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Conduct a search of Campbellsville University’s online Library resources to find 1 recent peer reviewed article (within the past 3 years) that closely relate to The Golden Rule. Your submission must include the following information in the following format:

Key Term:

  • The Golden Rule

DEFINITION: a brief definition of the key term followed by the APA reference for the term; this does not count in the word requirement.

SUMMARY: Summarize the article in your own words- this should be in the 150-200 word range. Be sure to note the article’s author, note their credentials and why we should put any weight behind his/her opinions, research or findings regarding the key term.

ANALYSIS: Using 300-350 words, write a brief analysis, in your own words of how the article relates to the selected chapter Key Term. An analysis is not rehashing what was already stated in the article, but the opportunity for you to add value by sharing your experiences, thoughts and opinions. This is the most important part of the assignment.

REFERENCES: All references must be listed at the bottom of the submission–in APA format. 

Be sure to use the headers in your submission to ensure that all aspects of the assignment are completed as required.

Any form of plagiarism, including cutting and pasting, will result in zero points for the entire assignment.

You should incorporate these topics into your analysis section. If you do, then the chances of earning a high grade are GREATLY increased, in fact, this is the FIRST thing I look for when grading your papers. 

1. Explain why you selected this particular article among all the articles you could have chosen on your selected term.

2. Explain why you agree or disagree with the author’s key positions in the article. 

3. Explain how the article was easy or difficult to understand and why? 

4. What did the author do well in your opinion? Explain.

5. Describe what you believe the author could have done better in your opinion?

6. What else should the author have included in the article and would the article benefit from a different perspective (such as from a different nationality or different industry or experience perspective). Explain. 

7. What other sources or methods could the author have used to improve the research in the article?  (Hint: look up the types of qualitative and types of quantitative research methods). 

8. What information / in-depth study / or further research should the author focus on as a follow up to this article and why? 

9. Explain what audience would gain the most benefit from your selected article and how they could apply it in their professional lives. 

10. What did you personally gain from this article and how has it shaped your thinking on the topic?  

11. What are the conflicting or alternative viewpoints of the author’s position? Or  What additional research backs up and confirms or adds to the author’s position?  (Hint: this will require you to find another peer-reviewed article that challenges, confirms, or adds to, or provides a different perspective to your chosen article.)

Next,  I look for the summary, writing quality, and formatting. 

I am typically very lenient on the writing because I am more focused on your content, but I will also point out how the paper could be better written. I only heavily penalize poorly written papers when there are excessive writing problems.

Why do I grade papers in this class this way?  

One of the key differences in a Bachelor’s vs Master’s level is critical thinking. Bachelor’s level basically challenges direct knowledge and recall of information. The Master’s level is more about analysis and critical thinking and defending your position in a scholarly way. The analysis section of these papers is your opportunity to exercise critical thinking (that’s why I call this portion of your papers critiques). 

Recalling or simply explaining the journal articles is a bachelor’s level task. When I see this in your papers I give the paper an automatic C. If the paper is poorly written it also gets an F. 

To get a B or an A – you must provide a critique of the paper and the author and how well the author did and what you think of the article. The questions listed above do this properly.  

I do not want to read your version of the journal article. I may as well read the journal article for myself.  Just briefly describe the article in your summary section  – but the analysis section is where you put in your personal critique – in other words, address the questions listed above and even add in additional thoughts based on your own creativity. 

RESEARCH ARTICLE Open Access

Decision making on (dis)continuation of long-term treatment in mental health services is an interpersonal negotiation rather than an objective process: qualitative study B. Koekkoek1,7* , B. van Meijel2,3,4,5, A. Perquin1 and G. Hutschemaekers6,7

Abstract

Background: Research into termination of long-term psychosocial treatment of mental disorders is scarce. Yearly 25% of people in Dutch mental health services receive long-term treatment. They account for many people, contacts, and costs. Although relevant in different health care systems, (dis)continuation is particularly problematic under universal health care coverage when secondary services lack a fixed (financially determined) endpoint. Substantial, unaccounted, differences in treatment duration exist between services. Understanding of underlying decisional processes may result in improved decision making, efficient allocation of scarce resources, and more personalized treatment.

Methods: A qualitative study design, according to Grounded Theory principles, was used to understand the decision making process. In four teams in three large Dutch mental health services, 29 multidisciplinary case conferences were observed, and 12 semi-structured interviews were conducted.

Results: We describe two constituent elements of decision making: the process through which decision making is prepared and executed, and the substantial factors guiding its outcomes. The first consists of: (1) steps towards a team discussion on treatment termination, (2) team-related factors that influence decisions, and (3) the actual team decision making process. The second consists of factors related to patients, professionals, organization, and wider environment. Our main finding was that discussions of treatment (dis)continuation are highly unstructured. Professionals find it difficult to discuss with patients and teams, team discussion are ad-hoc, and clear decisions are scarce. We offer four explanations: first, long-term treatment lacks golden rules on outcome and process to base decisions on. Second, in the absence of such rules professionals rely on experience but underappreciate their own biases. Third, consequently, professionals aim for decisional consensus, which however is scarce among professionals. Fourth, treatment environments are hardly in favour of changing default (continuation) settings.

(Continued on next page)

© The Author(s). 2019 Open Access This article is distributed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted use, distribution, and reproduction in any medium, provided you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license, and indicate if changes were made. The Creative Commons Public Domain Dedication waiver (http://creativecommons.org/publicdomain/zero/1.0/) applies to the data made available in this article, unless otherwise stated.

* Correspondence: bauke.koekkoek@han.nl 1HAN University of Applied Sciences, Research Group Social Psychiatry & Mental Health Nursing, Kapittelweg 33, 6525 EJ Nijmegen, The Netherlands 7Pro Persona Mental Health Services, Wolfheze, The Netherlands Full list of author information is available at the end of the article

Koekkoek et al. BMC Psychiatry (2019) 19:92 https://doi.org/10.1186/s12888-019-2072-0http://crossmark.crossref.org/dialog/?doi=10.1186/s12888-019-2072-0&domain=pdfhttp://orcid.org/0000-0002-6967-4471http://creativecommons.org/licenses/by/4.0/http://creativecommons.org/publicdomain/zero/1.0/mailto:bauke.koekkoek@han.nl

(Continued from previous page)

Conclusion: Clear decision making, and terminating treatment when appropriate, is systematically hampered within secondary mental health services. Since continuation is the ‘easy’ default option, discontinuation requires skillful and determined navigation of interpersonal negotiations. Given services’ scarce means, people’s large demands for help, and patients’ unused potential autonomy, it is desirable to invest in decision making skills and procedures – both human and economic benefits may be substantial.

Keywords: Netherlands, Mental disorders, Mental health services, Psychosocial treatment, Therapy, Grounded theory, Qualitative research, Allocation of treatment resources, Decision making

Background Research into the termination of long-term treatment of mental disorders is nearly absent [1, 2]. While short-term, protocol-based psychotherapy has been subject of rigor- ous trials [3], treatment lasting longer than 20–30 sessions or a year is largely unmonitored [4]. There is a substantial, non-empirical, literature on terminating long-term ana- lytic psychotherapy [5], but not on long-term psychosocial treatment. Psychosocial treatment is a broad term for talk- ing therapy aimed particularly at support and recovery, and less at change and cure. It includes treatment as pro- vided by community mental health teams in the Netherlands, the UK and the US [6] and is generally of- fered by secondary mental health services. Psychosocial treatment, being cheaper and more easily accessible to people with complex problems, is far more frequently ap- plied than psychotherapy while it faces equally scarce re- sources. Timely termination is necessary to maintain availability of services for other people seeking treatment [7], and to avoid patients’ unnecessary dependency on ser- vices [8, 9]. Outcomes of psychotherapy-trials for common mental

disorders are unequivocal: optimal length of treatment ranges between 10 and 13 sessions, largest effects are observed at the start, and early drop-outs are more often found with less experienced therapists, and among cer- tain patient groups (e.g. people with personality disor- ders, younger people, and people with more serious disorders) [10, 11]. In contrast to research settings, modal treatment duration in general mental health prac- tice is 3–5 sessions [11]. While some 6% of the Dutch yearly receive some form of treatment for mental health problems, 25% receives psychosocial treatment for over a year [12]. Of this group, 13% receives many sessions, resulting in 40% of costs [12]. Apparently, once the re- spective limits of brief treatment have been crossed, for- mal criteria on treatment duration are unavailable [9]. Long-term psychosocial treatment may be expected for people with disorders traditionally seen as severe and ‘chronic’ (e.g. psychotic and bipolar disorders). Yet, also people with other disorders – often seen as ‘common’ and thus less severe or chronic – do receive such long-term treatment [12, 13]. Thus, it is not only the

