Working Toward Peace: The Role of Clinical Ethics in Conflict Resolution
by Robert D. Orr, MD, CM
Today's Christian Doctor - Winter 2002
Ethics consultants or committees are often called into situations of conflict. What is their role in conflict resolution? What process should they use? What standards should they apply? The methods of alternative dispute resolution [negotiation, mediation and arbitration] provide a useful model for analysis of procedure, though they may not adequately describe all ethics consultations.1 Boundaries of acceptable standards may be gleaned from the precepts of medical ethics as well as from statutory and case law. In addition, the believer may obtain guidance from Scripture and prayer.
I hate conflict. I like people to get along. Of course, “getting along” does not always mean being in agreement. It is possible to disagree with someone, even to disagree strongly, and still get along. Most discussions of infant baptism vs. believer baptism, or election vs. free-will, are civil and would be characterized more as disagreements rather than conflicts. In the practice of medicine, there are many disagreements that would not qualify as conflicts. Most often we resolve or live with these disagreements.
However, when disagreement escalates to a level that could be called conflict, I get uncomfortable. Then why, you might ask, do I spend the majority of my time doing ethics consultations? A valid question.
The majority of ethics consultations are requested for assistance in the resolution of conflict about further treatment. The conflict may be between a professional caregiver and a patient or surrogate, between two professionals, between a patient and family or between two or more family members. Since conflict is so prominent in ethics consultations, what is the role of the consultant or ethics committee in resolution of that conflict? Some have proposed that the role should be to make a decision about which party is morally correct. Some expect that a Christian acting as an ethics consultant or serving on an ethics committee will make different recommendations because of his or her beliefs. The basic question, then, is whether ethics consultation is about process or substance.
Alternative Dispute Resolution: Negotiation, Mediation or Arbitration
The role of a third party in conflict resolution has been thoroughly discussed in regard to business and judicial matters. In fact, alternative dispute resolution (ADR) is an entire area of study that has emerged in an effort to resolve conflicts without having to go to court. ADR has been used to great benefit in business and law, and in recent years has been used to a growing extent in the business management of medicine. Not until recently, however, has ADR been suggested to assist with conflict resolution at the bedside. Traditionally, ADR includes three different approaches: negotiation, mediation and arbitration. The third party whose job is to help resolve the conflict plays a different role in each of these approaches.
In negotiation, the third party enters the conflict at the invitation of one of the parties with the express purpose of advancing that party’s cause or position. The negotiator is an advocate and is clearly partisan. The goal is to gain a settlement of the disagreement that is favorable to the person issuing the invitation.
Mediation is the use of a neutral third party to help those in conflict find and agree upon an acceptable resolution by providing a process for reaching settlement. The mediator is a non-partisan catalyst who facilitates discussion so that the two parties can reach their own resolution. He or she can pose questions, clarify answers, reframe issues, express empathy or look for creative options for resolution, while assiduously avoiding “taking sides.”
Arbitration is a method of conflict resolution that is designed as a modified tort system. It remains an adversarial endeavor but avoids the time and expense of litigation. An arbitrator is invited by both parties to act as judge and is expected to render an opinion about which of the disagreeing parties should prevail. He or she begins the process unbiased in order to reach a conclusion based on the merits of the case.
These three classical roles in ADR differ in at least two ways. First, they differ in the matter of partiality vs. impartiality. The negotiator enters the process partisan and is expected to maintain that position throughout. Mediation begins with the third party impartial and he or she is expected to remain both fair and unbiased. In arbitration, the third party is impartial at the outset, but is expected to make a judgment about which side will prevail.
Second, the three methods differ in regard to belief in and adherence to standards. The arbitrator is clearly asked to evaluate the situation and render a judgment based on some agreed-upon standards about the substance of the issue. The mediator is expected to suppress personal opinion and facilitate the process, while insisting upon standards of process such as giving each party an equal hearing, preventing interruptions and steering the two parties to an ethically responsible agreement. The negotiator, on the other hand, is able to apply personal standards about whether to agree to represent the interests of one party, but after entering that agreement is expected to use all measures to accomplish their mutual goal.
Is a believer able to fulfill each of these three roles in conflict resolution? A Christian should be able to act as negotiator as long as he or she is invited to represent a position that is not contrary to basic Christian beliefs. A believer should have no difficulty fulfilling the role of arbitrator.
