The American Journal of Bioethics

Raabe, P. B. 2013. Philosophy’s role in counseling and psychotherapy. Lanham, MD: Jason Aronson. Stanley, M. J. C., and N. J. Matchett. 2014. Understanding how student nurses experience morally distressing situations: Caring for

patients with different values and beliefs in the clinical environment. Journal of Nursing Education and Practice 4(10): 133. doi:10.5430/jnep.v4n10p133

Facilitated Discussion: Good and Good for You Stephen Latham, Yale Interdisciplinary Center for Bioethics I entirely agree with Autumn Fiester (2015) that in clinical ethics cases rooted in disagreements among or between stakeholders, clinical ethics consultation ought to aim not primarily at recommendation making but at facilitation of communication between the disputing parties. The mediator’s core skill—that of encouraging parties to focus not on their short-term positions but on their broader interests— is of great value in such circumstances, both because it can help parties discover and articulate the interests they hold in common (and thus help prevent them from mischaracterizing and misunderstanding one another’s motives), and because it can help parties understand that their bottomline positional differences flow from reasonable convictions, sincerely held. There is no doubt that every clinical ethics consultation has to issue in resolution. The dialysis must be done or not; the vent comes off or it does not. We have to decide, and then do, something. But Fiester is right to point out that a clinical ethics consultation procedure that is designed to aim merely at resolution, without paying adequate attention to the process by which resolution is reached, is seriously misguided. This is importantly true even where adequate attention to process fails to result in agreement on the proper resolution. As Fiester briefly notes, “closure” can flow not only from agreement, but also from the parties’ sense that even if they do not, finally, agree on the same course of action, they have spoken and been heard: that they have made their reasoning understandable to one another. Indeed, on some accounts, the whole of morality flows from our desire to make our actions understandable to others, via the articulation of rules governing our actions that others cannot reasonably reject (I have in mind Scanlon 2000). “Closure” may be not just a psychological, but also a moral, concept. But most of what I want to say is rather more lowbrow, and centers not on ethics but on institutional interests. The fact is that any deliberative procedure that results either in moral distress or in the outbreak of “moral emotions” is a hospital administrator’s nightmare. It is a recipe for

employee dissatisfaction, reputational damage, and even litigation. From a purely prudential point of view, these things are costly—in terms of time, of money, of effort, of attention—and for that reason alone, even if one is not particularly concerned with the psychological goods of “closure,” they are to be avoided. Many clinical ethics consultations, including the case Fiester outlines, are “medical futility” problems: cases in which family members are demanding care that the treatment team deems inappropriate. Generally, the team’s view that the care is inappropriate is not straightforwardly objective or scientific (“No point giving an enema for an earache”), but is value laden: “This procedure would be painful and stressful for the patient, and stands very little chance of restoring her health” or “This burdensome intervention would relieve the patient’s condition, but would not restore him to any decent quality of life.” Families may straightforwardly reject the value judgments: “Even one minute of additional life is worth any burden.” Or they may feel guilty about being complicit with a medical team that seeks their permission to “give up” on their loved one. Or they may feel that, as a religious matter, they cannot decide when their loved one should die, because that decision belongs to God. Or they may feel that, given the very real history of racism and classism in American medicine, it is their job always to demand everything from a medical team that, they are convinced, is only too willing to give up on their loved one. For whatever reason, such “futility” disputes are the regular fare of clinical ethics consultations. Many facilities have developed “futility” or “inappropriate care” policies to respond to such conflicts (Mercurio 2005). These policies have the general shape of the “due process” futility policy adopted by the American Medical Association Council on Ethical and Judicial Affairs (1997), and of the well-known “Texas Futility Statute” (Ch. 166.046 Texas Health and Safety Code; for an argument in favor of the Texas “due process” approach over state-law approaches that attempt to define medical futility substantively, see Pope 2007). Roughly speaking,

Address correspondence to Stephen Latham, Yale Interdisciplinary Center for Bioethics, PO Box 208293, New Haven, CT 06520-8293, USA. E-mail: [email protected]