type or perceived severity of a mental disorder that is relevant to treatment duration. Scientific guidelines for decision making on (dis)con-

tinuation of long-term psychosocial treatment (if, when, and under which conditions) is absent. Mental health services, in the Netherlands as well as the UK, rarely provide clear guidelines to their employees. Financial guidelines for treatment duration exist through the Diagnosis Related Groups system (DRG), yet they may – under universal health coverage like the NHS or com- parable schemes such as in the Netherlands – easily be bypassed through re-classifying, or re-indicating patients [12]. Economic restraints such as general budget cuts, which vary over time and place, may have enormous im- pact on services but in themselves do not offer guide- lines on which treatment should be discontinued at what moment. While patient-related factors may play an important role, cross-service comparisons show major differences in psychosocial treatment duration and re- covery rates. These can only be partly accounted for by case-mix differences – i.e. services treating different types of patients [14]. We hypothesize that, in the absence of unequivocal guidelines, other factors account for varying psy- chosocial treatment duration. These could include profes- sionals’ feelings towards patients [15, 16], patients’ incentives to stop or continue treatment [16–18], patient-professional interactions [19], teams’ group dynamics [20, 21], and other variables shaping decision making on treatment (dis)continu- ation. Interpersonal processes and negotiations in and around mental health services, previously identified as rele- vant to for instance individual patient diagnoses [22], service arrangements [23], and professional decisions [24], are ex- plored in this study. Research into these interpersonal factors is needed to

improve decision making on psychosocial treatment (dis)continuation, since ‘top-down’ national policies such as treatment and financial guidelines do not eliminate variation. This knowledge may result in more insight into the social processes that shape decisions, and pos- sibly result in psychosocial treatment optimization, effi- cient allocation of scarce resources, and more personalized treatment and care. Our research question therefore is: on what grounds, and by which processes,

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do multidisciplinary outpatient teams, individual profes- sionals, and clients decide to either terminate or con- tinue psychosocial treatment which has lasted for more than a year (or 30 sessions)?

Methods Study design We used a qualitative study design, based on Grounded Theory principles [25, 26]. Grounded Theory was chosen since we aimed to understand decision making as a process, and to develop a micro-theory on how decisions are made and which factors influence this process. Since in large mental health services treatment decisions are generally made by multidisciplinary teams during regular case conferences, we observed such meetings in a variety of teams. These observations were complemented with individual interviews, in order to also obtain in-depth insight into the individual perspective of professionals and patients with respect to decision making.

Setting and sample Multidisciplinary teams within three large mental health services in the south east and central Netherlands were invited to participate in the study. These three services had, in previous informal contacts with the research group, voiced capacity problems due to large influx and limited outflow of people in need of services. A total of seven teams was informed about the study, stating its purpose as ‘a study into multidisciplinary team decision making on treatment termination’, involving participant observation and individual interviews. Three teams de- clined participation (due to ‘lack of time’), after having been given background information on previously dis- cussed capacity problems as an incentive for the study. Declining teams matched teams that did participate con- cerning professionals employed and patients targeted. The actual sample consisted of four teams, each with a

specific target population (i.e. mood disorders, personal- ity disorders [two teams], and severe and long-term sub- stance use disorders). The latter team offered time- unlimited assertive outreach community treatment, the other three provided regular (office based) outpatient treatment with a maximum duration of one to 2 years. These teams were selected because of (1) the variation in target groups and treatment type, and (2) their will- ingness to allow a researcher in their case conferences. Since treatment duration of patients with personality disorders is long in the Netherlands [13] and treatment termination therefore apparently difficult, we selected two teams working with this group. In total 29 multidisciplinary case conferences (MCCs)

were observed, lasting between 30 and 120min each. At- tendance varied from 5 to 16 people. A high number of meetings (11) was observed in one particular team, due

to early participation of this team in this study, and due to theoretical sampling choices (i.e. the occurrence of many events relevant to the research question). Also, 12 semi-structured individual interviews were conducted, lasting for 60–90min. Individual professionals were se- lected through participating teams, based on (1) vari- ation in professional background and working experience, and (2) their professional behaviour in team meetings (i.e. notably active or passive in reaching deci- sions on treatment termination). Individual patients were invited by these participating professionals. All pro- fessionals invited for an individual interview were willing to participate. Also, all of the invited patients who had recently ended care, or were going to end care within 2 months, participated. Professionals were invited infor- mally by the researcher, following or preceding team meetings. Patients, after having responded positively to the professional’s invitation, were contacted by phone, informed of the study, and – if willing to participate – invited for a face-to-face meeting with the researcher. All individual interviews took place in the participating services, although patients were offered alternative loca- tions (i.e. in a neutral setting, at their own house, or a location of their choice). During this meeting, oral and written information on the study was provided, and in- formed consent was asked.

Data collection: Team observations The decision-making process of teams was observed through attendance of multidisciplinary case conferences (MCCs), with no interference of the researcher: (1) all verbal communication was recorded on audiotape, (2) all relevant non-verbal information (e.g. the Diagnosis Related Group-status [DRG], of a case which was often visible on paper/ screen but not always verbally an- nounced) was summarized in a notebook, (3) non-verbal team-interactions were also noted. The teams were aware of the researcher’s role and goals, but did not dis- play any difficulties or restraints with it. The researcher had previous working experience in teams such as stud- ied and therefore was able to blend in relatively easily [27]. If possible, immediately after the meeting, ques- tions were asked to individual professionals to clarify un- certainties that remained after the conference (this data was also noted).

Data collection: Individual interviews In congruence with principles of Grounded Theory, in- terviews started with a broad opening question. For pro- fessionals, this was: ‘Can you tell me about how you decide to terminate or continue treatment and which factors influence this decision?’. For clients, this was: ‘Can you tell me about how and by whom the decision was made to terminate treatment, and which factors

Koekkoek et al. BMC Psychiatry (2019) 19:92 Page 3 of 14

influenced this decision?’. Interviewees were encouraged to reply as comprehensively as possible to this opening question in the interview’s initial phase. Next, topics brought forward by the interviewee were explored in more detail. For interview support, a self-developed topic guide (based on the existing literature) was used to elicit details on decision making that were not spontan- eously covered. Topics included: when treatment is ‘good enough’, how to assess this, how to discuss possible termination, how to discuss possible dissenting views be- tween patient and professional, the influence of the pro- fessional, organisational, and financial context on this process, and others. The interviews took place at a loca- tion chosen by the interviewees, were audio recorded and transcribed verbatim.

Data analysis Data collection and analyses were conducted between September 2013 and January 2015, using ATLAS-Ti 7.0 software. Two members of the research team independ- ently coded four interviews. Given the comprehensive- ness of data the from team meetings, resulting in many possible codes and perspectives, we considered coding by two team member followed by discussion necessary for development of a consistent code tree for subsequent analysis. During the research process, while alternating data collection and intermediate analysis, data from pre- vious observations and interviews were used to deepen understanding of the issues mentioned and facilitate ‘theory’ development. For instance: if a professional stated that financial factors explained treatment termin- ation, the researcher explored why other professionals were able to continue treatment while facing equal fi- nancial constraints. We used open, axial, and selective

coding in accordance with Grounded Theory. An ex- ample of an open code is for instance ‘not wanting to quit’, closely resembling the observed text, which was then categorized under ‘reluctance to end treatment’, then under ‘motivation’, and finally became part of the main category ‘patient-related factors’. However, since ‘reluctance to end treatment’ was also found in profes- sionals, this code was also explored and coded in detail using professionals’ quotes. While doing this, we sought for instance in the data for causes and consequences of this reluctance (axial coding). When patient-related fac- tors became part of the core process in this study (Fig. 1), this category was further explored in relation to other categories in the model (selective coding). The research team met each 6–8 weeks to discuss pro-

gress, with particular attention for the researcher’s ob- jectiveness as an observer/analyser. Also, interview techniques and interpersonal style were monitored, intermediate analyses were evaluated and discussed – in- cluding consequences for further data collection and analysis. Emerging categories and their mutual relation- ships were selected and explored, and theoretical sam- pling strategies for following observations and interviews were designed. Theoretical sampling resulted mainly in (1) attending more meetings in one or two specific teams, and (2) inviting specific professionals for individ- ual interviews. Halfway through the observations and interviews, a

preliminary overall model was constructed, existing of five large categories. Also, a tentative model with three successive stages in the decision making process was de- signed. A preliminary core category was identified (‘treatment (dis)continuation depends on interpersonal negotiation’). Finally, an extensive thick description of

Fig. 1 Overview of treatment termination decision making as an interpersonal negotiation

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the study findings was written, with a comprehensive elaboration of the decision making processes placed within the specific contexts in which they occurred. The findings were structured according to the three stages and five descriptive categories. It was discussed and commented on in the research team, resulting in a num- ber of additional questions used in the following obser- vations and interviews to clarify, refine, and expand the categories and the theoretical model (Table 1).

