The American Journal of Bioethics
What “the Straw Man” Teaches Us, Or, Finding Wisdom Between the Horns of a False Dilemma About Ethics Consultation Methodology Jeffrey P. Spike, McGovern Center for Humanities and Ethics This target article by Fiester (2015) has two intertwined theses, one quite valid and useful, and the other one, unfortunately, unnecessarily divisive and based on a totally mistaken premise. We do not need to cleave ethicists into the good guys (or women) who believe in dialogue and the bad guys who believe in giving hasty and cold-hearted recommendations. Years ago a similar complaint was couched as the accusation that bad ethicists “give orders”; that mistaken accusation has been mostly disabused. The final product of an ethics consult is a recommendation, just like any other consultation. But this target article trades on just as baseless a stereotype. The sooner we get over this false dichotomy, and stop creating straw men ethicists who do not listen, or do not engage in dialogue, the better. And if the mediation-besotted will make sure that none of their practitioners try to fit every consult into a 1-hour conversation to “tell them about their mother,” then the experienced clinical ethicists should agree in turn to make sure that no one thinks one can do a consult without spending time listening attentively to all of the stakeholders. Once the ethics consultation field ends this petty internal disagreement based on unfounded accusations, there is much of value to contemplate in Fiester’s article. Her most important point is not about these two supposedly different models of ethics consultation service (ECS), but about the endpoint of a consult. The endpoint of a consult, whether one is using mediation conversation or facilitated dialogue (which in reality are probably not very different), is not simply placing a note in the chart. There should always be some sort of follow-up. Just what is the right endpoint, though, is an important and unresolved question, and the question Fiester should have focused on. MEDIATION IS NO PANACEA (THE FALSE DICHOTOMY) Fiester seems naive in thinking that a good dialogue will prevent any moral distress or emotional residue. The loss
of a loved one will always leave a person with grief for months, years, or the rest of his or her life. That is a part of the human condition, the subject of many existentialist treatises. Ethicists cannot claim to prevent that, or we will have defined ourselves into guaranteed failure. Nor can we claim to all be trained grief counselors or pastoral care chaplains, only more effective. Neither ethicists nor mediators should claim to have such magical powers. We all hope that our involvement helps to mitigate the emotional stress of the patient and family, but that is a hoped-for side effect of sound decision making, not the primary goal. One reason many experienced ethicists resist the suggestion that mediation is a valid method for ethics consultation is the fear that it implies if you put everyone in a room for an hour, you can emerge with a mutual understanding. Or that in many cases one simply needs to split the difference between two people who disagree, like splitting the accumulated wealth of a married couple during divorce mediation. There often is no pot of something that can be divided in half. And often there are a number of different issues, and to give to each its due would take far longer than 1 hour. Here is a simple example. A physician colleague who has participated in hundreds of ethics consults told me he always makes sure he is free for 2 hours when he meets with a family as part of an ethics consult, because 1 hour is often just not enough. Similarly, I never assume one meeting will suffice. In many cases all stakeholders cannot make the meeting, no matter what time I choose. And some stakeholders refuse to talk to others, or refuse to let others talk. So I have learned from experience that sometimes I must talk to two different groups of family members. Mediation might work best with the simple cases involving a difference of opinion between a few people concerning only one issue. All individuals are required to attend “the meeting,” or else forfeit their right to input into the process. And, as that singular noun implies, there will usually only be one meeting. Nice and quick, but too simple to do justice to the complex issues and the numerous family members involved in many ethics consults.
