Tyler & Wilson, LLP5455 Wilshire Boulevard, Suite 1925

Los Angeles, CA 90036Tel: (323) 655-7180 Fax: (323) 655-7122

Email: cjw@tyler-law.com

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: cjw@tyler-law.com

Copyright © 2015 by Tyler & Wilson

Thank you for your time and attention.

Christine J. Wilson, RN, JD

Paul Schneider, MD, FACP