Results In order to answer our research questions we describe two constituent elements of decision making in teams (Table 1): the process through which decision making is prepared and executed, and the substantial factors guid- ing the outcome of decision making. Since these two ele- ments are interdependent, we present them as a scheme (Fig. 1), and in the following sub-sections describe them: (1) sequence of steps that need to be taken before a team discussion on treatment termination takes place, (2) sub- stantial factors/grounds on which decisions may be made, (3) team-related factors on which team decisions may be made, and (4) the actual team decision making process.

1) The process of getting to a discussion of treatment (dis)continuation

Our main finding was that default often is to continue treatment without a clear consideration or discussion – unless either patient, professional or team explicitly initi- ated such discussion. However, before getting there, two previous conditional steps were required. First, patient

and professional need to discuss treatment (dis)continu- ation in their contact. Second, the professional needs to bring up treatment (dis)continuation in the team.

Getting treatment (dis)continuation on the patient- professional agenda We found that treatment (dis)continuation often only became a topic if (1) the patient had a strong incen- tive to discuss it, (2) the professional had a strong in- centive to do so, or (3) there were strong organisational incentives. First, patient incentives were found to be twofold:

1) being reluctant to be in treatment, therefore wish- ing to end treatment, or 2) being satisfied with treat- ment and feeling recovered, therefore wishing to end treatment. The patients’ citations below express a cer- tain discontentment with treatment or the mental health service.

Patient (Interview 3).

I told my CMHN clearly: ‘In July I will quit. And I have also explained what is wrong with mental health care as I see it.

Patient (Interview 11).

Then I thought: this is enough. It [treatment] does not fit me anymore. Actually, I would stay until September because there would be some team evaluation and they wanted to use my story for it. I would have to stay longer for that, but I just quit at my time.

Table 1 Description of participating teams

Team 1 Team 2 Team 3 Team 4

Mental health service 1 2 2 3

Target group (diagnosis) Mood disorders Personality disorders Personality disorders Long term substance use disorders

Treatment duration 1–2 years 1–2 years 1–2 years unlimited

Team age range 29–60 30–64 40–60 30–63

Team size 9 10 7 15

Number of conferences observed 6 11 6 6

Team compositiona

Psychologist/psychotherapist 1 6 3 1

Psychiatrist 1 1 1 1

Physician/doctor 3 1 1

(Community) Mental health nurse/nurse practitioner 3 2 3 3

Social worker 1 5

Other (e.g. occupational therapist, expert by experience) 4 ateam composition varied due to random variation (teams 1–3), and to type of treatment offered by an outreach team (team 4), usually consisting of more nurses, social workers and others, and fewer psychologists

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Second, professional incentives were found to be three- fold: 1) feeling that treatment is unsuccessful, (2) experi- encing the contact with the patient as burdensome, or 3) feeling that treatment has been sufficient and (partly) successful. The latter incentive was rarely acted upon, possible because of the difficulty to judge whether treat- ment was ‘sufficient’ or ‘successful’, or whether the pa- tient was ‘stable’ (see sub-section 2 on this issue). Only one professional clearly stated the need to discuss ter- mination at the start of treatment.

Professional (Interview 9):

‘You have to be clear, from the beginning, that one day treatment will end’

In most cases, however, treatment (dis)continuation was ad-hoc introduced – resulting in a discussion or negoti- ation in which patient and professional did not always readily agree. If so, then the outcome of this negotiation was often that treatment would be continued, or that the professional would ‘discuss it in the team’.

Professional (Interview 8):

Things are easy when someone says ‘okay, let’s quit’. But if someone does not, then you also have an important issue.

Getting treatment (dis)continuation on the team agenda Getting the issue on the professional-team agenda is a second crucial step in the process of decision making. In all settings, final decisions were made in the multidiscip- linary case conference (MCC). Professional and organ- isational incentives are more relevant in this stage, since patients do not generally attend MCCs in person and therefore are unable to directly influence its agenda. Pro- fessional incentives may be threefold. First, unsuccessful or burdensome treatments may be discussed because the professional feels stuck and hopes for good advice or help from colleagues. Second, a (partly) successful treat- ment may be discussed as a formality, in which profes- sionals fulfil their duty to multidisciplinary discuss (dis)continuation – without expecting much discussion since they have already reached an agreement with the patient. Third, situations may be discussed. in which pa- tient and professional disagree whether treatment should be terminated. There appears to be no incentive to discuss a treatment of which a professional (either or not explicitly confirmed by the patient) is certain that it should be continued. In fact, there may be disin- centives to discuss anything at all, as exemplified in the citation below.

Professional [on team support when discussing patients] (Interview 7):

The degree of support depends on the clarity of what I say to or ask of the team. Often, they all start to question me. About what happens to me, how it feels and all that.

The perspective of being forced into an interpersonal discussion with colleagues may act as a disincentive to professionals. Only when there are sufficiently strong in- centives (i.e. problems in the treatment as described above), the professional brings a patient forward. The default setting of not discussing treatment (dis)continu- ation was hardly questioned in teams, with one excep- tion (see sub-section 3 on team factors). Organisational incentives came from the service’s or team’s policies. In our study, discussions in one team were strongly steered by guidelines on treatment duration (formulated by the service), exemplified by a typical MCC in which treat- ment logistics were central, and structural evaluation was standard procedure. When such organisational in- centives were present, individual professionals were (so- cially) obliged to discuss treatment (dis)continuation – when absent, it was up to themselves.

2) Grounds for treatment (dis)continuation

When (dis)continuation becomes an issue in treatment (which is not always the case as we exemplified above), a number of factors may come into consideration. The precise symptomatic condition of the patient, we found, is hardly the primary concern. Although individual pa- tient outcome data were available, they were hardly ex- plicitly used or discussed to make decisions. Patients’ conditions were described only broadly, in terms like: ‘things go better’ or ‘she is stabile’. Given the subjective nature of such statements, they were frequently debated in team discussions. Factors taken into account are sum- marized in Table 2.

Patient and professional factors (2a & 2b) Patient related factors were extracted from both patients’ and professionals’ quotes. In all quotes a certain character- istic is attributed ‘objectively’ to the patient, through which respondents closely align their daily practice with profes- sional and financial guidelines in which patient-related fac- tors are the sole official criteria on which decisions are based. However, we found that patient factors are mirrored by professional factors that are absent from official docu- ments. For instance, the ‘stability’ that is often desired in pa- tient by professionals, has a professional counterpart that is much less objective. When the patient is ‘stable’, this often

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means that the professional has a certain amount of ‘trust’ that the patient will cope with future drawbacks, without relapsing in a crisis. The same applies to ‘risk’, that is sug- gested to be an objective patient factor that can reliably be assessed, yet appears closely related to professionals’ fear of ‘things going wrong’. Opposed to ‘trust’ (that the patient will cope), there may be ‘fear’ in the professional that things will go wrong – thus resulting in high ‘risk’. Without shared definitions or objective measures of ‘stability’ and ‘risk’, it is highly dependent on the individual professional whether ‘fear’ or ‘trust’ prevails – thus making the patient’s perceived condition foremost an issue of the professional’s personal assessment. The same mirroring applies to the ‘motivation’ and

‘reward’-pair: motivation is considered a patient charac- teristic, that when it is high (which it preferably is), pro- fessionals tend to ‘reward’ with more treatment – as if this was a gift to offer people who strongly want

treatment. When motivation is low or variable, this ‘gift of therapy’ is much less likely – professionals do not eas- ily ‘reward’ the patient, or even push him or her away. The final pair, ‘hope’ and ‘perspective’, may reinforce the ‘rewarding process’. If a patient is optimistic about im- provement, and possibly puts pressure on the profes- sional to keep working towards it, this perspective may dominate – even when the professional believes treat- ment will be of no or limited benefit. As such, ‘objective’ patients characteristics are mixed up with professionals’ characteristics, and become interpersonally constructed factors in which ‘objectivity’ is hard to maintain.

Organisational and environmental factors (2c & 2d) Organisational and environmental factors also are strongly intertwined (Table 3). The internal capacity of the mental health service may influence treatment (dis)- continuation. For example: when there are many people

Table 2 Overview of patient-related and professional-related factors in treatment (dis)continuation decisions

Patient-related factors Citation Professional-related factors Citation

Stability Degree to which the patient functions without crisis for at least some time, and the ability to cope effectively when problems arise or stress increases.

