liberty in the 19th century. As long as there is no State interference with the freedom, there seems to be no problem.
But the background assumption of classical liberalism does not necessarily work in the contemporary welfare State, especially in the medical environment. In this welfare system practically everything is regulated; regulation is the default, and only what is regulated is considered safe and acceptable. Suddenly, in the absence of positive regulation, what was a matter of uncontested private choice becomes unusual and uncertain. In a very densely regulated world some disadvantages emerge for freedoms without regulatory endorsement. . . .
Where regulation is the default, as in the medical context, lack of enabling regulation may be detrimental to the exercise of the right, and traditional non-interference will not be sufficient. This may be one of the many unpleasant consequences of living in an overregulated world. It is here that an affirmation of a liberty in positive law is warranted. . . .
[A] freedom may necessitate a positive regulatory environment which will produce the legal certainty providing the right to choose with effectiveness. Without such legal certainty there is fear and secrecy . . . .
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