Mediation and Estate Planning Blog

Non Disclosure of Medical Records by a Family Member Who is Also the Care Giver for the Elder

Non Disclosure of Medical Records by a Family Member Who is Also the Care Fiver for the Elder

Our sister moved in with our mother in order to provide care for her and as a result also accompanies her to her doctor’s appointments. She refuses to share with us any medical records for our mom. We are concerned that our mom is not getting the medical care that she needs. Can Mediation Path Silicon Valley, LLC help us?

At Mediation Path Silicon Valley, we deal with the situation described above on a regular basis. To solve this type of issue, we usually use the 3 following steps to better understand what leads the care giver to behave this way, to make sure that mom's wishes are taking into account and to help the family members craft a solution for the future.

Step 1: Understanding why the care giver refuses to share the medical information

Asking the care givers to share mom's medical records can be interpreted by them as challenging their ability to take care of mom and/or as a lack of trust on the part of the other siblings.

It is crucial to keep in mind that most of the time, the care givers are not even aware that their refusal is motivated by an emotional response. As a result, the care givers will justify their behavior by various explanations which oftentimes have the purpose of triggering the guilt of the other siblings for not trusting him/her and questioning their ability to always do what is best for mom.

Here are a few examples of these justifications:

The care givers have assumed the day to day decisions for the elder and nobody is complaining. Therefore, they feel entitled to decide what is best for mom regarding the medical choices that need to be made;

Some care givers have their own ideas of what level of care and what course of action mom should be taking. Because they take care of the elder they simply assume that they know best what needs to be done;

The care givers often time believe they put their own life in the back seat to take care of mom. Therefore they cannot stand to have the decisions they made criticized.

In these kind of conflicts, our role as mediators is to make all parties aware of each other hidden emotional issues which lead to this situation. Once this is done, the parties will be able to communicate again in a more truthful way.

Step 2: Check if mom has signed an advance health care directive

We usually ask if mom has signed an advance health care directive. This is a document that mom would have signed indicating what kind of care she wanted, and naming an individual or individuals to have the power to make decisions for her. We then point out to the family members that this document contains mom’s wishes for her healthcare treatment and the person that mom chose to make those decisions.

Step 3: Evaluating mom's physical and mental condition

In situations like this, we suggest that an evaluation be done of mom's physical and mental condition. The evaluation can indicate whether mom is currently competent to make medical decisions. If she is not capable of making medical decisions for herself, then the evaluation will be useful as it can outline what level of care mom currently needs.

As mediators, we rely on the medical evaluation, to redefine with the family members what should be the role of the care giver and his/her siblings. In the above phase one and two of the mediation process we mostly focus on working with the parties' emotions. On the contrary, in this third phase of the mediation process we mostly rely on the facts described in the evaluation report. The report will reveal if mom is capable of living in her own home, if she needs a caregiver two days a week or full-time at home, if it would be more appropriate for her to be placed in a residential facility or in a skilled nursing facility.

Now that it is clearer what mom requires with regard to her living arrangement and her medical care, we will use our mediating skills to shift the family members attention on how to get mom the level of care that she needs.

As a result, the person who has authority to make medical decisions for Mom will be willing to provide information to the other siblings about mom's medical condition and/or access to mom's medical records.

By using the 3 steps described above, mediation will allow the family members to overcome their initial disagreement (sharing or not the medical information), re-open the dialog as they better understand the emotions of each other, decide what is best for mom based on facts and not on resentment or the need to be right.

Sophia Delacotte