‘I can stop because I feel more stable and I now have a steady relationship with someone’ (P, Interview3) ‘First work on stabilization (…). Later we can discuss termination, but first we need to relieve pressure’ (PSA, TeamMeeeting12) ‘She can come to see me if she feels that will keep her stable’ (CMHN, TeamMeeeting5)

Trust Degree to which the professional believes that the patient will be able to cope with future difficulties

‘Too much hassle to terminate treatment, she will definitely be back if we do’ (CMHN, TeamMeeeting20)

Risk Degree to which there is: 1) danger to the patient and/or others 2) other risk: relapse, deterioration

‘It feels sound. They can let me go now, I can go on. By myself I mean, without them’ (P, Interview11) ‘We are not done with him until the threat becomes less’ (SW, TeamMeeeting6) ‘No termination! He is a real loony, dangerous, much drug use in the past’ (SW, TeamMeeeting17)

Fear The feeling that ‘things may go wrong’ with the patient

A professional (non-psychologist) on others: ‘Psychologist are chickens, they never dare to terminate treatment’ (CMHN, Interview5)

Motivation Degree to which patient is willing and able to work hard to reach improvement

‘He is now motivated but that can easily turn around, and then I don’t know if we should continue’ (PSO, TeamMeeeting15) ‘As long as he is so unmanageable we cannot discuss anything with him. We should stop’ (PSO, TeamMeeeting11)

Reward Degree to which the professional feels that the patient deserves another chance in treatment

‘This lady does not fit in my treatment program but she is nice broad and I’ll give her another chance’ (CMHN, TeamMeeeting23 ‘She is avoidant, last November we agreed that she would call me but she has not. So it would be best to end care now’ (PSA, TeamMeeeting14)

Hope Degree to which the patient has hope that treatment will result in improvement

‘I have to tell him that he cannot expect anything of us anymore. That the problems lie elsewhere, that he has to accept things as they are. But he does not seem open to that’ (PSO, Interview4) ‘It will not go away, but I have learnt to deal with that. In that I have succeeded’ (P, Interview11)

Perspective Degree to which the professional beliefs that treatment will result in improvement

‘He does not agree with us that further treatment will not help. He really wants to quit using substances. So we are going to try another treatment and see if it works’ (physician, TeamMeeeting2)

P: patient PSO: psychologist PSA: psychiatrist CMHN: community mental health nurse SW: social worker

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on the wait list, the internal capacity is limited. Yet, if a new treatment program is opened, or the team’s capacity is extended, the internal capacity is relatively large. This likewise applies to treatment options outside the own service, and thus external capacity in the local or re- gional network may shape treatment (dis)continuation – if available, patients may be referred elsewhere. Financial incentives influence this process in covert ways: since mental health services do not receive reimbursement per professional, but only per patient contact, it is highly un- attractive to have ‘too few patients’. Professionals, know- ing that too few contacts will make themselves and the service vulnerable, may make treatment (dis)continu- ation decisions based on financial incentives. For in- stance: by terminating treatment of patients that often do not show up or by continuing treatment of compli- ant, loyal and ‘easy’ patients. The final two factors from our overview (Table 3) are resistance and support. Pro- fessionals may want to terminate treatment when they consider the patient sufficiently stable and not present- ing risk (see Table 2). Yet if others disagree, resistance (possible followed by hassle, complaints, and legal ac- tion) may prevent termination. This interdependent principle also works the other way around: if social sup- port for the patient is abundant, professionals more eas- ily decide to discontinue treatment.

The influence of substantial factors on decision making We identified a number of factors implicitly influencing treatment (dis)continuation. However they hardly expli- citly informed the decision making process. There were

no clear indicators of ‘stability’, or ‘risk’ and therefore ‘trust’ and ‘fear’ become important factors influencing the patient-related criteria, and thus possible decisions. Likewise, external guidelines on what is sufficient treat- ment (provided by the organisation), or a socially accept- able outcome (provided by the environment) were absent, and therefore decisions appeared mainly to be based on supply/demand-logistics or societal response.

3) Team-related factors on which team decisions may be made

In the fourth and final sub-section, we will show how decisions are made in teams, but first we need to de- scribe team factors that may influence team decision making (Table 4). Structural elements, like frequency and duration, varied somewhat among teams but did not appear relevant to the decision making process. For ex- ample, in a longer meeting more patients could be dis- cussed, but decision making happened relatively independent of available time. Cultural factors were of larger importance, therefore we discuss these in detail below.

Type of meeting Three of the four MCCs were identified as ‘unstruc- tured’, meaning that there were no pre-set time limits, or predetermined number of cases. As such, one case could be discussed at length, while another case received little or no attention. This was relevant since treatment (dis)- continuation may thus not be discussed, in spite of the

Table 3 Overview of organisation-related and environment-related factors in treatment (dis)continuation decisionsa

Organisation-related factors

Citation Environment-related factors Citation

Internal capacity The degree to which treatment options are available within the service

‘She has not shown up in our program, the DRG has ended and we are not going to open a new one. So let’s quit’ (PSO, TeamMeeeting4)

External capacity The degree to which treatment options are available outside the service

‘This is highly complex care. If the patient has five contacts per year we may keep him stable. This does not have to be in our service – if the primary care physician has a mental health nurse it may be done there’ (PSA, TeamMeeeting7)

Financial incentives The degree to which financial reimbursement of services influences decisions

‘Limitations play no role. If there is still is a need for treatment, another DRG [financial treatment episode] is started’ (CMHN, Interview8)

Support The degree to which the patient has social support, or is able to organize practical support

‘The biggest problem was her housing. Once she got another house, things were already a lot better. When her financial situation got better also, we were able to terminate treatment’ (SW, TeamMeeeting8)

Resistance The degree to which others (e.g. family, neighbours, other institutions) are willing to care for the patient

‘This is an annoying guy but if we terminate treatment there will be trouble that will reflect on us’ (CMHN, TeamMeeeting11)

aPlease note that not all cells are filled, since in the analysis not every factor was found to apply to both the organisation and the environment

Koekkoek et al. BMC Psychiatry (2019) 19:92 Page 8 of 14

professional putting it on the agenda. A central issue in all teams was the division of scarce time between ‘regu- lar’ and ‘urgent’ patients. The first group had to be dis- cussed every 6 months, according to protocol, the latter group required immediate attention due to a variety of reasons (e.g. a patient’s crisis, a deadline for referral, or some other issue). Irrespective of whether urgent pa- tients were discussed first or last, their ‘urgency’ over- shadowed the discussion of regular patients. In all teams, discussion of regular patients was often post- poned to the next meeting. This process resulted in structurally devoting more time to urgent patients (for whom treatment termination is not an option due to their urgency), and less time to regular patients (for whom treatment termination may be an option). The one team in which meetings were more structured did in fact discuss urgent patients last, and succeeded more often in discussing treatment (dis)continuation of regular patients.

Type of chairing The chairperson had an important role in discussions and decision making. In three out of four teams the chairper- son was the team leader, in one it was a (monthly) rotating team member. Differences were substantial: some chair- persons confined themselves to ‘technical’ chairing, some participated actively in decision-making. The way profes- sionals introduced and discussed patient situations varied across teams. However, a lengthy introduction was default and often professionals engaged in long conversations in which the outcome of the discussion moved out of focus. Also, a clear question for the team was hardly verbalized. Sometimes, (technical) chairs intervened to structure these discussions, at times resulting in clearer decision making – but not in all cases.

Presence of team members The degree to which professionals were present varied. In one team, professionals were present only when ‘their’ patients were discussed while solely the chairperson and

the team’s psychiatrist were constantly present. In an- other team, the intention was to have all members present all the time, yet professionals ‘on call’ walked in and out repeatedly. In such an in-and-out structure, dis- cussions could be repetitive and decision making was often postponed due to the absence of one or more team members. Thus, while planned ‘absence’ appeared to be helpful, ad-hoc absence was not helpful to discussions on treatment (dis)continuation.

Atmosphere The last element that influenced content and form of dis- cussions, here called atmosphere, was closely connected to group dynamics. The interpersonal relationships within the team interacted with all of the aforementioned cultural variables. Some team members were more influential in discussions, regardless of their formal position in the team (e.g. as responsible clinician, chair, or team leader). The at- mosphere in some teams appeared more open and warm, with mutual interest in one another, including personal is- sues. Other teams were more strict and business-like, with little room for personal contact. A business-like atmos- phere, however, did not necessarily result in a more fo- cussed discussion of treatment (dis)continuation.

