Mediation in the Long-Term Care Setting: Training Objectives and Commentary

Transcription

1 This is the third in a series f training bjectives develped by the Training Standards Cmmittee f the Elder Decisin-Making & Cnflict Reslutin Sectin f the Assciatin fr Cnflict Reslutin. Mediatin in the Lng-Term Care Setting: Training Objectives and Prepared by the ACR Sectin n Elder Decisin-Making and Cnflict Reslutin Cmmittee n Training Standards As a result f the aging f the baby bmer generatin and advances in medicine that have extended life, mre and mre peple may find themselves needing sme type f lng-term care, whether in the hme r in a facility such as a nursing hme r assisted living envirnment. Disputes that arise in these settings can be stressful fr all cncerned. While many lng-term care disputes lend themselves t infrmal dispute reslutin mechanisms, thers may require the assistance f a third party trained neutral, such as a mediatr wrking within the structure f a frmal mediatin prcess. 1 These training bjectives are fr mediatrs wh want t mediate issues r disputes related t lng-term care, whether prvided in an institutinal r cmmunity setting. As with the ther categries f ACR Elder Care Mediatin Training Objectives, 2 these are intended t be f use t bth trainers and thse interested in participating in lng-term care mediatin training. Mediatin in this cntext encmpasses a brad cntinuum f ptential issues that include but are nt limited t disputes abut shared living spaces, transfer r discharge, level f care, care plans, activities and services, resident rights, crdinatin f care, access and visitrs. Participants may be family members, staff, medical team members, residents, advcates, state agencies, and thers. Due t the ptential cmplexity f the issues and the ptential legal rights implicated, the recmmended best practice is that lng-term care mediatin training be directed t mediatrs with significant experience, wh have cmpleted bth basic mediatin training and advanced cre training in elder mediatin. 3 Training prgrams culd benefit frm inclusin as trainers f lcal experts such as lng-term care mbudsmen, elder law attrneys, and geriatric care managers. 4 The training bjectives assume that apprpriate plicies, prcedures and safeguards have been established, whether by an individual prfessinal mediatr r by a mediatin prgram r ffice. 1 See Karp, N. & Wd, E., Keep Talking, Keep Listening: Mediating Nursing Hme Care Cnflicts, American Bar Assciatin Cmmissin n Law and Aging (Octber 1997). 2 See Elder Care and Elder Family Decisin-Making Mediatin: Training Objectives and, hereinafter ACR Elder Care Training Objectives and Wrking with Elders in Mediatin: Diversity Training Objectives and, hereinafter Diversity Training Objectives. 3 Such training shuld meet the bjectives detailed in ACR Elder Care Training Objectives 4 See ACR Elder Care Training Objectives Intrductin cncerning use f experts in training.

2 Lng-Term Care Objectives Page 2 Lng Term Care Mediatin Training Objectives By the end f the training, participants will understand the fllwing issues, and will have develped skills sufficient t cmpetently mediate disputes in the fllwing areas: 1. Understand the lng-term care setting and regulatry envirnment. Training shuld ffer basic backgrund in the kinds f lng-term care settings and the way they are regulated under federal, state r prvincial, and lcal law. This includes residential settings such as nursing hmes and assisted living, as well as cmmunity-based ptins such as grup hmes, senir husing, and supprted living at hme. 5 Fr example, understanding the differences between a nursing hme and assisted living, the verall regulatry framewrk fr each, and the differences in the typical resident ppulatin will ffer insights int the cnstraints and basic assumptins that may underlie a dispute. Mediatrs als shuld recgnize the varius rles f staff including (fr a nursing hme r assisted living) the administratr, deputy administratr, directr f nursing, medical directr, licensed and practical nurses, scial wrkers, certified nursing assistants and ther direct care staff such as persnal care assistants. Mediatrs shuld understand the particular titles and duties f staff invlved in a cnflict. Nte that terms may differ by setting, jurisdictin, r crprate entity. 2. Becme familiar with the culture f cnflict in lng-term care including: a. Cmmn cnflicts in the lng-term care setting; Training shuld rient mediatrs t cmmn cnflicts they might encunter in the lng-term care arena. Examples in training shuld fcus n areas such as staffing, persnal care, fd, medical issues and residents rights. Mediatrs als shuld recgnize that lng-term care disputes have ethical dimensins with cmpeting values f autnmy versus beneficence, individual autnmy versus cllective interests f the resident grup, and lifelng values versus immediate chices. 6 5 Many dispute reslutin issues in cmmunity settings are included in the ACR Elder Care Training Objectives. The lng-term care training bjectives fcus n additinal aspects unique t the spectrum f lng-term services and supprts. 6 See ACR Elder Care Training Objectives, I-9, n ethical issues in elder mediatin.