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Clinical Ethics Consultation and Closure

such policies decline to define what sorts of care are “futile” or “inappropriate,” but instead specify procedures by which these disputes should be resolved. Commonly, they call, first, for an ethics consultation at which the parties outline their positions. If agreement between the parties is not reached, the medical team may then be required to seek some additional approval for not supplying the disputed treatment (e.g., a vote of the full ethics committee, or approval by a hospital or medical staff administrator). The family is then given a chance to attempt to locate some other medical team willing to accept transfer of the patient for purposes of supplying the disputed care. If no such transfer can be arranged within a given time, the policy permits the disputed care to be withdrawn (or not supplied). Without delving into the many controversies surrounding such policies (e.g., whether they supply legally sufficient process to aggrieved families), it can certainly be observed that they are designed to favor the view of the medical team, since, in the end, they default to implementation of the team’s view when conflict persists. Their architecture is, moreover, arguably self-interested rather than ethical. If the medical team and the ethics committee and a third-party hospital administrator all agree that the disputed treatment is inappropriate, why on earth should the hospital policy permit referral of the case to some third party who may be tempted by reimbursement to provide presumptively inappropriate care? There is a possible ethics answer: It may be that the opportunity for referral is an ethically required check, designed to verify that there isn’t a locally pervasive but incorrect worldview at the hospital. But in fact I think that the referral window is merely self-interested window dressing. My guess is that, for prudential reasons of their own, very few facilities will ever take a referral of a patient for a course of treatment that has been disapproved at a competitor institution, on behalf of a demonstrably litigious family. (Those few will likely have religious motivations, such as, differing views on the withdrawal of artificial nutrition and hydration, or on brain death.) The referral window, rather than being designed to provide an ethical check against local bias, is instead cynically designed to provide predictable confirmation of the treatment team’s view. “Look,” it permits hospital counsel to say to the judge, “it wasn’t just people at our hospital who agreed on this. The family couldn’t find anyone who’d do it.” And this argument is sufficiently persuasive that few plaintiffs’ lawyers, anticipating it, will be willing to take on the case of any family whose loved one has been “given up on” pursuant to a due-process futility policy. But—and here’s my self-interested argument for Fiester’s position—such disputes needn’t ever get this far. If the required initial clinical ethic consultation gives the family the opportunity to articulate its position, and gives family members a real chance to hear and understand the

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medical team’s reasons for disagreeing with them—if, in other words, the futility policy’s initial requirement of an ethics consult pays adequate attention to procedure rather than focusing only on recommendation, if it involves skillfully facilitated discussion between the parties—then it’s more likely (not guaranteed, but more likely) to result in the family’s not pressing its position to the policy’s limit. Any glimmer of understanding of the medical team’s position, any sense that their own interests have been respectfully heard, and any sense of common interests between themselves and the medical team (even if those common interests don’t issue in common recommendations), is apt to defuse the family members’ desire to press forward with transfer efforts and litigation. And defusing that desire works to the practical advantage of the hospital. It saves money, staff time, bad press, and heartache. Dr. Fiester is concerned about closure, both for the family and for medical team. In the latter portion of this commentary I’ve focused on the hospital’s interests in avoiding bad publicity and litigation. I’ve transformed her generous focus on the psychological well-being of both disputing parties into a self-interested argument for one of those parties. I have therefore cheapened her argument. But as I noted earlier, I’m persuaded that her argument is valid, both in psychological and in broadly moral terms. If, in order to sell a noble and decent approach to dispute resolution to hospitals and health-systems, it is necessary to point out its probable bottom-line advantages to those institutions, I’m willing to do that sales job. I sincerely believe both that a process-oriented mediation approach to clinical ethics consultation is psychologically and ethically better for both parties, and that it is predictably better for the hospital’s bottom line. Lucky us, when self-interest commends virtue. &

REFERENCES American Medical Association Council on Ethical and Judicial Affairs. 1997. AMA Code of Medical Ethics, Opinion 2.037, Medical futility in end-of-life care. Available at http://www.ama-assn. org/ama/pub/physician-resources/medical-ethics/code-medicalethics/ Fiester, A. 2015. Neglected ends: Clinical ethics consultation and the prospects for closure. American Journal of Bioethics 15(1): 29–36. Mercurio, M. 2005. The conscientious practice policy: A futility policy for acute care hospitals. Connecticut Medicine 69(7): 417–419. Pope, T. M. 2007. Medical futility statutes: No safe harbor to unilaterally refuse life-sustaining treatment. Tennessee Law Review 75(1): 1–81. Scanlon, T. 2000. What we owe to each other. Cambridge, MA: Belknap Press of Harvard University Press.

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