4) Team decision making on treatment (dis)continuation

The team decision making process may be seen as the ultimate outcome of the process of getting to decision making (sub-section 1), substantial factors (sub-section 2), and team factors (sub-section 3). Here, we divide de- cision making in process and outcome.

Process of team decision making Earlier we described the somewhat chaotic way patient cases are introduced, and how urgent cases may over- shadow regular cases. This unstructured way of discuss- ing was reinforced by the habit of team members to

Table 4 Team related factors: structural and cultural elements of team meetings

Team 1 2 3 4

Structural elements

Frequency weekly weekly Weekly weekly

Duration 1 h 1.5 h 2 × 1 hour 1.5 h

Cultural elements

Type of meeting ‘structured’ ‘unstructured’ ‘unstructured’ ‘unstructured’

Urgent cases last first first last

Type of chairing technical substantial substantial substantial

Presence of team members in-out all all (in theory), few (in reality) all

Atmosphere critical, controlling, case-focussed

supportive, permissive, case-focussed

supportive, permissive, team-focussed

supportive, permissive, case-focussed

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frequently ask for clarification. Their lack of familiarity with the patient apparently urged them to request more details to understand the situation. This focus on detail often prevented an outcome-focused discussion of the situation – moving decision making out of sight. The de- gree to which a focused (dis)continuation discussion, in- stead of just a full patient history taking, took place, depended on some factors. The preparation of team mem- bers: the more they were informed beforehand, the more substantial the discussion. The familiarity of professionals with the patient: the more familiar, the more substantial. And the number of professionals familiar with the patient: the more professionals familiar, the more substantial. In none of the teams decisions were made by the en-

tire group, this mostly happened in groups of two to four professionals. Formal decision rules, e.g. that at least a certain number of team members had to consent on a decision, were not observed or expressed in any team. Clear decisions on (dis)continuation were rare, often there was no unequivocal conclusion. A decision was most likely when the introducing professional had a strong conviction that treatment should be terminated. However, even when a professional introduced a clear intention, other team members moved the discussion in various directions (example 1).

Example 1: professional wants to terminate treatment, yet the patient does not

(Team meeting 11)

PSO (psychologist): This lady is addicted to mental health services

PSA (psychiatrist): Let’s shake her hand, tell her how well she is doing, and terminate treatment as soon as possible

PSO: Yes, indeed

CMHN (community mental health nurse) suggests: She can come see me if she believes that will keep her stable

PSO2: Isn’t this a good fit for a social worker?

PSO: All this lady does, is consume care

PSA: Her demand ‘stay with me’ seems real, can we really terminate? Maybe a careful referral to social work?

PSO: I don’t know, I think we should end specialized services

PSA: Why not consult with her primary care physician? If they have a CMHN in their practice, she could go there for a couple of times a year.

PSO: I do not believe she will accept that, she has many problems but does not want to switch professionals again

PSA: Please check if there is a CMHN in the general practice, if not she remains with our own CMHN

In this example, we see that the psychologist’s perspec- tive (treatment should be terminated) is initially backed up by the team’s psychiatrist, until the option of another type of care – by a community mental health nurse (CMHN) or social worker – is introduced. Then, the psychiatrist starts to express doubts, introduces a CMHN as an option, and concludes that if no such care is available the patient should stay in specialized services – al- beit with another professional than the psychologist who introduced the case. This example is prototypical for many multidisciplinary meetings: individual and organizational disincentives to terminate treatment are collectively rein- forced. Almost always, one or more of the present profes- sionals hopes for a positive outcome, or has a suggestion for alternative treatment, regardless of previous attempts. Given the fact that meetings are often unstructured, profes- sionals that verbalize ‘hope for improvement’ may have an advantage over those that verbalize ‘enough is enough’ – which is more negative and therefore less socially accepted. In almost all meetings, decisions were based on the loudest majority in the team, as well as on other factors unrelated to the patient’s condition (e.g. the internal or external treat- ment capacity). Even when the discussion was limited to two persons

(example 2), it appeared to be difficult to refrain from al- ternative options that would keep a patient in treatment. In fact, the absence of another team member involved in treatment, may prevent the decision to terminate.

Example 2: professional introduces patient to discuss uncertainty about (dis)continuation

CMHN: I should make a new appointment with him but I don’t know if it is still necessary

PSA: Maybe treatment can be terminated?

CMHN: I feel that now he has this structure in life, he may possibly start going to school. I have suggested this and he liked the idea, he likes to be in charge again.

PSA: We need to check this with his doctor here [a psychiatrist-trainee, not present at the meeting]

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CMHN: I am not sure about his medication? [after checking this in the file] Medication is already prescribed by his primary care physician, not by our doctor. Also he now knows what his psychosocial problems are, and since…

PSA: If he does not want to terminate treatment, we can still refer him to the CMHN in the primary care practice? Or refer elsewhere?

CMHN: I feel he is ready to terminate treatment

PSA: Will you discuss it with him? He can see our doctor once more for his meds, although I am not sure if that is even necessary

CMHN: I strongly suggest to terminate treatment now

PSA: Or could maybe you and the doctor do it altogether? That would be most…

CMHN: That will push it forward for another four weeks [doctor is currently unavailable]

PSA: But are you able to meet him [patient] before his appointment with her [the doctor]?

CMHN: Yes

PSA: Our doctor is on holiday, otherwise she could have joined you

CMHN: She will most certainly agree

PSA: So, a final meeting, followed by a discharge letter to the primary care physician

In example 2, larger group dynamics were limited but there seemed a reluctance in the team’s psychiatrist to terminate treatment during the meeting. While the CMHN became more convinced of the need to termin- ate treatment, the psychiatrist opted for a termination under the condition that the team’s doctor would see the patient one more time. Thus, while the CMHN started hesitatingly (‘I don’t know’) and the psychiatrist started rather firmly (‘Maybe treatment can be terminated’), they ended in opposite positions with the CMHN con- vinced (‘I strongly suggest to terminate treatment now’) and the psychiatrist in doubt.

Outcome of team decision making In both discussions, as in many others observed, the substantive criteria (Table 2) were not explicitly used. In- stead, the environmental criteria (Table 3), specifically

the availability of treatment by another professional, were dominant. There appeared an inclination towards treatment continuation – even when the treating profes- sional explicitly argued to discontinue. Interestingly, this inclination could not easily be ascribed to professionals being fundamentally unwilling to discontinue treatment since – as exemplified in both examples – professionals rapidly changed their perspective during a team discussion. Instead, decision making is an interpersonal negoti-

ation: different perspectives are discussed and profes- sionals may change their perspective depending on who are present during the meeting, the respective positions of these professionals in the team, and the group coali- tions made. Regardless, a decision easily gravitates towards treatment continuation. Continuation is default – discon- tinuation requires a strong determination. Our main find- ing, and core category of the Grounded Theory-process, is that treatment (dis)continuation depends more on inter- personal negotiation than on objective weighing of cri- teria, with treatment continuation as the default outcome. Some criteria are available, yet they are poorly measured and hardly explicitly used. More than one negotiation needs to be navigated before (dis)continuation is properly discussed in the MCC – once that happens the outcome appears to be rather random.

Discussion Our main research question was on what grounds, and by which processes, multidisciplinary outpatient teams, indi- vidual professionals, and clients decide to (dis)continue long-term psychosocial treatment. This study yielded many variables shaping decision making on treatment (dis)continuation. However, our main finding is that treat- ment (dis)continuation depends more on interpersonal negotiation than on objective appraisal of criteria, with treatment continuation as the default outcome. This nego- tiation takes place on the patient-professional level, on the agenda setting of the professional-team level, and in the eventual professional-team discussion.