Address correspondence to Jeffrey P. Spike, PhD, Director, Campus-wide Ethics Program, Rabbi Samuel E. Karff Professor, McGovern Center for Humanities and Ethics, 6431 Fannin, JJL Suite 410, Houston, TX 77030, USA. E-mail: [email protected]
48 ajob
January, Volume 15, Number 1, 2015
Clinical Ethics Consultation and Closure
However, there aren’t that many simple cases. If you are thorough, most ethics cases will have some hidden surprises that will only be discovered after you get involved. That is why it is a mistake to try to resolve a case quickly. If you cut corners to resolve cases quickly, such as with just a single meeting, it will eventually lead to a recommendation where an important stakeholder was left out, an unethical result. I believe Fiester would agree with me on that. My ideal model would always include the option, when called for, of multiple one-on-one meetings. This gives each stakeholder up to an hour to talk, rather than waiting to get their 2 minutes of say. Or, one might meet with some stakeholders first, while awaiting the arrival of the son from California. It may take 5–8 hours of work on the part of the ethicist, spread out over a few days. Any model that recognizes these realities is acceptable. Perhaps if we call the facilitated discussion model the “legalistic time-limited mediation model where all discussion is limited to one hour” it would be clear why some ethicists fail to see mediation as a panacea. A second concern some ethicists might have about mediation is that it is primarily borrowed from a legal model. And (perhaps related), some of the institutions that promote mediation never had an active ethics service. There may be a pattern where the legal or risk management office at that institution did not support the development of an ethics service (and, in some instances, may have even opposed it behind the scenes). But mediation is more of a legal practice. So perhaps lawyers are more comfortable with it than with the notion of trying to find an ethical solution. If the primary goal is to prevent lawsuits, that might even make sense. CONCLUSIONS: COMMON GROUND (FINDING THE WISDOM BETWEEN THE HORNS OF THE DILEMMA) Perhaps there are some things that we can all agree on, no matter what words you use to describe your method. First, to do something ethically means no shortcuts. Rather than make it easier, it might make the task harder, but more complete and fair. Mediation would agree, I hope, and would like to describe itself as ethics mediation. If it tries to change the name of its method, and leaves out the word “ethics” (e.g., calling itself conflict resolution or conflict mediation), I would be worried that there is an ulterior motive in avoiding the word “ethics,” as if ethics makes the institution uncomfortable. Second, I often provide a copy of the ethics consult note to family members. When I don’t, thinking it may be a potential burden to them, I look to see who is visiting the patient when I place the note in the chart, and talk with
January, Volume 15, Number 1, 2015
them. If using an electronic medical record, then I always go back to the room to talk with any family members who are present. I also advise always telling the patient our recommendation, even for patients in a coma; it enhances the sense that there are no secrets. I have had some cases where a patient who was only occasionally conscious was able to hear what I said and nod approvingly. I would hope that mediators also share their recommendations with the patient if the patient wasn’t involved in the family meeting. Third, we might all endorse a conclusion that said we should prefer whichever model (assuming there is a serious difference between them) better gives the family members a chance to be heard by the caregivers, and process their feelings, which may be the “time-limited” one-time meeting or may be a sequential process of one-on-one meetings, or some combination of the two. Fourth, moral distress is an important issue, and it is important for doctors as well as nurses. To contribute to the psychological sense of well-being for the health care providers is a valuable contribution for the ethics service. It will also help to assure the ECS gets called in appropriate cases. Fifth, we all must recognize the importance of communication skills. If these skills are routinely included in meditation training, that would make it beneficial. Clinical ethicists come from many backgrounds, some of which may be quite weak in this area, and that can include medicine, law, and philosophy—the three core disciplines. In the past we all learned many essential communication skills on the job, or from fields that teach them explicitly, such as pastoral care, counseling, psychology, and social work. But any good ECS training program must include them if people want their program to graduate effective consultants. Though by no means exclusive to mediation, it may be that some people who tout mediation do so because it was the source of their personal introduction to good communication skills. In conclusion, readers of this target article can come away with either of two lessons, one very valuable, and one quite pointless. There aren’t two radically different methodological models for ethics consultation. But all models of the consult process ought to give more attention to how their intervention might lessen the moral distress and negative emotional sequelae of ethics cases, on both the family and the members of the team. &
REFERENCE Fiester, A. 2015. Neglected ends: Clinical ethics consutlaiton and the prospects for closure. American Journal of Bioethics 15(1): 29–36.
ajob 49
Copyright of American Journal of Bioethics is the property of Routledge and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use.
