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Could mediation help?
The UK readership of Archives will remember October 2004 for Charlotte Wyatt1,2 and Luke Winston-Jones.3,4 Charlotte was severely disabled following complications of extreme prematurity, and Luke with trisomy 18. In each case the clinical teams believed that active, life prolonging medical interventions would not be in the best interests of the baby. The cases were brought to the civil courts because fundamental and irreconcilable differences between the families and the clinical teams came to an impasse, leaving the respective hospitals with no alternative but to seek a judicial ruling on the management of each child. Observers from other units will either feel that they have been there too, or dread the time that they may find themselves in similar situations.
We should reflect constructively on these cases and be thankful that they remain rare. Most of the time, even in the most difficult situations, we are able to work alongside parents, maintain a bond of trust, and achieve high quality palliative care for infants where the gratuitous prolongation of life is cruel, futile, or impossible. But were the cases of Charlotte and Luke ones where such a resolution was never going to be possible? Or should we wonder whether, with hindsight, either or both of theses situations could have been avoided? It would be of service to the wider community of neonatal care if, after appropriate consideration, the respective teams were able to publish their thoughts; yet the identifiability of the cases would make this impossible without the explicit permission of the families, and it is ethically arguable whether they should even be approached for such permission. We may be doomed not to be able to learn from our recent history, a part of the NHS without an organisational memory.
It would have been particularly valuable to know whether mediation or conciliation was used in either of these cases. If it was, it would appear to have been a failure in so far as the cases came to court anyway; but even if mediation is ultimately unsuccessful in achieving resolution of a problem, it can be of immense value in allowing the parties to define the issues more clearly, and it may uncover issues that have not been apparent on the surface. At an earlier stage than legal proceedings, even apparently polarised attitudes can be susceptible to skilful mediation.
Are there other similar cases around the country in which mediation or conciliation was successful in bringing together professionals and families with seriously divergent views about the management of a baby? Only the participants will know. Yet it would be so valuable for others not to have to reinvent the wheel every time a case like these arises.
Mediation and conciliation can take different forms. It is unlikely that a mediation strategy that attempted to resolve all differences in a single day (a common legal and commercial model) would be successful in a long standing clinical situation. In contrast, an approach that allowed time between meetings with the mediator so that reflection and discussion could take place, and in which the mediator could call on independent specialist clinical advice, might be an attractive option when intransigence appeared to be developing. Such a model is already used in primary care conciliations for the resolution of complaints and could easily be adapted to impasses between clinicians and parents. Mediation/conciliation does not avoid costs, but they would be vastly less than those accrued by a judicial hearing.
Will these rare events become more common? We may find that advances in medical technology collide more often with families whose beliefs are at great variance with those of their medical and nursing carers. The legal frameworks within which paediatricians work in the UK and elsewhere are always likely to lag behind medical innovations and capabilities, creating new hinterlands of uncertainty and greater possibilities for conflict. The internet allows parents access to a great deal of information, but it can be hard to be discerning about the quality of the information, and all too easy to mistake knowledge for wisdom. Our ways of working with parents must evolve to accommodate this challenge, otherwise trusting relationships will be harder to build, and conflicts become more common.
The publicity that always accompanies these cases potentially damages families, carers, and professionals, and the facts are seldom reported without distortion or spin. There is general agreement that courts are not the places where it is optimal to define clinical management, and that every avenue should be explored to obtain resolution of differences without recourse to judicial input. Mediation/conciliation remain underdeveloped approaches outside primary care: perhaps we should give more thought to their use in cases like these.
Could mediation help?
Competing interests: none declared
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