Results Looking at our results, we cannot but conclude that discuss- ing psychosocial treatment (dis)continuation in secondary mental health services is a complex, unstructured activity. Professionals find it difficult to discuss with patients, unless the patient brings it up. Professionals find it difficult to dis- cuss it in their teams, and teams find it difficult to discuss it in a structured way, to reach a decision – and if they decide at all – to discontinue treatment. We discuss four potential explanations. First, in long-term psychosocial treatment there are no

golden rules on either outcome or process. If and when a patient is sufficiently improved or recovered (outcome) is unclear since often symptoms remain. Yet, even when

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a person is ‘objectively’ recovered, this does not mean that he or she feels as such [28, 29] ‘Recovery’ is a very personal and multi-interpretable issue that (thus far) cannot be objectively captured. If and when sufficient treatment has been offered (process) is also unclear since there is no prescription on treatment duration. It is open to debate whether ‘hard’ measurement of outcome is im- possible in long-term psychosocial treatment. Although not used in the services in our sample, generic outcome measurements (e.g. Outcome Rating Scale [30]) have shown to be useful in measuring progress – and possible in planning (dis)continuation. Second, when objectivity is absent and much is uncer-

tain, professionals rely on experience (their own clinical judgment) to make decisions. Professional clinical judg- ment, however, is potentially unreliable, especially re- garding risk assessment [31]. A cognitive professional bias may be present (the ‘insider-perspective’ [32]), by which the patient appears very ill to the professional during sessions, but in fact may function relatively well outside treatment– unknown to the professional. Studies found that professionals overestimate risk and underesti- mate strengths in patients [33, 34]. Low-frequent but high-impact incidents with patients, receiving high media-coverage, may reinforce risk-averseness. In gen- eral, in the absence of ‘objective’ decision making ‘tech- nology’, professionals may (unconsciously) use heuristics to make decisions – consisting of core beliefs about people with mental illness, professional responsibility, and notions about care and risk. We have touched on some of these (e.g. trust and fear; see Table 2) but more may be at play [35]. Third, another strategy to deal with uncertainty is to

rely on consensus. Consensus may be sought with the patient or within the team. When consensus with the patient is found – implicitly or explicitly – there is no problem: both want to end, or both want to continue treatment. When this consensus is however not found, the professional may try to find consensus in the team. Yet, as we have seen, professionals do hardly ever reach consensus, even when strong argument are made. Underlying beliefs and possible risk-averseness observed in individual professionals, may also apply to teams dur- ing discussions. Therefore it is unlikely to reach consen- sus on changing standing practice – and treatment continuation thus is the default outcome. Fourth, the treatment environment hardly favours

changing default settings. Patients’ complaints about – in their view – prematurely terminated treatments are undesirable from the organisation’s perspective. Also, a rapid turnover of patients due to short-term treatment is more labour-intensive (more assessing and reporting is re- quired) and financially risky (empty slots in the profes- sional’s agenda are costly). In general, the multidisciplinary

decisional structure of many organisations does not support clear decision making (process) and changing the status quo (outcome) [36, 37].

Strengths and weaknesses This study is one of few empirical studies into decision making on long-term psychosocial treatment (dis)con- tinuation so far. Strong points are the variation in men- tal health services (three), teams (four), and professional backgrounds (> 10). A substantial number of MCC’s was attended (29), and participants were interviewed (12). However, few clients were eligible – which may have ob- scured full understanding of the patient-professional interaction. Also, one of the so-called ‘patient-related factors’ (i.e. motivation) in Table 2 is not as such de- scribed by patients, but only by professionals. In terms of qualitative research rigour [38], we focused

on credibility, transferability, dependability, and confirm- ability. By interviewing multiple key informants, and using both individuals and teams as data sources, data triangulation was applied. Investigator triangulation was applied in the research team, method triangulation was applied by using both observations and interviews. Debriefing with peers took place within the research group, and intermediate results were discussed in two expert workshops – with professionals and patients out- side the study. Member checks were performed to en- sure the researcher’s proper understanding of answers, by giving summaries during interviews, and by request- ing additional information or explanation from team members following team observations. Careful selection of the research setting took place, focusing on teams in which the process of decision making was both relevant and frequent. Stability of the data over conditions was assessed by using four different teams/settings as data sources. Although differences between teams were noted, the main process described was found in all teams. A detailed log book, consisting of memo’s about data collection, analysis, and interpretation, was kept. The generalizability of the results across health care sys-

tems outside of the Netherlands is an open question. While decision making on psychosocial treatment (dis)continu- ation appears difficult in many systems and countries, local financial constraints may guide decision making in different ways than encountered in this Netherlands-based study. However, in nations with universal health care coverage, e.g. the UK’s National Health Services, no guidelines on treat- ment discontinuation exist and in times of larger budgets, community mental health treatment may continue until the person is referred to another team, or back to primary care.

Implications for practice Although long-term psychosocial treatment is not the standard for most people using mental health services, it

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is for many – and often its termination is complicated. Professionals’ reliance on ‘objective’ outcomes and profes- sional consensus appear unwarranted – we found evidence only for an interpersonal negotiation, or construction, of de- cision making. An early dialogue between patient and pro- fessional on goal, course, and termination of psychosocial treatment may be very helpful to improve mutual awareness of the process-like character of treatment, to keep overly high expectations at bay, and to foster a mutual responsibil- ity for process and outcome. Such procedures are effective in facilitating treatment termination in situation of limited time (brief therapy) or money (health care systems without long-term coverage), and may also be helpful in situations in which psychosocial treatment should or can be longer. When patient and professional make the treatment process a truly mutual, interpersonal undertaking, decision making may also be more mutual – and less become a distant, ob- jectified, and consensus-based team task.

Conclusions Clear decision making, and terminating treatment when appropriate, is systematically hampered within mental health services. Since treatment continuation is the more easy default option, treatment termination requires a skilful and determined navigation of at least three inter- personal negotiations. Given services’ scarce means, peo- ple’s large demands for help, and patients’ unused potential autonomy, it may be beneficial to invest in de- cision making skills and procedures – both human and economic profits may be substantial.

Abbreviations CMHN: Community Mental Health Nurse; DRG: Diagnosis Related Groups; MCC: Multidisciplinary Case Conference; PSA: Psychiatrist; PSO: Psychologist

Acknowledgements We thank participating professionals and clients for their openness to allow a researcher access to their meetings (professionals), and personal treatment histories (clients).

Funding This study was funded by a SIA RAAK PRO-grant (number PRO-3-05) to Dr. B. Koekkoek (Principal Investigator), and additional funding from the HAN Uni- versity of Applied Sciences. None of these funding bodies had any interfer- ence with process and outcome of the study reported on here.

Availability of data and materials The datasets generated and/or analysed during the current study are not publicly available due to local institutional policies but are available from the corresponding author on reasonable request.

Authors’ contributions BK designed the study, supervised data collection and analysis, and drafted the manuscript. BvM co-designed the study, supervised data analysis, and co-wrote the manuscript. AP collected data and started data analysis. GH co- designed the study, supervised data analysis, and co-wrote the manuscript. All authors read and approved the final manuscript.

Ethics approval and consent to participate This project was reviewed by the respective Institutional Review Boards of the participating mental health services (Pro Persona, IrisZorg and GGZ Oost

Brabant), and permission was granted. Informed consent was provided by all individual participants on paper, and verbally by all participating teams.

Consent for publication Not applicable.

Competing interests The authors declare that they have no competing interests.

Publisher’s Note Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.

Author details 1HAN University of Applied Sciences, Research Group Social Psychiatry & Mental Health Nursing, Kapittelweg 33, 6525 EJ Nijmegen, The Netherlands. 2Inholland University of Applied Sciences, Amsterdam, The Netherlands. 3Department of Psychiatry, Amsterdam Public Health research institute, Amsterdam UMC, VU Amsterdam, Amsterdam, The Netherlands. 4Parnassia Psychiatric Institute, The Hague, The Netherlands. 5GGZ-VS, Academy for Masters in Advanced Nursing Practice, Utrecht, The Netherlands. 6Research Group Clinical Psychology, Radboud University, Nijmegen, The Netherlands. 7Pro Persona Mental Health Services, Wolfheze, The Netherlands.

Received: 30 May 2018 Accepted: 4 March 2019

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  • Abstract
    • Background
    • Methods
    • Results
    • Conclusion
  • Background
  • Methods
    • Study design
    • Setting and sample
    • Data collection: Team observations
    • Data collection: Individual interviews
    • Data analysis
  • Results
    • Getting treatment (dis)continuation on the patient-professional agenda
    • Getting treatment (dis)continuation on the team agenda
    • Patient and professional factors (2a & 2b)
    • Organisational and environmental factors (2c & 2d)
    • The influence of substantial factors on decision making
      • Type of meeting
      • Type of chairing
      • Presence of team members
      • Atmosphere
    • Process of team decision making
    • Outcome of team decision making
  • Discussion
    • Results
    • Strengths and weaknesses
    • Implications for practice
  • Conclusions
  • Abbreviations
  • Acknowledgements
  • Funding
  • Availability of data and materials
  • Authors’ contributions
  • Ethics approval and consent to participate
  • Consent for publication
  • Competing interests
  • Publisher’s Note
  • Author details
  • References

Golden Rules for U.S. Investors to Follow in Dispute Resolution Negotiations with a Foreign State or State Entity

72 M A Y / J U L Y 2 0 0 8

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What corporate counsel should know to negotiate a settlement with a host state.

10

Investors to Follow in Dispute Foreign State or State Entity

By Arif H. Ali and Baiju S. Vasani

Mr. Ali is co-chair of Crowell & Moring LLP’s International Dispute Resolution Group in

Washington, D.C. He is also an adjunct professor of law at

Georgetown University.