What “the Straw Man” Teaches Us, Or, Finding Wisdom Between the Horns of a False Dilemma About Ethics Consultation Methodology Jeffrey P. Spike, McGovern Center for Humanities and Ethics This target article by Fiester (2015) has two intertwined theses, one quite valid and useful, and the other one, unfortunately, unnecessarily divisive and based on a totally mistaken premise. We do not need to cleave ethicists into the good guys (or women) who believe in dialogue and the bad guys who believe in giving hasty and cold-hearted recommendations. Years ago a similar complaint was couched as the accusation that bad ethicists “give orders”; that mistaken accusation has been mostly disabused. The final product of an ethics consult is a recommendation, just like any other consultation. But this target article trades on just as baseless a stereotype. The sooner we get over this false dichotomy, and stop creating straw men ethicists who do not listen, or do not engage in dialogue, the better. And if the mediation-besotted will make sure that none of their practitioners try to fit every consult into a 1-hour conversation to “tell them about their mother,” then the experienced clinical ethicists should agree in turn to make sure that no one thinks one can do a consult without spending time listening attentively to all of the stakeholders. Once the ethics consultation field ends this petty internal disagreement based on unfounded accusations, there is much of value to contemplate in Fiester’s article. Her most important point is not about these two supposedly different models of ethics consultation service (ECS), but about the endpoint of a consult. The endpoint of a consult, whether one is using mediation conversation or facilitated dialogue (which in reality are probably not very different), is not simply placing a note in the chart. There should always be some sort of follow-up. Just what is the right endpoint, though, is an important and unresolved question, and the question Fiester should have focused on. MEDIATION IS NO PANACEA (THE FALSE DICHOTOMY) Fiester seems naive in thinking that a good dialogue will prevent any moral distress or emotional residue. The loss
of a loved one will always leave a person with grief for months, years, or the rest of his or her life. That is a part of the human condition, the subject of many existentialist treatises. Ethicists cannot claim to prevent that, or we will have defined ourselves into guaranteed failure. Nor can we claim to all be trained grief counselors or pastoral care chaplains, only more effective. Neither ethicists nor mediators should claim to have such magical powers. We all hope that our involvement helps to mitigate the emotional stress of the patient and family, but that is a hoped-for side effect of sound decision making, not the primary goal. One reason many experienced ethicists resist the suggestion that mediation is a valid method for ethics consultation is the fear that it implies if you put everyone in a room for an hour, you can emerge with a mutual understanding. Or that in many cases one simply needs to split the difference between two people who disagree, like splitting the accumulated wealth of a married couple during divorce mediation. There often is no pot of something that can be divided in half. And often there are a number of different issues, and to give to each its due would take far longer than 1 hour. Here is a simple example. A physician colleague who has participated in hundreds of ethics consults told me he always makes sure he is free for 2 hours when he meets with a family as part of an ethics consult, because 1 hour is often just not enough. Similarly, I never assume one meeting will suffice. In many cases all stakeholders cannot make the meeting, no matter what time I choose. And some stakeholders refuse to talk to others, or refuse to let others talk. So I have learned from experience that sometimes I must talk to two different groups of family members. Mediation might work best with the simple cases involving a difference of opinion between a few people concerning only one issue. All individuals are required to attend “the meeting,” or else forfeit their right to input into the process. And, as that singular noun implies, there will usually only be one meeting. Nice and quick, but too simple to do justice to the complex issues and the numerous family members involved in many ethics consults.
