To Apply Restorative Justice Practices To Ethics Consults

 

A Suggestion:

To Apply Restorative Justice Practices To Ethics Consults

 

Brian Lynch, M.D.,

 

 

 

Over a number of years of being involved in clinical ethics I have noted one recurring theme. That theme is simply that communication is important. Not earth shaking, but as many important things in life communication is a "background" to our lives. We are always chasing an illusion that we are indeed "communicating". I want to show that when we recognize how emotion influences communication we will, from then on, be much more cognizant of the mechanics of communication and it will no longer be something that we take for granted.

 

 One of the observations about communication is that many a consult or indeed most consults have little to do with large moral or ethical issues or even a medical technical dilemma but center around  that one person did not talk to another person or someone did not communicate with someone else or that someone’s feelings where hurt. This is also true of many medical encounters in general.

 

Much of the time what is seen as an  ethical issue turns out not to be one. In any and all cases whether they are writ small or large one of the impediments to the interests of any given member of the group involved may be an issue of feeling. Something is blocking progress and I wish to say that it may be specific individual feeling.

 

There is much written, it seems, to avoid addressing this issue. Ethics is seen as a discipline that applies norms drawn from philosophy, moral theory, ethical theory, medicine and the law to assist in arriving at a consensus.  Psychological and psychiatric issues are less emphasized.   I wish to simply emphasize them a bit more. I want to do this by suggesting that much can be learned from the conferencing technique and explaining why that technique works.

 

This technique came out of the Mauri culture.  They petitioned the government to allow a parallel system of justice. If the conference worked and there was an agreement made and followed  resolution was achieved and nothing more would be done,  if not, the case would revert to the traditional Western legal system. This process has developed rather rapidly over the last ten years and is being used extensively in New Zealand, Canada and, now in the U.S. and other places in modified form. 

 

With disease and crime, harm has been done and in both cases the desire is to return things, at least, to how they were. In both cases this is often not possible. Sometimes it is. Rarely do things return to better then they where but this is certainly possible and a better situation has often come out of the process of using a set of rules such as the following: .

 

This conferencing technique applies restorative justice principles.  The principles are what follows. I give you first the principles as they are used in the criminal justice system and then I reword them for medicine. They are:

 

1. Foster awareness. In the most basic intervention we may simply ask a few questions of the offender which foster awareness of how others have been affected by the wrongdoing. Or we may express our own feelings to the offender. In more elaborate interventions we provide an opportunity for others to express their feelings to the offenders.

2. Avoid scolding or lecturing. When offenders are exposed to other people’s feelings and discover how victims and others have been affected by their behavior, they feel empathy for others. When scolded or lectured, they react defensively. They see themselves as victims and are distracted from noticing other people’s feelings.

3. Involve offenders actively. All too often we try to hold offenders accountable by simply doling out punishment. But in a punitive intervention, offenders are completely passive. They just sit quietly and act like victims. In a restorative intervention, offenders are usually asked to speak. They face and listen to victims and others whom they have affected. They help decide how to repair the harm and must then keep their commitments. Offenders have an active role in a restorative process and are truly held accountable.

4. Accept ambiguity. Sometimes, as in a fight between two people, fault is unclear. In those cases we may have to accept ambiguity. Privately, before the conference, we encourage individuals to take as much responsibility as possible for their part in the conflict. Even when offenders do not fully accept responsibility, victims often want to proceed. As long as everyone is fully informed of the ambiguous situation in advance, the decision to proceed with a restorative intervention belongs to the participants.

5. Separate the deed from the doer. In an informal intervention, either privately with the offenders or publicly after the victims are feeling some resolution, we may express that we assume that the offenders did not mean to harm anyone or that we are surprised that they would do something like that. When appropriate, we may want to cite some of their virtues or accomplishments. We want to signal that we recognize the offenders’ worth and disapprove only of their wrongdoing.

6. See every instance of wrongdoing and conflict as an opportunity for learning. The teacher in the classroom, the police officer in the community, the probation officer with his caseload, the corrections officer in the prison all have opportunities to model and teach. We can turn negative incidents into constructive events—building empathy and a sense of community that reduce the likelihood of negative incidents in the future.

 

I think it is obvious how these principles might be rewritten to apply them to any encounter in the medical setting, ethical or otherwise.

 

1. Foster awareness. In the most basic intervention we may simply ask a few questions of the patient, family member and the medical team, which foster awareness of how others have been affected by the illness. Or we may express our own feelings to the patient, family member or medical personnel.

2. Avoid scolding or lecturing. . When patients, family, physicians and other members of the medical team are exposed to each other’s feelings about the medical problem empathy in the group is increased When anyone is scolded or lectured, they react defensively. They see themselves as victims and are distracted from noticing other people’s feelings.