Mr. Vasani serves as counsel at Crowell & Moring LLP’s

International Dispute Resolution Group, resident in the Washington,

D.C. and London offices. Both authors have substantial

experience in negotiating and settling disputes with foreign

governments and state entities. More information about the

authors can be found at www.crowell.com.

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D I S P U T E R E S O L U T I O N J O U R N A L 73

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when a deal turns sour, the goal remains the same regardless of the country of incorporation— to settle the dispute on the best possible financial terms. (A sec- ondary goal might be to main- tain the ongoing business rela- tionship, but again, even the motivating factor underlying this goal is monetary.) For pub- licly traded companies, the financial goal is especially criti- cal because, at the end of the day, it is the bottom line and the all-important end-of-year ac- counts to shareholders that is the lodestar of their actions.

It would be inaccurate to say that government entities are not also motivated by financial ob- jectives to some extent. But when a foreign state entity is involved in a dispute with a private com- mercial enterprise, commercial considerations typically are not its primary interest. Gov- ernments have no shareholders. Their actions are more often influenced by national public policies, economic development goals, political objectives, lobbyists, non-governmental organizations (NGOs), multilateral institutional lending re- quirements, world trade issues, regional public policy, media reaction inside and outside of the country, and other such factors. All of the forego- ing could be sharply exacerbated during election years.

Foreign host governments have enormous power over the operations of foreign investments within their borders. To maximize the prospects for a successful negotiation of a dispute arising out of a foreign investment, U.S. corporate coun- sel should be aware of the following rules.

Rule 1: Know Thy Enemy The first things to understand are the formal

and informal ties that the entity with which the

U.S. company entered into a contract has to the state. It is also vital to understand the law governing the entity’s activities. With this information, corpo- rate counsel must determine whether the entity is legally, financially, and logistically inde- pendent from the state. This means understanding the “su- pervisory” relationships between those who run the entity and those who run the state itself.

If the contracting entity is not independent from the state, it may be more productive to ne- gotiate directly with the people who run the state—i.e., the offi- cials who are most likely have the final say on a possible settlement.

Negotiations between disput- ing private enterprises are, by and large, conducted against the

background of their commercial relationship. However, the relationship between a host state and a private investor, from the host govern- ment’s point of view, is not simply commercial. Thus, to negotiate effectively, the investor must first learn what makes the host government tick. It must acquire a sophisticated appreciation of the macro-political, economic and policy issues that are likely to condition the government’s negotiating stance. For example, the investor should try to ascertain what would convince the government to settle the dispute. What are the strongest points to emphasize in a meeting with government officials? What issues should the investor’s negotiators stay away from? The investor should investigate the legislative, execu- tive or other approvals that must be obtained for a settlement to take place. Also critical to learn is who within the host government will authorize the settlement.

Finding out this critical information before even approaching the government requires peo-

Never under- estimate the negotiating

skills of host government representa-

tives, especially those from the

so-called developing

world.

Unlike other generic writings on how to resolve business dis-putes, we offer 10 “golden rules” that U.S. corporate coun-sel should follow when they engage in settlement negotia- tions of an investment dispute with a foreign sovereign or state enti- ty. Negotiating with foreign governments can be challenging because they generally do not share the same objectives as private companies. Private enterprises are usually driven by one goal: making money. So

D I S P U T E R E S O L U T I O N J O U R N A L 75

ple “on the ground” who are in the know. This usually means retaining well-connected local legal counsel or government consultants in the host state’s jurisdiction to mine for information that might predict the government’s likely dis- pute resolution strategy.

Rule 2: Know Thy Law Many U.S. lawyers think about contracts only

within a common law construct, even those entered into with a party from a civil law jurisdic- tion. This bias can get a U.S. client into trouble.

Many commercial, construction and invest- ment contracts entered into with a foreign state or state entity are governed by the state’s local law. Not infrequently, these laws are based on civil law systems and cannot be interpreted using a com- mon law paradigm. For instance, the common law seeks to use only the “four corners” of the con- tract to determine the parties’ intent, while the civil law encourages the use of the parties’ negoti- ating history to interpret their intent. Also in the common law, the duty of good faith and fair deal- ing are, if anything, subsidiary implied terms of the contract. But in the civil law these concepts are an express part of the written civil code and play a front and center role in any contract inter- pretation. Similarly, under the common law, the theory of estoppel requires reasonable reliance by the affected party in order to come into operation. Under the civil law, reliance is not a strict requirement of estoppel theory (i.e., venire contra factum proprium non valet or doctrina de los actos pro- pios). Thus, dissonances that could affect the dis- pute—even those initially perceived to be minor—must be fully understood in order to resolve commercial or factual differences in a dis- pute with a host government.

An investor in another country’s jurisdiction should also understand how state sov- ereignty is interpreted in the host country. In certain older civil law systems, the principle of state sovereignty purports to grant the state certain extraordinary rights, privileges and powers through ad- ministrative and public law principles. While newer laws may have been introduced in the jurisdiction to limit the state’s role in the nation’s economy and commerce, this does not mean that old-line bureaucrats and politicians have forgotten the ingrained

philosophy of state sovereignty. Therefore, U.S. corporate counsel should make sure that lawyers on the company’s negotiating team are versed in the common law and civil law systems, as well as in the host jurisdiction’s administrative law so that they can speak the host state’s legal language to government representatives and legal advisers.

Rule 3: Hold Your Horses A universal rule of statecraft is that govern-

ments move slowly. This puts a damper on the expectations of private enterprises (particularly U.S. companies) that expect to negotiate a settle- ment right away.

A state party can exploit the disharmony between the hare and the tortoise. All it has to do is slow down negotiations and take advantage of the short time left to negotiate a smaller settle- ment. A few savvy foreign governments have used this ploy to their advantage. They find out how long the arriving negotiators for the U.S. party plan to be in the host country. Usually, negotia- tors want to be back home with their families “by the weekend.” Accordingly, the government rep- resentatives fill up some of the weekdays with sightseeing and friendly, courtesy meetings with non-influential, lower-level government stew- ards. Eventually, often shortly before the nego- tiators are scheduled to leave for the airport, a negotiation session finally takes place with a high level official, who apologizes on account of ur- gent business, and then asks, “Do you think we can settle this now, or shall we resume on Mon- day?” Because their bosses are eager for immedi- ate results, the negotiators (who are not keen to stay the weekend) may be disposed to accept less favorable settlement terms just to get home with

something concrete in hand. The lesson here is not to

withhold travel information from foreign government offi- cials. It is that as much as company executives may de- sire a quick settlement, this is unlikely to occur. It will usual- ly take several trips to the host state over the course of a few months and frequent meetings with different host govern- ment officials (sometimes in the same ministry, most of whom will appear sympathetic but fail to take any positive steps). It may also require local lobbying efforts, the good offices of the local U.S. embassy, and possibly the

In many countries, no government

official, no matter how senior, will be willing to make a decision to settle

an investment dispute for a

particular sum.

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commencement of international arbitration or a court proceeding to demonstrate a serious intent on the part of the investor, or to force the gov- ernment’s hand. (However, before doing so, please read Rule 9 below on playing the arbitra- tion/litigation card prudently.)

Settling an investment dispute with a host for- eign government requires immense patience on the part of a U.S. investor. And it is the need for patience that all corporate counsels would be wise to impart to their business clients no matter how loathe the clients are to hear it.

Rule 4: Underestimate at Your Peril Never underestimate the negotiating skills of

host government representatives, especially those from the so-called developing world.

Companies from industrialized nations tend to feel superior to governments of developing coun- tries. This is a mistake because in terms of raw negotiation technique and strategy, there is no disparity between the negotiators for the two parties. Negotiators from a developing country might even have a leg up because they grew up in a country with a tradition of bartering and nego- tiating stretching back centuries. Many are ex- perts at getting a favorable deal. Not only that, many negotiators outside the United States have degrees from leading colleges in the United States or Western Europe. In addition, they also have proved their survival skills by reaching the positions they hold.

An example that comes to mind occurred a few years ago. Representatives of a U.S. company and a host government of a Latin American country negotiated a $20 million dispute over four days, agreeing in principle to a settlement of $8 mil- lion. The parties agreed to come in the next morning to execute a written agreement. When the U.S. company’s representatives arrived at the government’s offices the next day, they were greeted by new government officials who in- formed them that “yesterday’s” government rep-

resentatives had “no authority” to conclude a deal. As a result, negotiations had to be com- menced all over again. With this ploy, the gov- ernment significantly lowered the ceiling on a settlement to less than $8 million. Within hours of the recommenced negotiations, the host gov- ernment proposed a $2 million settlement.