Some might even expect a Christian to articulate biblical standards as he or she makes decisions and recommendations in arbitration. However, some believers might feel uncomfortable serving as a neutral mediator in a conflict that involves a moral issue.
Ethics Consults in the ADR Model
Thus far, we have not determined whether the ADR model is an adequate description of the function of an ethics consultant or ethics committee. Let us examine some examples of resolution of conflict in clinical ethics to see if these three classical roles of ADR adequately describe what a consultant or ethics committee does.
CASE 1: The parents of a 3-year-old girl and their Orthodox Jewish rabbi request dialysis for the child when she develops chronic renal failure. Her physicians believe it is inappropriate to dialyze her because she has been in a permanent vegetative state since birth. At the request of her physicians, and based on an emerging professional standard in the medical literature, the ethics consultant was able to convince the parents and rabbi that chronic dialysis was outside the standard of care for a patient in a permanent vegetative state. He acted as a negotiator for the professional team.
CASE 2: When a 79-year-old man with Parkinson’s dementia developed a life-threatening cardiac arrhythmia from digitalis toxicity, the consulting cardiologist recommended a permanent pacemaker after the patient did not improve with the use of temporary pacing. His wife (and Durable Power of Attorney for Healthcare) declined the permanent device and also requested that the temporary pacer be removed. The cardiologist was very reluctant, so the patient’s wife asked the ethics consultant to help her accomplish what she understood to be her husband’s wishes. The consultant was able to show the physician that there was no difference between withdrawing therapy already in use and not starting it in the first place, thus acting as negotiator for the patient’s surrogate.
CASE 3: An ethics consultant was asked to help resolve a dispute between a teenager’s mother and a pediatric surgeon who was reluctant to operate again on the girl, who had sever congenital GI dysmotility. Her mother not only insisted on the surgery, she also refused the recommended psychiatric consultation. The ethics consultant acted as a mediator and was able to bring the two parties to agreement of (a) getting a second surgical opinion, and (b) obtaining a psychiatric consult, which he reframed as a routine measure in a patient with chronic pain.
CASE 4: A 44-year-old man with end-stage renal disease and multiple complications was critically ill with sepsis. One assertive faction in his family wanted to continue aggressive treatment, and an equally vocal faction wanted to stop both dialysis and other life support. An ethics consultant was called in to decide which faction had the moral authority to make decisions for this man. In this situation, he acted as an arbitrator.
Ethics Consults That Don’t Fit or Follow the ADR Model
Sometimes, however, the role of the ethics consultant or committee is not as clear. In still other situation, assistance is requested expecting one role (e.g. negotiation), while the consultant actually performs a different one (e.g. arbitration).
CASE 5: A Jehovah’s Witness woman asked an ethics consultant to stop physicians from giving life-saving blood transfusions to her adolescent daughter who was in multi-organ-system failure following a suicidal drug overdose. The consultant evaluated the situation and determined that the girl had not made an adult decision to adopt the religious beliefs of her parents. He therefore supported the physician’s request for a court order to allow transfusion. He was asked to negotiate, but he acted as an arbitrator.
CASE 6: A 48-year-old woman with advanced cervical cancer agreed to a short course of palliative radiation to her lung metastases in an effort to shrink the tumors and get her off the ventilator. When this had been unsuccessful after a three-week trial, her husband requested that her life-support be stopped. Her oncologist was reluctant, based on an ambiguous response the patient had made to his inquiry a few days earlier, just before she slipped into unconsciousness. Her husband asked the ethics consultant to support his request (negotiate), but by clarifying the ambiguity, he was able to mediate an agreement between the two parties who had formerly been in conflict.
CASE 7: A 78-year-old woman from a different culture developed pneumonia and respiratory failure. When her adult respiratory distress syndrome failed to respond to three weeks of aggressive treatment, her physician recommended withdrawal of her vent rather than tracheostomy and long-term support. Her family insisted that he “do everything.” As a result, the physician asked for an ethics consultant to determine if this was the right thing to do, i.e. he wanted arbitration. In a meeting with family and physician, cultural and religious beliefs of the patient were elicited from the family, helping the physician understand that it was not inappropriate to continue therapy in this case. The consultant acted here as a mediator rather than as an arbitrator.
What is the Role of Clinical Ethics In Conflict Resolution?