3.Involve all members of the team actively. All too often we try to hold particularly specific family member , physicians or the patient themselves accountable for impediments to progress  by simply doling out mild restrictions to outright punishment. When this is done passivity is encouraged. They just sit quietly and act like victims. In a restorative intervention, we wish all to speak. They face and listen to each other. All help decide how to repair the harm and must then keep their commitments.

4. Accept ambiguity. Sometimes, as in a fight between two people, fault is  unclear. In those cases we may have to accept ambiguity. Privately, before the conference, we encourage individuals to take as much  responsibility as possible for their part in the coming to a solution. Even  when participants do not fully accept responsibility, participants often  want to proceed. As long as everyone is fully informed of the ambiguous  situation in advance, the decision to proceed with a restorative   intervention belongs  to the participants

5. Separate the disease from those involved. In an informal intervention, either privately with the patient or family members or patients or publicly after the  group is feeling some resolution, we may express that we are trying to see the medical problem as neutral and that we are simply surprised  by what has happened and that what has happened has for us very personal meaning and may have brought up old unresolved issues. We want to signal that we recognize the power of disease and illness.

6. See every instance of conflict as an opportunity for learning. The patient, family members, physicians and the entire medical team all have opportunities to model and teach. We can turn negative incidents into constructive events—building empathy and a sense of community that reduce the likelihood of making a bad situation worse

 

 

 

Why is this any different than what is being done now in any medical encounter? Often it may be no different at all. Of course those in the legal system have a very different task, their bent towards understanding what motivates people is not as great as those that go into the healing professions. If much of what I suggest is already being done then this is good. I am trying to offer a grounding of why much of what we do already does work and thus hope to demonstrate how much of it is "teachable", if and only if, we pay attention to the motivation that emotion gives us. Of course what the conferencing technique is doing is trying to make the legal system much more like the health care system. We are trying to dememostrate to the legal system that crime happens, just as disease happens, like cancer, and it is best to concentrate on the complexity of the situation and begin to understand that extreme emotion, is like a cancer, and it is this that leads to "crime".  In either case the task of either profession, medical or legal, is to keep the person attended to, as much in the human conversation, as possible, for as long as possible.

 

It is not the purpose of this short piece to lay out a whole theory. That said the developers of these restorative practices themselves looked for a grounding as to why what they where doing worked. The most significant support came form the work of Donald Nathanson, a psychiatrist in Philadelphia, who had been a student of Silvan S. Tomkins. The Tomkins/Nathanson work on shame seemed to give them a theoretical grounding for what they where doing. 

 

Shame has been acquiring some acceptance in the literature over the past ten years.  The following is an abstract of a recent article that can serve as an introduction to how the concept of shame can be applied.

 

Thirty-four people referred to an NHS psychotherapy department were given a modified form of Oatley and Duncan's (1992) emotion diary which included questions about whether each recorded emotion had been subsequently disclosed to anyone (for example a partner, friend or professional). One week later the diaries were collected and participants interviewed. Interviews focused, among other things, on reasons for nondisclosure of recorded emotional experiences and the relationship between shame and non-disclosure. The results indicated that a majority of the emotional incidents recorded in the  diaries were not disclosed (68%). This result contrasts with studies on  non-clinical samples in which only approximately 10% of everyday emotions are kept secret. Qualitative analysis of the interview data revealed that participants appeared to be habitual non-disclosers of emotional and personal experiences and that non-disclosure was related to the anticipation of negative interpersonal responses to disclosure (in particular labeling and judging responses) in addition to more self-critical factors including shame. It is suggested that these results add to the existing literature on shame by illustrating the interpersonal effects of shame in a clinical sample.

 

 

We who practice the principles of a theory called Affect Theory as developed by Tomkins feel shame to be central to unveiling trouble in any human encounter.

 

Now shame is a very difficult word. It means a multitude of things to people. Tomkins defined it in a unique way. He stated that in its pure emotional form shame is a physical reaction to something. A stimulus from outside or inside the body, anything from pain to a cognition(thought) can interrupt whatever we happen to have as a goal at the moment.  The trouble is that we interpret this feeling in a myriad of ways and often mistake it for guilt. But again at it’s most basic level we can just call it pain or confusion. We where doing something and something bothered us, interrupted us. Much of the time it seems that this idea is so simple that people simply fly by it and do not contemplate it.

 

So we see that 68 percent of those in the study did not disclose incidences that where related to shame.   This is probably true in many human settings.  At this point in reading this there may even be many people who will be lost and be disgusted or confused by what I am saying. All I can say is I know this and ask you to trust me. If you are feeling as if you do not want to proceed that is exactly the feeling I am talking about. By talking about shame I have probably triggered your concept of it that probably involved guilt. So you probably are wondering if I am purporting to turn the encounter into a confessional or something.  This is not the case. We think shame just makes us feel bad and that it confuses us. When we are in that state it is hard to make a decision. We have all probably had the insight that the most important decisions are made at a time when we are confused and even overwhelmed. We say this is a feeling of shame. We all know too that we have felt "guilty" for decisions made. "We should have done a better job."

