A "Principled Resolution": The Fulcrum for Bioethics Mediation

By Dubler, Nancy Neveloff | Law and Contemporary Problems, Summer 2011 | Go to article overview

A "Principled Resolution": The Fulcrum for Bioethics Mediation


Dubler, Nancy Neveloff, Law and Contemporary Problems


The concept of a "principled resolution" is the foundation for bioethics mediation. (1) This article presents the core bioethical principles that support the creation of principled resolutions as fulcrums for resolving disagreements in the healthcare setting. These disputes may arise among medical providers, between medical providers and patients, or among members of a patient's family and can be managed or resolved by bioethics mediation using the conceptual tool of a principled resolution.

I

THE FOUNDATION

A. Bioethics Fundamentals: The Foundation for Principled Resolutions

Bioethics is a body of scholarship produced by philosophers, lawyers, judges, medical-care providers, and theologians who, in a lively set of dialogues over the last four decades, have identified shared values and legal rules that provide the basis for the normative principles and precepts of modern medicine. (2) These normative statements have been derived from benchmark ethical theory, largely propounded by John Stuart Mill and Immanuel Kant, which deals with interlocking ideas about morality and human behavior. These now arcane writings were modernized by the new field of bioethics in response to the development of the modern healthcare enterprise. (3) Issues of care related to increasingly powerful medical technology that could maintain organ function beyond the existence of an integrated, relational person led to questions of withdrawing and withholding treatment from such patients and, under pressure from the field of solid-organ transplantation, to the development of criteria for the determination of brain death. (4) Surrogate parenting, stem cell research, feminist ethics, ethics of disability, racial discrimination in healthcare, and other evolving issues have all demanded a contemporary exploration of emerging medical issues in light of established principles and shared societal commitments. (5)

Bioethics involves a set of ethical tenets that support the therapeutic relationship and give rise to physician and caregiver obligations. These include patient autonomy (supporting and facilitating the capable patient's exercise of self-determination), beneficence (promoting the patient's best interest and well-being and protecting the patient from harm), non-malfeasance (avoiding doing harm to the patient), and distributive justice (allocating fairly the benefits and burdens of healthcare delivery). (6) Finally, bioethics is about legal rules that have been created by courts and legislative bodies at the federal and state levels. (7) These rules have recognized and responded to the evolving standards of care in medicine and defined the outer boundaries of a spectrum of possible behaviors from which a principled resolution is selected. (8)

B. Introduction to the Notion of the Principled Resolution

Congress; state legislatures; federal and state courts; and scholars in law, medicine, and philosophy have all addressed the process of how patients, family members, and medical professionals allocate decision-making authority and responsibility in the clinical-medicine setting. (9) The rules are crisp and clear; the implementation, affected as it is by emotion, fear, and misunderstanding, can be messy. (10)

A principled resolution is a "consensus that identifies a plan that falls within clearly accepted ethical principles, legal stipulations, and moral rules defined by ethical discourse, legislatures, and courts, and that facilitates a clear plan for future intervention." (11) In 2005 Carol Leibman (12) and I were first struggling with the tensions among three competing factors: (1) the stringent limits imposed by law on medical providers and institutions, (13) (2) the powerful decision-making authority permitted to individual patients and families in medical decisionmaking, and (3) the power imbalances that infuse the operations of the modern hospital and medical center. The notion of a principled resolution combines the strengths of a mediative process that levels the playing field with legal norms and ethical conventions, and uses both as support for forging a consensus. …

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