Some maintain that the ethics consultant or committee should remain neutral and merely use mediation in efforts to resolve conflict. I believe, however, that the consultant or committee must be able to articulate accepted standards of medical ethics and make recommendations consistent with those standards, regardless of the role that might be expected of them. In this regard I agree with Fowler, who wrote that the clinical ethicist, rather than taking a neutral stance, should “analyze the case, explore acceptable alternatives, and exclude wrong otions.”2 Thus, the recommendations written in an ethics consultation will often use the phrase “ethically permissible”, e.g. “It would be ethically permissible to either continue aggressive life-support measures or to change treatment goals to comfort care. Her clinicians should be guided by an understanding of the patient’s specific wishes and/or presumed values.”
An understanding of the negotiation-mediation-arbitration models of alternative dispute resolution is a useful pedagogical tool in helping consultants and ethics committees to appreciate the several roles they may play. It is less useful, however, when applied at the bedside. Sometimes the requestor does not fully appreciate what role he or she is requesting. Sometimes the consultant changes roles during the consultation. Sometimes none of the three classical roles of ADR fit the situation. Therefore these three roles may not adequately define what a consultant or ethics committee actually does in the process of conflict resolution.
Process and Substance
How is the ethics consultant or committee to cope with, work through or resolve conflict? There are important procedural matters such as confidentiality, surrogacy, substituted judgment, civility, etc. For the believer, a good starting point would be to recall the fruit of the Spirit (Galatians 4:22-23). Certainly conflict would be less painful if each individual were to demonstrate love, joy, peace, patience, kindness, goodness, faithfulness, gentleness and self-control. But not all parties in a conflict may exhibit or even possess these attributes. Rather than trying to win for the sake of winning, rather than judging the other party to be less worthy, the believer engaged in conflict is to “Do nothing out of selfish ambition or vain conceit, but in humility consider others better than yourselves” (Philippians 2:3). Not infrequently such an attitude or approach – mere procedural issues – will convince others to seriously consider the clinical position you espouse.
But over and above matters of process, how does the consultant or ethics committee involved in conflict cope with matters of substance? This is where Fowler’s admonition comes in. We should “explore acceptable alternatives, and exclude wrong options.”
There are some rules, principles and concepts that have gained sufficient precedent in clinical ethics that they can be considered “wrong options,” which should be opposed by the ethics committee or consultant. Examples might include a request to impose treatment over the objection of an informed adult patient who has decision-making capacity, or a parental request to forgo effective, life-saving treatment for a child. In addition, some matters of clinical conflict have been settled in court (case law) or by legislative bodies (statutory law). When wrong options are clearly defined, we need to stand up and say, “I’m sorry, but that is wrong. You can’t do that.”
But what does an individual do when he or she is confronted with a situation where one party in the conflict wants something that is not outside the legal or professional bounds of acceptable practice, but is deemed by the individual to be “inappropriate,” or “ethically troublesome” or even outright immoral? This is particularly challenging when the requested option has the sanction of law but is still deemed by the consultant to be ethically troublesome. An example might be a woman’s request to end her pregnancy after learning that the fetus she is carrying has Down syndrome. It is tempting to again say, “That is wrong. You can’t do that.” But that is not the role of the ethics consultant or committee. Sometimes, after articulating the permissible boundaries, it may be OK to say, “Though legally and professionally permissible, some individuals coming from a fetal protective standpoint would find this ethically problematic because…” In some situations it may be acceptable to express a personal opinion, as long as it is clearly identified as such. In other situations the consultant’s opinion may be more subtly conveyed in the wording of the conclusion, e.g. “It would not be professionally and legally permissible.”
In the process of doing an ethics consultation, I often try to determine the spiritual or religious beliefs of the patient and/or the family. When I learn that their faith is natively, I may ask if they want to talk with a hospital chaplain. Pastoral support of this sort is often helpful to the patient or family. However, some clergypersons are more comfortable addressing dilemmas in the clinical setting than others.
If the patient’s (or family’s) Christian belief or experience is similar to my own, I may ask if they would like to talk with me about their beliefs or concerns. In these situations, I usually offer to pray for or with them as well. This common bond has not infrequently helped greatly in the resolution of conflicts at the bedside.
So why do I do ethics consultations when I find conflict discomfiting? Because I believe that ethics consultation, both process and substance, can provide a meaningful service to patients, families and professionals who are in distress. My daily prayer is for wisdom and peace—wisdom to be able to discern right from wrong, and peace amidst conflict—a peace that may even ‘pass all understanding.”
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