1 July 2003
Chief Medical Officer's report requires mediation in majority of clinical negligence claims
The long awaited report by the Chief Medical Officer on clinical negligence in the NHS, published on 30 June 2003, proves highly significant for the use of mediation in this sector.
The report recommends mediation for most cases over £30,000, which the author Sir Liam Donaldson suggests should be buttressed by an amendment of the pre-action protocol. The report also gives its blessing to the recommendations of the joint AVMA/NHSLA/CEDR/LSC proposals for developing a larger pool of experienced mediators through its advanced training programme and the piloting of pre-process review.
Other recommendations include the introduction of a new NHS Redress Scheme, run for the NHS by a new body based on the work of the NHSLA, which will handle claims up to £30,000 in value (possibly to be increased after piloting) and also compensation for certain neurologically impaired babies (cerebral palsy claims), intended to bring more such cases within compensation.
The recommendations are now open for consultation until 17 October 2003.
Tony Allen, CEDR Director, has been pioneering the development of mediation within clinical negligence disputes. Commenting on the report he stated:
"The report is going to trigger an intense debate, but the recommendations regarding mediation are highly encouraging in their support of the work we are already doing with AVMA and the NHSLA, as well as for the future development and use of mediation in the field as a whole."Ends
Notes to editors
The relevant sections of the report concerning mediation are outlined below:
The summary of the report (page 17) states "For cases that do not fall within the criteria of the [NHS Redress] Scheme there would be an expectation that mediation would be used as a first step and pre-action protocols would require mediation to be attempted in specified types of cases. Acceptance of a mediation package would be binding."
Recommendation 15 (on page 126-7) continues:
Mediation should be seriously considered before litigation for the majority of claims which do not fall within the proposed NHS Redress Scheme.
The successor body to the NHSLA should require their panel solicitor firms to consider every case for mediation and to offer mediation where appropriate. Mediation is not a cheap alternative to litigation. However, it can offer claimants the package of measures which they say they seek: apologies, explanations, an opportunity to discuss the issues with the healthcare providers face to face and to explore issues other than financial compensation. It can also be followed by an out-of-court settlement of a large claim.
To encourage increased take-up of mediation, improved information is required for NHS staff, for Patient Advice and Liaison Services and for Independent Complaints Advocacy Services on what mediation entails and the cases for which it may be suitable. The Department of Health and the NHSLA should develop work to provide this.
In addition a larger pool of trained and accredited mediators is necessary to ensure that appropriate expertise is readily available. The department of health, the department for Constitutional Affairs and the LSC should build on the initial feasibility study work supported by the LSC, NHSLA, AVMA and CEDR to support the establishment of an advanced clinical negligence mediation training and accreditation programme and to test and evaluate a preliminary process review to explore the suitability of mediation or other forms of dispute resolution process in particular cases.
As to the NHS Redress Scheme itself, the report asks:
Are there additional ways of encouraging greater use of mediation and other alternative dispute resolution procedures?
The full report by the Chief Medical Officer 'Making Amends: a consultation paper setting out proposals for reforming the approach to clinical negligence in the NHS' is available online.
CEDR will issue a formal response to the consultation paper in the coming weeks.
CEDR (Centre for Effective Dispute Resolution) is the leader in the development of neutral-assisted dispute resolution. It is a non-profit organisation whose mission is to encourage and develop cost-effective dispute prevention and resolution of clinical negligence claims as well as commercial and public-sector disputes and in civil litigation.
The second phase of CEDR's joint project with AVMA and NHSLA to develop the use of mediation in clinical disputes (as mentioned in the CMO's report) is expected to start shortly and will involve the implementation of findings from the first phase of the project, including advanced accreditation for clinical negligence mediators, training for lawyer representatives and pre-process review services.
CEDR Solve, (CEDR's dispute resolution service) is the UK's leading commercial mediation provider, at the forefront of service design and delivery in the personal injury and clinical negligence sectors. Clinical negligence is one of CEDR Solve's fastest growing sectors, with over 100 per cent increase in referrals from 2001 to 2002. Recent cases include the Alder Hey retained organs litigation, the largest single clinical negligence settlement to date (as referred to on page 38 of the report), and a wide range of claims of all values in all parts of the country, utilising mediators with broad experience of such claims.
For more information or to discuss the placement of an article on the development of mediation in clinical negligence cases, please contact:
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