3 Lng-Term Care Objectives Page 3 b. Parties t lng-term care disputes; Training materials, exercises, and rle plays shuld recgnize the variety f parties in lng-term care disputes including residents, families, management staff, direct care staff, agency representatives, and health care prfessinals. Training shuld prvide simulatins that invlve institutinal, resident and family situatins. Disputes can be between and/r amng residents, family members, staff, r invlve multiparty issues with an array f actrs. See als discussin f surrgates in Objective 3. c. Existing dispute reslutin mechanisms; and Training shuld discuss the multiple existing mechanisms utside f mediatin (r which culd incrprate mediatin) t address lng-term care issues and cmplaints, including staff reslutin, the care planning prcess, grievance prcedures, resident and family cuncils, chaplains, direct care assciatins, ethics cmmittees, the lng-term care mbudsman, state licensing and certificatin agencies, administrative law prcedures and unin prcedures. Mediatrs shuld knw the resurces that exist in their lcal area. Mediatrs shuld appreciate the apprpriateness, advantages, and disadvantages f using mediatin as an alternative t -- r as a technique in cnjunctin with -- these dispute reslutin ptins. See Objective 5 belw. d. Barriers t reslutin. Training shuld prepare mediatrs fr the challenges they will face in reslving disputes in the lng-term care setting. Mst imprtant, mediatrs shuld understand the challenges in cnvening mediatin. Residents and families may fear perceived retaliatin, and may be reluctant t vice cmplaints r t participate in mediatin. Such fears might include discharge, failure t re-admit after a hspital stay, r attempts t islate residents frm family members wh may have viced cncerns, as well as a reductin in the quality r frequency f care. Fear f retaliatin can have a chilling effect n dispute reslutin effrts. Additinal barriers include: (1) the crprate hierarchical nature f many lng-term care prviders, precluding an agreement by the administratr withut apprval frm crprate ffices; (2) staff turnver, which can erde facility buy-in t a mediative apprach; (3) cultural and language

4 Lng-Term Care Objectives Page 4 differences, 7 which can reduce effective cmmunicatin amng staff, residents and families; and (4) capacity and surrgacy issues. See Objective 3 belw. 3. Understand factrs affecting capacity t mediate and the rle f surrgate decisin-makers. Training shuld emphasize the fllwing: a. Basic cncepts f capacity; Training issues cncerning capacity t mediate are utlined in ACR Elder Care Training Objectives. 8 Capacity t mediate refers t a persn s ability t participate in the mediatin prcess safely and effectively. Because a significant prprtin f individuals in lng-term care settings, especially nursing hmes, may have diminished capacity, addressing questins f capacity is critical. Mediatrs shuld understand that capacity is nt glbal but is bth cntextual and task-specific. Fr example, a party may lack capacity t manage finances, but still have capacity t mediate. In additin, the resident in a lng-term care setting may be better able t participate in a mediatin at certain times f the day, in persnally cmfrtable places in the residence, and/r with the apprpriate aids, such as a hearing aid r glasses. Training shuld highlight cntext as an imprtant part f preparatin and prcess. The gal is t facilitate cntextually, s that the level f capacity t mediate is enhanced. Incapacity is nt synnymus with medical and psychlgical cnditins such as dementia r schizphrenia; rather such cnditins may cntribute t a lack f functinal ability in certain areas. Mediatrs shuld begin with a presumptin f capacity but be alert t indicatins f prblems. Finally, mediatrs shuld recgnize that diminished capacity can be reversible r temprary, when caused by factrs such as side effects f medicatin, malnutritin, stress, grief, and transfer trauma. b. Laws related t persnal and financial surrgacy; Lng-term care mediatin ften invlves wrking with surrgates fr the lng-term care resident. Therefre it is imprtant that participants 7 See ACR Elder Care Training Objectives and Diversity Training Objectives. 8 See ACR Elder Care Training Objectives Objectives and I-5 and I-6 fr a basic discussin f capacity issues in elder care mediatin, as well as Objectives and II-1, II-2 and II-5 under Adult Guardianship Mediatin.

5 Lng-Term Care Objectives Page 5 understand the rle and authrity f a range f legal surrgates, and whether a mediatin must include a surrgate. Training shuld include reference t relevant statutes and regulatins n surrgacy issues in the jurisdictins represented in the training. Mediatrs shuld becme familiar with laws cncerning guardianship and cnservatrship, trusts, financial and health care pwers f attrney, default medical cnsent, and representative payment in their jurisdictins. This prtin f the training may benefit frm presentatin by a lcal elder law attrney r ther knwledgeable expert. c. Standards f surrgate decisin-making; The training shuld cver the substituted judgment and best interest surrgate decisin-making standards, hw these standards wrk, and when they may be required r apprpriate. Mediatrs shuld understand that there is n bright line between these tw standards, and that smetimes a thughtful decisin r agreement culd draw n bth. d. Surrgate relatinship t resident; Training shuld emphasize the mediatr s rle in understanding the surrgate s relatinship with the resident. Mediatrs shuld inquire int the surrgate s histry and familiarity with the individual ver time and the likelihd that surrgate decisins will reflect resident values and preferences, r at least best interests. Training shuld further address dilemmas that may ccur if the resident s wishes appear cntrary t thse f a surrgate, and include discussin f apprpriate strategies shuld this arise in the curse f screening r during mediatin. e. Surrgates and supprt persns; and It is imprtant that mediatrs understand the difference between a surrgate wh has authrity t make decisins n behalf f anther, and a supprt persn wh has n decisin-making authrity but wh can enhance a party s capacity t participate in mediatin. Mediatrs shuld be alert t participant cnfusin in this area in rder t enhance the vice f the lder persn. Training shuld emphasize the imprtance f clarifying rles and explring issues arund the presence f supprt persns and surrgates.

