Bioethics Mediation: Family Conflict and Difficult Health Care Decision Making

1. 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

2. 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’scontrol

3. 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

4. The Bioethics Mediator Must have an understanding of: • Medical issues • Bioethics principles • Legal parameters • Institutional policies and players • Financial/insurance issues

5. Core Principles of Bioethics • Autonomy • Beneficence • Non-maleficence • Justice Note: Bioethics principles may be in conflict; no one principle has greater weight than others.

6. 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)

7. 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

8. 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.

9. 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

10. Beneficence/Non-Malefience • What is benefit? • What is harm? Examples: • Termination or continuation of pregnancy in comatose mother not expect to recover • Feeding tube for Alzheimers Patient • Multiple chemotherapy treatments for minor age 17 who no longer wishes to have it

11. Justice • Justice for patient/family? • Justice for others? Examples: • Priorities for organ transplant • Limited ICU beds • Ability to pay

12. Parties to Mediation Treatment team • May include physicians with different perspectives and need to work toward consensus position prior to mediation Patient • Perspective may differ from treatment team or from other interested parties Interested Parties • May or may not be health care agent • Child/parents • Children from prior marriage/new spouse

13. 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

14. 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.

15. 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

16. 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

17. 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

18. 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

19. 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

20. 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

21. Potential Fallout • Moral distress of health care team • Patient or family dissatisfaction • Inability of participants to have realistic expectations • Court involvement

22. 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

23. Thank you for your time and attention. Christine J. Wilson, RN, JD Paul Schneider, MD, FACP