Tyler & Wilson, LLP5455 Wilshire Boulevard, Suite 1925
Los Angeles, CA 90036Tel: (323) 655-7180 Fax: (323) 655-7122
Email: [email protected]
Copyright © 2015 by Tyler & Wilson
Bioethics Mediation: Family Conflict and Difficult Health Care Decision Making
Southern California Mediation Association
2015 Fall Conference
Malibu, California
November 7, 2015
Presented by
Christine J. Wilson, RN, JD
Paul Schneider, MD, FACP
What Makes Bioethics Mediation Different?
Often “life and death” issues; not about money Mediator usually employed by or contracted
with the health care provider Mediation may be a repeat engagement
Mediator usually better informed about medical issues than patient and family
Usually there are multiple parties Physical setting not under mediator’s
control
What Makes Bioethics Mediation Different?
Confidentiality rules are different Often time pressure to reach a decision Playing field usually not level No written agreement to mediate Mediator often involved in follow up
The Bioethics Mediator
Must have an understanding of:Medical issuesBioethics principlesLegal parametersInstitutional policies and playersFinancial/insurance issues
Core Principles of Bioethics
Autonomy Beneficence Non-maleficence Justice
Note: Bioethics principles may be in conflict; no one principle has greater weight than others.
Autonomy Largely a Western idea that may not be shared by
other cultures Legally a surrogate decision maker must make a
decision in accordance with the patient’s instructions and known wishes
If wishes are unknown then must act in accordance with the patient’s best interest considering the patient’s values
Probate Code: § 4714 (surrogates)
§ 4684 (POA agents)
Surrogate Decision Maker Surrogate only makes health care decisions if patient lacks
capacity Capacity: Ability to understand the nature and consequences
of a decision and to communicate the decision. With health care this includes ability to understand benefits, risks and alternatives Probate Code § 4609
Patients presumed to have capacity Probate Code § 4657
Lack of capacity is determined by the primary physician unless otherwise specified in writing
Probate Code § 4658
Written Health Care Directives
Written document No particular form required (but must be
witnessed or notarized in accordance with the Probate Code)
May give instruction, appoint an agent or both Does not overcome patient’s objection to
proposed treatment
Probate Code § 4670 et. seq.
The Problem With Instructions
Exact situation may not have been anticipated
Understanding of medical interventions at the time documents signed may be minimal
May be ambiguous May not reflect current wishes
Beneficence/Non-Malefience
What is benefit? What is harm?
Examples: o Termination or continuation of pregnancy in
comatose mother not expect to recovero Feeding tube for Alzheimers Patiento Multiple chemotherapy treatments for minor
age 17 who no longer wishes to have it
Justice
Justice for patient/family? Justice for others?
Examples:o Priorities for organ transplanto Limited ICU bedso Ability to pay
Parties to MediationTreatment teamMay include physicians with different perspectives and need to work toward consensus position prior to mediation
PatientPerspective may differ from treatment team or from other interested parties
Interested PartiesMay or may not be health care agentChild/parentsChildren from prior marriage/new spouse
Role of the Bioethics Consultant or Committee
Consultant may or may not also be the mediator
Purpose of consultant or committee is to make recommendations to the treatment team
Important to define roles of consultant and/or mediator
Preparing for Mediation
Identify the parties Identify the decision makers
Is there a capacity issue?
Obtain medical background information May require research
Define the issue to be resolved
Note: This will involve information gathering from the treatment team before contact with the patient or family.
Mediation Preliminaries
Meeting or conversations with care team often required (all may not be able to attend meeting together)
Meet with patient or family Explain role Use active listening techniques
Note: Mediations do not always follow a set format; the mediator must often adjust to changing circumstances
Mediation Joint Session
Reiterate roles and goals Best to begin with patient or family
members one at a time without interruption Create a clear picture of who the patient is Refine the issues and interests
Structure of the Joint Session Introduction/Opening Statement
Emphasizing neutrality and objective to assist the parties Ground rules Confidentiality (differs from litigation mediation)
“Tell me about yourself (or your mother, sister, husband, etc.)”
Medical issues Patient or surrogate’s understanding Medical team explanations and facts
Identify issues, interests and priorities
To Caucus or not to Caucus? Rarely used once joint session begins May be useful if requested by patient or
family May increase distrust if requested by treatment
team Mediator may keep family issues not related
to clinical decisions confidential
Problem Solving Develop options Address legal and hospital/post acute provider policy
issues Would another provider be able to accommodate?
If no agreement reached, what then? Probate Code § 3200? Conservatorship? Involuntary transfer?
Note: Consequences determined by facility/legal counsel
Conclusion of Mediation
Documentation? Role of consultant vs role of mediator Ask about hospital policy before beginning work
Confirm agreements Mediator may be responsible for follow up
with all parties May need assistance from staff
such as social worker
Potential Fallout
Moral distress of health care team Patient or family dissatisfaction Inability of participants to have realistic
expectations Court involvement
Was the Mediation Successful?
All parties had an opportunity to be heard All parties treated with respect by the
mediator Patient/Family informed of options and
understand them The patient was central to the discussion Everyone’s concerns were fully expressed
Tyler & Wilson, LLP5455 Wilshire Boulevard, Suite 1925
Los Angeles, CA 90036Tel: (323) 655-7180 Fax: (323) 655-7122
Email: [email protected]
Copyright © 2015 by Tyler & Wilson
Thank you for your time and attention.
Christine J. Wilson, RN, JD
Paul Schneider, MD, FACP
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