6 Lng-Term Care Objectives Page 6 f. Appraches t maximize capacity t participate in mediatin, even when a surrgate is invlved. Inclusin f the resident in a way that maximizes his/ her ability t participate in mediatin and t have his/her vice heard underlies all these bjectives. As discussed in ACR Elder Care Training Objectives, certain accmmdatins may be necessary t maximize a party s ability t participate in mediatin. 4. Understand the rle f the lng-term care mbudsman as a resident advcate, as established under the Older Americans Act. 9 The mbudsman attempts t reslve cnflict n a resident s behalf. 10 As nted in the cmmentary fr the bjective n the cntinuum f cllabrative prblem slving services (See Objective 5), a lng-term care mbudsman s rle is always t advcate fr the resident. In ding s the mbudsman may emply a wide range f cnflict reslutin skills. The mbudsman s rle as advcate may invlve supprting a resident s participatin in mediatin, particularly when a resident may have cgnitive impediments, may fear retaliatin, r may simply need supprt t participate effectively. In additin, mbudsmen are trained in natinal and state/prvincial regulatins and can help the resident evaluate a prpsed slutin. Finally, mbudsmen ften have existing relatinships with administratrs and direct care staff, which wuld facilitate referrals t independent mediatrs in the cmmunity. Mediatrs f lng-term care disputes shuld be cmfrtable with the rle f mbudsman as resident advcate. Ombudsmen are experienced in wrking with residents, family members and surrgate decisin-makers wh are in cnflict amng themselves. Als, mbudsmen in the United States have federal and state guaranteed access t facilities and residents. Mediatrs shuld understand that smetimes advcating is simply stating the resident s legal rights. This may result in securing an agreement that the right will be respected and bserved in practice by administratin and staff r by family members r surrgate decisin-makers, any f whm may be in cnflict with the resident USC 3058g. In these Objectives, the term mbudsman is used t refer t the lng-term care mbudsman under this act. 10 Nte that ther jurisdictins, such as Canada, may nt have an equivalent rle fr the lng-term care mbudsman.

7 Lng-Term Care Objectives Page 7 5. Review cntinuum f services t supprt the use f cllabrative prblem slving in lng-term care settings. Training shuld include an verview f the spectrum f prcesses fr cnflict reslutin already available t mbudsmen, residents, and facilities in the lng-term care setting. Mediatrs need t be aware that there may be several cnflict reslutin mechanisms already in place. See Objective 2.c, Existing Dispute Reslutin Mechanisms. In additin, there may be mechanisms utside f mediatin that a mediatin prgram can prvide thrugh cllabratin with lng-term care stakehlders. These may range frm facilitatin f early-stage cnflict by lng-term care staff, such as a scial wrker, t invlvement by an mbudsman in a mid-stage cnflict. Training shuld discuss the benefits f prviding cnflict reslutin skills training fr lng-term care stakehlders and staff, and educatin abut when an utside neutral mediatr can be mst useful. Mediatrs shuld understand the differences in the rles f mbudsmen and mediatrs in cnflict reslutin. See Objective 4, Rle f the Lng-term Care Ombudsman in Mediatin. 6. Increase skills thrugh rle play practice and debrief. Rle play skills include but are nt limited t: determining whether mediatin is apprpriate, wrking with individuals with diminished capacity (see Objective 3), identifying any accmmdatins that may be needed, identifying wh needs t participate and their rles, wrking with multiple parties, including staff, surrgates, and supprt persns, and addressing relevant laws and regulatins. Skills training in lng-term care mediatin shuld allw sufficient time t fcus n skills that are unique r especially useful in this setting s trainees can apply the infrmatin learned. Multiple rle plays r exercises may be needed t cver skills used in bth the pre-cnference and the cnference stages f mediatin. Rle plays and exercises shuld prvide trainees with practice in wrking with individuals wh may have diminished capacity, in recgnizing the need fr and establishing accmmdatins, addressing fear f retaliatin, and in maximizing individuals abilities t participate and engage effectively in the prcess.

8 Lng-Term Care Objectives Page 8 Training shuld als ffer practice in wrking with staff and ther stakehlders, t identify wh may participate, t vercme any resistance t the mediatin prcess, and t encurage a cllabrative prblem-slving apprach. Rle plays shuld enable trainees t understand the rles f surrgates and mbudsmen and t understand ways t wrk with them. Rle play examples shuld include the pprtunity t understand the effect f relevant lcal, state/prvincial, and natinal laws and regulatins (r lack theref) n the mediatin prcess. 11 If pssible, including participants frm lcal lng-term care facilities as rle players can enhance the learning experience. 11 See Objective I-10 and Appendix f ACR Elder Care Training Objectives fr further discussin f best practices in skills training.