Address correspondence to Jeffrey P. Spike, PhD, Director, Campus-wide Ethics Program, Rabbi Samuel E. Karff Professor, McGovern Center for Humanities and Ethics, 6431 Fannin, JJL Suite 410, Houston, TX 77030, USA. E-mail: [email protected]
48 ajob
January, Volume 15, Number 1, 2015
Clinical Ethics Consultation and Closure
However, there aren’t that many simple cases. If you are thorough, most ethics cases will have some hidden surprises that will only be discovered after you get involved. That is why it is a mistake to try to resolve a case quickly. If you cut corners to resolve cases quickly, such as with just a single meeting, it will eventually lead to a recommendation where an important stakeholder was left out, an unethical result. I believe Fiester would agree with me on that. My ideal model would always include the option, when called for, of multiple one-on-one meetings. This gives each stakeholder up to an hour to talk, rather than waiting to get their 2 minutes of say. Or, one might meet with some stakeholders first, while awaiting the arrival of the son from California. It may take 5–8 hours of work on the part of the ethicist, spread out over a few days. Any model that recognizes these realities is acceptable. Perhaps if we call the facilitated discussion model the “legalistic time-limited mediation model where all discussion is limited to one hour” it would be clear why some ethicists fail to see mediation as a panacea. A second concern some ethicists might have about mediation is that it is primarily borrowed from a legal model. And (perhaps related), some of the institutions that promote mediation never had an active ethics service. There may be a pattern where the legal or risk management office at that institution did not support the development of an ethics service (and, in some instances, may have even opposed it behind the scenes). But mediation is more of a legal practice. So perhaps lawyers are more comfortable with it than with the notion of trying to find an ethical solution. If the primary goal is to prevent lawsuits, that might even make sense. CONCLUSIONS: COMMON GROUND (FINDING THE WISDOM BETWEEN THE HORNS OF THE DILEMMA) Perhaps there are some things that we can all agree on, no matter what words you use to describe your method. First, to do something ethically means no shortcuts. Rather than make it easier, it might make the task harder, but more complete and fair. Mediation would agree, I hope, and would like to describe itself as ethics mediation. If it tries to change the name of its method, and leaves out the word “ethics” (e.g., calling itself conflict resolution or conflict mediation), I would be worried that there is an ulterior motive in avoiding the word “ethics,” as if ethics makes the institution uncomfortable. Second, I often provide a copy of the ethics consult note to family members. When I don’t, thinking it may be a potential burden to them, I look to see who is visiting the patient when I place the note in the chart, and talk with
January, Volume 15, Number 1, 2015
them. If using an electronic medical record, then I always go back to the room to talk with any family members who are present. I also advise always telling the patient our recommendation, even for patients in a coma; it enhances the sense that there are no secrets. I have had some cases where a patient who was only occasionally conscious was able to hear what I said and nod approvingly. I would hope that mediators also share their recommendations with the patient if the patient wasn’t involved in the family meeting. Third, we might all endorse a conclusion that said we should prefer whichever model (assuming there is a serious difference between them) better gives the family members a chance to be heard by the caregivers, and process their feelings, which may be the “time-limited” one-time meeting or may be a sequential process of one-on-one meetings, or some combination of the two. Fourth, moral distress is an important issue, and it is important for doctors as well as nurses. To contribute to the psychological sense of well-being for the health care providers is a valuable contribution for the ethics service. It will also help to assure the ECS gets called in appropriate cases. Fifth, we all must recognize the importance of communication skills. If these skills are routinely included in meditation training, that would make it beneficial. Clinical ethicists come from many backgrounds, some of which may be quite weak in this area, and that can include medicine, law, and philosophy—the three core disciplines. In the past we all learned many essential communication skills on the job, or from fields that teach them explicitly, such as pastoral care, counseling, psychology, and social work. But any good ECS training program must include them if people want their program to graduate effective consultants. Though by no means exclusive to mediation, it may be that some people who tout mediation do so because it was the source of their personal introduction to good communication skills. In conclusion, readers of this target article can come away with either of two lessons, one very valuable, and one quite pointless. There aren’t two radically different methodological models for ethics consultation. But all models of the consult process ought to give more attention to how their intervention might lessen the moral distress and negative emotional sequelae of ethics cases, on both the family and the members of the team. &
REFERENCE Fiester, A. 2015. Neglected ends: Clinical ethics consutlaiton and the prospects for closure. American Journal of Bioethics 15(1): 29–36.
ajob 49
Copyright of American Journal of Bioethics is the property of Routledge and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use.