So corporate counsel should recall this story and always advise their business clients not to underestimate the guile of representatives from host governments and to be on the lookout for seemingly innocent tactics that are part of the host government’s negotiating strategy.

Rule 5: Only Negotiate with the Person Carrying the Checkbook and Pen

The foregoing anecdote demonstrates that it is not only prudent, it is essential for the U.S. in- vestor to find out whether the host government’s representatives in the negotiations have real authority to approve a settlement of the dispute and sign an agreement attesting to the settlement as an authorized government agent.

This is more difficult than it may at first ap- pear. In many countries, no government official, no matter how senior, will be willing to make a decision to settle an investment dispute for a par- ticular sum. Doing so can be politically risky. For example, if the administration changes hands, that official could be prosecuted for his or her role in settling a case with a foreign investor, leading to fines and even imprisonment. As a result, government officials often require a com- pelling justification that is likely to be accepted by both current and subsequent administrations before entering into a settlement agreement. Sometimes, it may be sufficient to have strategic pressure placed on the host state by U.S. trade representatives or consulate officials, or even by commencing an arbitration before the Inter- national Centre for Settlement of Investment Disputes. ICSID proceedings are public in that tribunal decisions are published. These decisions

As part of any concerted negotiation strategy, corporate counsel should develop with outside counsel

and the client’s consultants in the host country a concrete justification that the official ultimately

responsible for authorizing a settlement can use if his or her motives for settling are later called into question.

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are closely watched by investors, banks and mul- tilateral institutions. Hence, filing an ICSID ar- bitration against a host state could have a signifi- cant impact. Usually the host state will require “blood to be spilt”—for instance, the ICSID tri- bunal issues an interim award in favor of the U.S. investor on jurisdiction—before the government will agree to settle.

As part of any concerted negotiation strategy, U.S. corporate counsel should develop (with the assistance of outside counsel and the client’s con- sultants in the host country) a concrete justifica- tion that the host government official who is ulti- mately responsible for authorizing a settlement can use if if anyone later calls his or her motives for settling into question. Equally important, counsel should develop several face-saving ways that the government can settle, for example by offering a settlement that does not require a cash payment by the host country. Other examples include offering to accept future tax credits, goods in lieu of cash, or discounted energy, mineral or natural resources (e.g., petroleum, gas) from the host country.

Rule 6: Don’t Judge a Book by Its Cover Any basic guide to negotiation will underscore

the importance of empathizing and establishing a rapport with the opponent. With foreign govern- ments, however, this tends to be problematic. First, more often than not, there is a language difference. Second, there are cultural differences that could lead to stereotyping of both sides. Third, there usually is a strict hierarchy within a government that dictates who speaks to whom, who speaks first, and so on.

To overcome language difficulties, a U.S. in- vestor must include on its negotiating team one or two people who speak the host country’s lan- guage (not least to understand any internal whispering that may be going on during the negotiations). This is so even if the senior gov- ernment officials of the host country speak some English.

All of the U.S. negotiators must be very famil- iar with the culture, history, economics and poli- tics of the host country. A general perception of the region or sub-region as a whole is insufficient because countries within these areas are not the same. In addition, the negotiators must find a way to learn the appropriate hierarchy and the dance of negotiation in the host country.

These issues are not minor. An influential host country bureaucrat who perceives that a U.S. negotiator has not accorded him or her the prop- er respect can derail a negotiation before it be-

gins. This is so no matter how inadvertent the perceived slight.

Rule 7: Don’t Make Mountains Out of Molehills

U.S. corporate counsel must teach the compa- ny’s negotiators not to turn a small disagreement into a large-scale, bet-the-company dispute, or one in which important rights are surrendered in the negotiation process. The host state has unde- niable sovereign power over the investment oper- ations. If provoked, it can interfere with or even close down those operations in an instant. Thus, when there is a small dispute is not the time to use “fighting words” in negotiations. The lan- guage U.S. negotiators use and their diplomacy skills will be of vital importance in keeping a small dispute in proper perspective.

The first thing a U.S. investor should do when there is a confined dispute is to make sure that it has satisfied the host government’s “basic re- quirements.” This could mean having the neces- sary licenses, conforming to the host country’s regulations, paying required taxes, and the like.

Foreign governments usually seek to bargain for what they want. One example that comes to mind is an African country that had 15-year min- ing concessions with several foreign companies. With precious metal prices going through the roof, five years into the term, the government made public and private statements signaling its discontent with its percentage of the mining pro- ceeds from these concessions. Then, out of the blue, it placed an import tax on fuel from abroad, pursuant to what it described as a “World Bank initiative.” While many businesses were affected, the mining sector suffered the most since it was the most heavily dependent on foreign fuel. When the foreign investors sought to discuss eas- ing or eliminating the import tax with govern- ment officials, the government’s representatives asked for a quid pro quo for eliminating the import tax—a higher percentage of the mining proceeds.

Thus, corporate counsel should be aware of what is at stake and make sure the negotiators know that it is the company’s business agenda that must drive the negotiation process.

Rule 8: Timing Is Everything We have already noted that patience is a virtue

when dealing with foreign governments. But patience does not mean simply waiting for the government to come to you. (Most likely that will never happen anyway.) It means waiting for the right time to approach the government. The right time might be the start of a new administra- tion, or just after an award from an arbitral tribu-

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nal or a ruling from a court in favor of the company. A settle- ment can also be wrapped up into something much bigger, such as a free-trade agreement.

A bad time to approach a foreign government to negoti- ate the settlement of a dispute might be halfway into an elec- tion year (when governments generally refuse to take any steps that could be publicly criticized), or when opposition or third parties are at their strongest and most vociferous. Another bad time might be just after an arbitral award or court ruling in favor of the govern- ment.

It is no overstatement to sug- gest that, when dealing with governments, getting the timing right can mean the difference between a settlement and no agreement at all.

Rule 9: To Arbitrate or Not to Arbitrate? With the global rise in the cost of oil and gas,

energy and other natural resources, governments where these resources are located have become emboldened to make unilateral (and unlawful) alterations to resource-related contracts and licensing agreements, whether with national or large multinational corporations. Many of these resources were “nationalized” (i.e., forcibly taken) during the 1960s and 1970s and privatized again during the 1980s and 1990s. Today there is re- newed concern that these industries will be rena- tionalized again. (In certain countries, such as Venezuela and Zimbabwe, this is already occur- ring.)

When a dispute arises out of an investment in a country rich in natural resources, the host gov- ernment enjoys tremendous leverage over foreign investors, no matter what the nature of the in- vestment. In this situation, the only leverage the investor may have is to threaten to arbitrate the dispute—whether under a bilateral investment treaty, a stabilization agreement, or an arbitration clause in the contract. Sometimes this strategy can provoke a settlement.

But the threat of coercion could backfire if the host state is intent on its course no matter what. Rather than bring the host country to the table, threats might provoke the host government to blacklist the investor from future projects and also bring current ongoing business operations in

the host country to an end. In these circumstances,

unless the big picture strategy is to exit the host country alto- gether, the only option could be to accept the host govern- ment’s new terms in order to maintain a foothold there. One of the greatest challenges cor- porate and outside counsel face today, is to advise their business clients when to fight and when to stick.

Rule 10: Make It Watertight Even when a settlement is

reached, it is only as good as the paper it’s written on. That means the settlement agree- ment must be watertight and, above all, it must conform to local law and custom. Thus, corporate counsel must find out whether the agreement must be notarized, approved by a legislature or a local court (or both), be signed by the

requisite number of signatories with authority on behalf of the government to bind it to the con- tract, and be witnessed by the proper number of witnesses.

After all, even if the signature on a settlement agreement is penned by the Prime Minister her- self, local law may still require an internal gov- ernmental resolution without which the govern- ment cannot be bound.

Finally, U.S. corporate counsel must ensure that certain key clauses are included in the settle- ment agreement. Especially important are clauses in which the government represents and warrants that it has the requisite authority to enter into the settlement, and that it renounces any claim to sovereignty or public policy in order to try and render the settlement agreement null and void at a later date. The settlement agreement also should contain an arbitration clause, and a provi- sion stating that the government agrees to be bound by the arbitration clause.

Conclusion Settling a protracted or impassioned dispute is

difficult in the best of times. When the dispute is with a foreign state or a state-owned entity the difficulty is exponentially increased. But as these rules suggest, having the right advisors, the right information and the right attitude can result in a commercially acceptable settlement. n

It is no over- statement to suggest that, when dealing with govern-

ments, getting the timing

right can mean the difference

between a settlement

and no agree- ment at all.