Beyond Right and Wrong

How mediation could help resolve contested decisions in paediatric palliative care

Sarah BarclayCardiff, July 2010

What are the ethical dilemmas?

Decision Making

What is the court being asked to decide?

‘Judges are given the appalling task of weighing up issues of immense sensitivity on which they have received little training – medicine, parental love, ethics and often religion’

Marcel BerlinsThe Guardian 23 March 2009

What isMedical conflict?

‘Court battle over hospital that wants to let baby die’

26 September 2004

‘I’m hoping for a miracle,’ says Charlotte’s father.

2 October 2004

‘I can really think of little that would be worse than for a child to be intubated and die in the course of futile treatment, or, worse still, in the course of futile treatment while futile legal proceedings were on foot’

Mr Justice Hedley

The Baby OT case

Parents ‘deeply distressed’ by court ruling to switch off life-support for their boy

21 March 2009

The Baby OT case

Parents may sue hospital over right-to-die battle

23 March 2009

The Story Of Child B

Mediation

An alternative solution

Mediation

A flexible process conducted confidentially in which:

• A neutral person actively assists the parties in working towards a negotiated agreement of a dispute or difference

• The parties are in ultimate control of the decision to settle and the terms of resolution

Mediation

Two types:

•Evaluative•Facilitative/Transformative

Mediation in the medical arena

‘This plaque is dedicated to the memory of children and pre-viable babies who died and from whom organs were wrongly retained in former times. This dedication acknowledges the role of parents in bringing about appropriate change’

Memorial plaque, Alder Hey

‘There are potential advantages to using mediation in disputes about critical care decisions in neonatal medicine…’

A new approach

Litigation MediationAdversarial ConsensualInflexible Flexible

Backward-looking Forward-lookingExternally imposed

judgmentMutually agreed solution

Time-consuming Relatively quickVery costly Relatively cheap

A cheat’s guide to ethical principles

• Beneficence • Non-malfeasance • Autonomy • Justice

So:

What is it?How would it work?

• Facilitated discussion• Formal mediation • An option even after legal action starts• Training in effective communication

Thank you for listening:

Please get in touch• sarah@medicalmediation.org.uk• 07802-783184• www.medicalmediation.org.uk