 

So using the principles that I suggest here, that have been developed by others, I suggest that we can, by recognizing this feeling, especially in the patient, and uncovering it, we will be much more efficient and productive and helpful. To be clearer we really do not need to work hard to "uncover" shame as it is always with us. It is that feeling that we must not divulge something or that in the process of divulging it something interrupts, a thought a memory, something, someone says, or some other emotion that we feel such as fear or anger. What really needs "uncovering" is the structure at work in the room that is limiting the expression of emotion.  Is it the demeanor of the doctor or is it a hidden conflict between husband and wife? We all know this and we all have our ways of dealing with it. It is true we don’t have much formal training in it. People seem either to have a "talent" for it or not. We mostly learn by observing others. We say "respect" the patient but we also see that we should not "get into that" meaning the emotional and psychological side of things. I insist here we do not have to become a psychologist or psychiatrist we just have to learn a few things. Imagine getting 68 per cent more information! 

 

We can accomplish this by the rules set out in the above rewrite.  To simplify it, in my experience, is not a very difficult task.  I repeat that shame does not really have to be "uncovered" it is always right there with us. It is the thing in the room that all can feel but none recognize and that we where all taught to ignore. My way of collapsing all the rules is to simply come out and say that I know that the person is "hurt." We all know this as “validating”’ and this is one thing that confuses me. We all talk about validating feelings but then don't seem to recognize what we are doing or what we did. 

 

This approach shows us what we did and what we are doing, we want to dwell on the hurt, to recognize it and recognize the trigger so we can remove it.  I use the words "hurt," "confusion" and "shame" as synonyms. "I know you are or have been hurt," "I know you are confused." I rarely use the word "shame" unless I have had ample time to introduce my definition.  We identify emotion and by identifying it we identify what its trigger was or might be. In the clinic we hope to identify the impediment to proceeding.

 

The psychotherapeutic technique called Cognitive Therapy was discovered in a similar way as laid out in the above abstract. It was noted by Dr. Aaron Beck that many patients in psychoanalysis would edited their thoughts while in therapy.  It was obvious once this was pointed out that a tremendous amount of information was being lost, the technique was shifted and patients where encouraged not to edit their thoughts and now cognitive behavioral therapy is well recognized.

 

The identification of shame and emotion such as being done in this  type of study is a step beyond the thought or cognition. It becomes clear that people do block cognitions due to shame. Cognitive therapy becomes not cognitive but a method to release shame, to expose it, a method of releasing pain and thereby diminishing it or reliving it. In doing so it ameliorates pain and confusion. Reason and interest can be freed and communication can proceed un-impeded until the next incident of confusion.

 

So communication can be greatly enhanced by recognizing that emotion, and especially shame, is always lurking in the background.  To emphasize again,  I am not asking anyone to be a psychologist or psychiatrist or to know all the latest techniques.  That said I am of the firm conviction that like much of what we have done as humans we have gone too far in specializing. Emotion is normal. Emotion has a normal logic to it. Emotion fits with reason in certain ways. We now know something about how it fits together.  All restorative principles are doing is tying into that knowledge.  If the principles are followed a safe environment can be attained for all. Once that is done then emotion is expressed as it should be and reason works with it and not against it.

 

In summary, much of our work in medicine, at any level, deals with simply getting the thoughts of one person into the head of another person. We all know that emotion can hinder this. We have mostly tried to, consciously or unconsciously, continue to do what Descartes did, and that is purge reason of emotion. Having done so it is amazing to me, knowing what I think I now know, that we have come so far ignoring emotion. I hope I have, along with those working in this area, offered a simple framework that, if followed, gives a template upon which we can keep emotion and reason in perspective, keeping both in the foreground and thus keeping "communication" in the foreground.

I have summarized my understanding of why Restoravie Justice works and the theory on which those thoughts are based, the work of Silvan S. Tomkins in the following:

Twelve Steps To Emotional Health (VER ESTE EN ESPANOL)

Brian Lynch 2003

PLEASE CONSIDER BOOK AND CD'S


 

 

 

Restorative Practices

 

http://www.restorativepractices.org/Pages/nacc_nat.html

 

http://www.restorativepractices.org/

 

Real Justice

 

http://www.realjustice.org/index.html

 

Resource page for Affect Theory/Dr. Brian Lynch

 

http://www.brianlynchmd.com/AT/resources.htm

 

Silvan S. Tomkins Institute

 

http://www.behavior.net/orgs/ssti/2000/index.html

 

The Beck Institute of Cognitive Therapy

 

http://www.beckinstitute.org/

 

Shame and Pride: Affect, Sex and the Birth of Self, W.W. Norton,  Donald L. Nathanson

 

Affect, Imagery and Consciousness, Springer, New York,   Silvan S. Tomkins

 

Shame and non-disclosure: a study of the emotional isolation of people referred for psychotherapy. 

Author:   Macdonald J , Morley I