26 Oct 2017
Mediation in Public Healthcare - Making a Positive Difference
The commitment of NHS Resolution and the work of organisations such as CEDR is ensuring that mediation has a strong presence throughout the entire health service, helping to resolve many different forms of disputes. The NHS, like other institutions around the developed world, from the United Nations to private companies, is increasingly using mediation as a mainstream process. This is because mediation takes a needs-driven focus to resolving conflict, and frequently offers more attractive outcomes than a purely legal-focused path that can too easily ignore the best interests of parties.
However, awareness of how mediation is used by different areas within the NHS is sometimes lacking and therefore take-up can be disjointed. For example, many of those using mediation to improve team working in hospitals may not know that NHS Resolution are successfully using mediation in medical negligence claims from patients. This is why on 26 September 2017, CEDR held a conference on Mediation in Public Healthcare, drawing together successful instances of mediation so as to showcase its different areas of application within the NHS.
Entitled, Prevent, Resolve and Improve, the one day event, held at the Queen Elizabeth II Conference Centre in London, sought to help those working in public healthcare to understand how to realise the benefits of mediation. Attended by 100 clinicians, HR managers, trust representatives and healthcare lawyers, the conference identified and explored three key areas: patient care, clinical negligence and workplace mediation.
Clinical Negligence Mediation Stories
A case of NHS liability and causation dispute resolved in one day
Dispute between a young woman and her local health authority concerning damage which had occurred to her shoulder at birth. She claimed the damage was caused by the negligence of the midwife and that resulting complications caused severe disability to her right arm, affecting her work and day-to-day life.
Litigation had commenced two years prior to the mediation with a claim of £300,000 made against the NHS Trust. The mediation session took nine and a half hours, at the end of which a settlement of £110,000 was agreed.
The turning point was when the mediator was able to ‘reframe’ discussions with the young woman to investigate the possibility that the midwife might actually have saved her life, albeit at the expense of the shoulder damage.
Following the mediation the parties commented that the mediation day had been a long and tough one, but that they were pleased to have reached a settlement and draw a line under a protracted dispute.
A quantum claim and apology sought from birth trauma victim
While giving birth to her first child at her local hospital, a woman experienced complications. She was left with a serious long-term injury. The trust admitted liability at the time and apologised.
The woman sought legal advice and options available included litigation and mediation. She did not want to spend years in litigation and did not feel it would be the best way to address her issues. As a claimant she was looking for an explanation from the people responsible for her injury and to ensure that it would not happen to anyone else. This was more of a concern than monetary compensation. She felt that a swift process would enable her to move on with her life. The trust was also keen to reach an agreement and resolve the dispute.
The mediation enabled her to meet face-to-face with, and speak to, the people directly responsible for her injury. There was an honest dialogue about an event which heavily impacted on the life of the claimant but also the midwife and gynaecologist. The Trust apologised again and, more importantly for the claimant, those directly responsible were able to apologise to her directly. The parties agreed a settlement figure to compensate for the injury and both sides agreed a structure for the trust to re-evaluate their procedures for the future.
How does the NHS resolve disputes and how is mediation being put to good use?
Find a future focus - Patient Care Mediation
The issue of Patient Care mediation, i.e. disputes over the type of care patients garnered national attention during the recent Charlie Gard case. In his judgement Justice Francis stated: “mediation should be attempted in all cases such as this one even if all that it does is achieve a greater understanding by the parties of each other’s positions”. This session was led by Sarah Barclay, Co-Director and Founder of the Medical Mediation Foundation and Dr Stephanie Bown, CEDR panel mediator, GP and former Director of the National Clinical Assessment Service (NCAS).
The most commonly cited causes of disputes surrounding patient care are: breakdowns in communication, disagreements over treatment, and clinicians’ perceptions of unrealistic patient expectations. Conflict in this field can be devastating for patients and their families, bringing large financial and emotional burdens into what are already stressful situations. NHS staff are also affected by patient care disputes and can feel guilt, anger, frustration and isolation, all having knock-on effects on them personally and their ability to perform their job.
So, how can mediation help? Firstly, it offers a supportive platform for engagement between health professionals and patients and their families. Dr Stephanie Bown explained that one of the underlying difficulties with patient care issues is that once a problem arises, a vacuum opens up between the parties, with communication becoming strained, fragmented and often non-existent. She added that, from the patient perspective, this void is susceptible to being filled by ‘conspiracy theories’ which only served to distort reality and further polarise the parties.
In contrast, mediation allows patients and staff to have a voice. Whereas with traditional litigious methods of dispute resolution, this can be hard to achieve, mediation allows those involved to recognise what has taken place, listen to how that has had an impact and explore how the issue might be resolved. Experience has shown that patients and families value the opportunity to be heard and to have those responsible listen to how the decisions they have made have affected their lives.
The panel added that, whilst it must be acknowledged that mediation does not always resolve a dispute, it does provide a framework for the exploration and better understanding of the issues at play. This can aid in achieving settlement at a later date, but can also assist with any ongoing investigations.
The resounding message from the experts is that mediation is a human process and one that better serves the varying needs of patients and healthcare professionals. Cases such as that of Charlie Gard have no place in the courtroom, and whilst differences of view may well exist, mediation at least offers a route to a more compassionate and potentially less adversarial resolution.
