Discussion, Mediation and the Avoidance of Court Cases

Dr Chris Danbury, is very keen on the promotion of a formalised 'mediation process' to try and address the problems which arise when clinicians and families disagree about treatment. I've just cobbled this piece together, because I'm going to point Dr Danbury at it.

I very much agree with Dr Danbury, when he says that such disagreements often lead to a serious breakdown of 'trust' between the two sides of the dispute, and that if possible resort to a court ruling should be avoided.

But there isn't, legally, a place where 'mediation' as a concept fits into English law, if the patient is mentally capable. And there are some other issues, which need addressing before 'mediation' can be used in other cases: notably, when the patient is a mentally-incapable adult.

When the patient is a young child, it is clear that the disagreement will almost always be between the clinicians and the child's parents.

But, 'I am not my brother's keeper' is the situation for adults - there doesn't seem to be any equivalent of 'the child's parents' in legal terms, for mentally-incapable adults. Often people working in the NHS seem to think 'next of kin' applies, but it doesn't: the law we need to deal with, is the Mental Capacity Act, and it does not involve 'next of kin'.

An issue needs 'sorting out' before you can even properly engage in a 'mediation process', assuming that you think 'mediation' is the answer (and I'm far less keen on 'mediation' than Dr Danbury is - I'm very keen on 'everyone talking and getting their heads together', which is not quite the same position). I am currently discussing an SCIE online e-learning tool about the Mental Capacity Act, and there is something interesting in it, about IMCAs. The tool tells us, in a section covering 'who can see the medical records':

'The IMCA will request access to the person's relevant health and social care records. The law gives them the right to see relevant records that might normally be considered confidential.'

I sent this to the SCIE:

There is something strange here, as well. It goes like this:

Normally there will only be an IMCA if there is no relative or friend who can perform the same 'role'

The law [I am told above] lets IMCAs see 'confidential' records

So does the law allow relative(s)/friend(s) to see the same 'confidential' records ?

The SCIE's MCA chap replied with 'I agree this is a grey area.'

There also seems to be a belief among clinicians, that a patient has the legal right to forbid the future disclosure of medical information and that this over-rides section 4(6) of the MCA. I can't see where the law has told us that - see my BMJ piece at:

http://www.bmj.com/content/348/bmj.g4094/rr/703333

There is not, of course, any conflict between patient confidentiality and patient autonomy projected forwards into a future period of mental incapacity. So if there is no need for a section-4 MCA best-interests decision to be made, there is no need for any disclosure of medical information [legally - 'telling the family what is going on (more accurately, WHY things are happening)' might not be a strict legal requirement, but it is increasingly becoming 'prompted good practice').

What this amounts to, is that the current advice to clinicians - 'patient confidentiality must be respected' isn't necessarily correct.

What is true, is that a patient who has already made and expressed the decision which would otherwise need to be made during future incapacity, can insist on 'confidentiality' of his medical information: but the patient cannot insist on 'confidentiality' UNLESS HE MAKES AND EXPRESSES those 'future decisions'.

These issues, will need to be sorted out even if 'mediation is promoted' - they also need to be sorted out, anyway ! There is a problem which afflicts this, while clinicians see themselves as essentially 'not just one part of a team which includes family and friends', and I explained it in a BMJ piece:

http://www.bmj.com/content/352/bmj.i26/rr

What I pointed out was:

Patients are all individuals within a clinical situation, and the family and friends understand the patient as an 'individual person' [something the clinicians rarely do] while the clinicians understand the clinical situation [but the patient and the laymen 'close to the patient' rarely do]. How much of this is down to 'the operational difficulties of discussions around death' I am unsure about, but it does seem that clinicians are 'most relaxed' when it seems almost certain that attempted CPR would fail, whereas I believe that family and friends are often 'most reconciled to' a refusal of CPR from the patient [irrespective, to an extent, of clinical predictions about the probable 'success' of attempted CPR].

The situation is even worse, if the patient has lost mental capacity: because 'not really knowing the patient' does of course mean that clinicians are unsure about which individuals do 'really know the patient' [and the Mental Capacity Act's section 4, does not mention 'next-of-kin' - the thing clinicians can easily discover, this 'next-of-kin' concept, is not appropriate for MCA best-interests decision-making]. Which is another way of saying, that clinicians seem to see potential conflicts between 'patient confidentiality' and the logical requirements imposed by section 4(6) of the Mental Capacity Act, rather differently from how I would view that, if I were a welfare attorney (with powers over life-sustaining treatments) considering whether DNACPR was 'in the patient's best interests'.