Being heard and finding workable solutions - Clinical Negligence Mediation
In this session Julienne Vernon, Head of Claims Quality, at NHS Resolution, discussed NHS Resolution’s use of mediation and explained why the mediation of clinical negligence cases is now firmly part of NHS Resolution’s strategy for handling clinical negligence claims. A permanent mediation service has been established for all types of claims since December 2016. Julienne Vernon outlined the scale of the challenge. In 2016/17, NHS Resolution received 10,686 new clinical claims with a total value of £4,370.3m. NHS Resolution’s approach is to seek to settle the majority of cases without proceeding to court. In 2013/14 NHS Resolution commenced a mediation pilot which produced the following interesting outcomes: Offers of mediation were made in 91 cases*:
- 49 cases were accepted into the pilot
- I case settled before the mediation
- 1 case was withdrawn
- 47 completed mediations were undertaken of which 61% of the cases settled on the day of the mediation and 20% shortly thereafter.
Following the completion of the mediation pilot, NHS Resolution carried out a procurement process and appointed CEDR as one of three dispute resolution bodies who provide independent mediation services. 61 completed mediations had been undertaken from the inception of the service to 31 August 2017.
It was noted by Mediator and Member of the Civil Justice Council of England & Wales Working Group on ADR, Tony Allen, that mainstream commercial mediation took a long time to become established and that growth of clinical negligence mediation would come in time with the right support.
The NHS Resolution pilot proved that the concept of mediation is an effective method for resolving disputes between patients and the NHS. Similar to future treatment disputes, the mediation of clinical negligence claims offers parties a relatively cost-effective and efficient way to handle a claim with a view to settling the dispute. Importantly, it offers aggrieved individuals a cathartic opportunity.
Compared with monetary disputes, the outcome of a clinical negligence dispute can be much less straightforward. Financial compensation may form part of any settlement, but long term health implications, disruption to family life and the stress of an altered lifestyle can be difficult to quantify, come to terms to with and manage moving forward; the traditional legal process does not cater for the emotions and practical implications engendered by this.
*To note: 20 claimant representatives declined the offer of mediation. 2 NHS Resolution members declined, 12 claimant representatives did not respond to the offer and 8 claimant representatives agreed to an alternative form of dispute resolution( such as a round table meeting).
Teams need to function - Employee Conflict Mediation
Drawing on extensive experience of workplace mediation, the panellists highlighted how and why employee conflict can arise within the NHS. Workplace mediation is a well-established field and the discussion on this topic was led by Fiona Colquhoun, a former NHS HR Director and CEDR Director, Mediator, Trainer and Gillian Caroe, former HR Director, Mediator and NHS Trainer.
They noted that issues arising out of limited resources and cost and pay restraint can put pressure on relations. Furthermore, in some parts of the NHS, there are a number of issues that affect employee relationships including: grievance culture, poor morale, employee absence, leadership short-comings and high-pressure and emotionally charged work. Mediation offers NHS employees an alternative means by which to manage and resolve conflict.
One of the key benefits of workplace mediation is having the opportunity to explore how two disputing colleagues might take their professional relationship forward. This can include: agreeing frameworks and protocols on behaviour or commitments to certain codes of practice; apologies and statements of understanding; redeployment within the organisation; changes to work practice or environment; and a smooth and sensitive re-integration into the workplace. Additionally, post-mediation support can assist and reinforce the above benefits, aid with career planning and management and mentor individuals through new or recurring problems. In the event that the mediation cannot achieve a settlement whereby an employee continues in work, it can also be an excellent platform for discussing and formulating managed exits from the organisation and any settlement deals.
'View from the Top' - mediating within constraints
The need for the swift and cost-effective resolution of disputes is paramount as ultimately patient care is affected if staff and financial resources are diverted. With Conference Moderator and CEDR Director Graham Massie, was Mark Magrath, a business consultant and former CEO of Basildon and Thurrock NHS Trust presented an overview of dispute resolution processes from an executive level and the organisational and personal disruption that can be caused by prolonged and expensive disputes.
Mark Magrath also outlined how the NHS as an organisation is prone to conflict. He illustrated the different priorities of, for example, commissioners and trusts whose objectives, influence, remit and capabilities vary tremendously which inevitably lends itself to conflict.
Overcoming challenges and improving Mediation in the NHS
As well as raising awareness of current mediation practice in the NHS, the conference sought to surface delegates’ views as to what they felt the barriers to mediating patient care, clinical negligence and workplace disputes might be and importantly, how they might be overcome.
- Shifting fixed perspectives (particularly relevant to Clinical Negligence and Patient Care)
- Awareness and advice is key (relevant to all areas especially Patient Care)
- Creating a culutre of mediation (especially relevant to Workplace Mediation)
Conclusion to the conference
While it is important to acknowledge that mediation is firmly established as an effective, and increasingly used dispute resolution tool within the NHS, recent findings suggest there are still barriers to its further use. There remains the need to continue to raise awareness and understanding of mediation and how it can be employed in public healthcare among both professionals and patients alike. This conference had a bipartite aim. Firstly to raise awareness of the use of mediation in public healthcare and secondly to learn from practitioners and users about their views on what is preventing the further use of mediation in this field. It is important that we address the issues raised and stay alive to developing concerns raised by the multitude of stakeholders.