Image © Andrii Yalanskyi
It was a wet Tuesday morning in February a few years ago. You were up early and into the hospital before it was light. Patients were already waiting. Your list was long and the flu epidemic meant colleagues were away, nurses missing, and the general public’s dripping noses making you very glad you had had the jab. In short - a typical working day in the austerity NHS of the then Health Secretary, Jeremy Hunt.
You don’t really recall Mrs Goggins. One of thirty patients that morning. Nothing unusual as a patient though of course, you remind yourself, unique as a human being. Your only memoriam are the notes you wrote that morning. They seem fine. No mention of the Montgomery words – risks, benefits, alternatives, options – but you always give those. No reason to think you did not. And then you treated the patient.
And now she is suing you. Well not you – the Trust you work for – though it is you brought into a meeting with its risk manager, the clinical director, and the solicitors from a firm who (you later learn) are on a panel appointed by the NHS Litigation Authority – the Trust that operates as “NHS Resolution”. It feels like you are on trial. No doubt about it. Words like “sub-standard care” and “Bolam” are thrown around. Piles of medical notes are on the table.
Then the barrister arrives. A splendidly-combed QC who, you vaguely recall, has a title. All of them here to discuss your alleged errors or omissions – not only with you but with the “other side” as they call them and someone else. Not a judge. Or an arbitrator. But instead with - “the mediator” – who would not decide anything at all. What on earth is going on? This article explores the process.
The quantum of solace
We all know that litigation places a substantial burden on the NHS. Inspiring outlets of accurate journalism such as the Daily Mail regularly belittle scroungers who fleece hospitals and line the pockets of ambulance-chasing lawyers. The truth is far more complex (and a long way distant from the lambasts in 65 points across the front pages of a tabloid). But it is expensive.
Helen Vernon, Chief Executive of NHS Resolution said in July 2018 -
“The growing interest both from our NHS members and those who act for injured patients in working together to resolve claims for compensation without going to court has been very encouraging and we hope to build on this so that mediation is no longer seen as novel in healthcare. However, the cost of clinical negligence is at all-time high. The total provisions for all of our indemnity schemes continue to rise from £65 billion last year to £77 billion as of 31 March 2018 which brings a renewed urgency to efforts across government to tackle the drivers of that cost.”
According to the NHS Resolution annual report published in the summer², formal litigation reduced to the lowest recorded level as NHS Resolution mediated more claims in a single year than in its entire history. This was accompanied by an (expressly welcomed) reduction in claimant legal costs (by £31.8 million) for the first time in many years as NHS Resolution implemented the first year of its five-year strategy – delivering fair resolutionand learning from harm under what many (including the author) consider to be inspiring leadership from CEO Helen Vernon.
However, despite a plateauing in the numbers of new clinical negligence claims, the cost of those claims continued to rise, largely due to a change to the way in which compensation was calculated. Figures for the past year show that the NHS paid out more than £1.63 billion in damages to claimants in 2017/18, an increase from £1.08 billion in 2016/17. £404 million of the increase (33%) was due to a change in personal injury discount rate (PIDR – the method by which future loss is calculated, and completely controlled by the Secretary of State for Justice) from 2.5% to minus 0.75³.
This shift towards mediation is a very new feature. Indeed, the author must declare an interest – as a barrister representing many claimants and some doctors – work has been consistent for three decades. As a mediator, approved by NHS Resolution to mediate clinical negligence, personal injury, and costs cases, the author has seen his mediation work rise from just a few healthcare mediations a year to (this year) on average almost one a week. That is a common experience and it is suspected that some 750 mediations of all kinds will take place in the NHS this calendar year. That may be an underestimate. It does not include the use of mediation in problems between staff members (“workplace mediation”) which is increasingly in use.
A brief history of talking
It is a far cry from even two years ago. Helen Vernon then bemoaned a lack of uptake from claimant lawyers for the failure of the NHS mediation scheme to do more than about 70 mediations⁴ in 2016. Formal mediation was still a relatively new feature in the NHS. More traditional forms of conciliation had consisted of informal meetings between patients and clinicians in the hospital setting, referred to as negotiation, with mixed results. There has been a push for more mediation specifically prior to litigation.
The NHS Litigation Authority (NHSLA) had in fact been offering to mediate on cases since 2002 – since the then newly established Civil Mediation Council and CEDR offered a pilot scheme. It was widely reported then that claimant solicitors generally did not take it up. Nor were the panel firms of defendant solicitors back then any more enthusiastic. Income streams were guarded and the lack of information about outcomes and options – as well as the refusal to pay costs meant that many solicitors simply did not want to risk their profits⁵.
In his “Making Amends”, published in 2003⁶, Sir Liam Donaldson recommended the creation of a new NHS Redress Scheme to be used when NHS care and treatment goes wrong. It was proposed that a national organization will administer the redress scheme which would offer remedial treatment, rehabilitation and care where needed; explanations and apologies and financial compensation where appropriate.
Sir Liam said: “Patients deserve to receive high quality healthcare from their NHS. And, for the vast majority of the millions of people treated every year, the NHS provides excellent, effective healthcare. However, patients occasionally do not receive the treatment they should, and mistakes are sometimes made. Patients deserve to be told what happened when things go wrong and to be compensated if appropriate.” A Scheme was intended by 2005. It took a nearly a decade.
Even in 2003, mediation when it was used, it usually produced good outcomes, with some 75% settling on the day and 5% in the following week. The reluctance stemmed from concerns over increased costs and not having complete evidence. Lawyers had only (in 2003) recently been forced (from 26th April 1999) to enter the modern era of litigation in England with the Civil Procedure Rules. As a result, cases were still handled slowly, and (by present standards) luxuriously. Doctors of a certain age will remember that “hired gun” experts were still all-pervasive and personal injury solicitors boasted about their gold bathroom taps. You could even still get Legal Aid for clinical negligence cases.
The NHS Redress Act 2006, which received the Royal Assent on 8th November 2006, was the official intended response to Making Amends. Itcontained (and still contains) enabling legislation for a new scheme for providing “quick and appropriate” responses to cases of clinical negligence which are of low monetary value. The NHS Litigation Authority was supposed to take charge of the scheme, which would only apply to cases being brought within a certain time limit below a certain value.
The 2006 Act was intended to offer patients a quicker and fairer alternative to expensive and lengthy legal battles, which have caused the cost of NHS negligence to spiral dramatically in recent years. Mediation was intended to be at the core of this glasnost. But the Department of Health failed to produce the necessary secondary legislation to make it operational, leaving the Act unworkable in England.
In 2010, the Government claimed it was considering implementing the new scheme after “recent reforms to the complaints system (had) been fully assessed ⁷”. An attempt to revive the Act with a private member’s bill in October 2010 failed. A Welsh version of Scheme was introduced in 2011 and the Scottish scheme – based on their Patient’s Rights Bill and the McLean Report also proceeded.
Fast forward to 2015: the use of the courts was steadily becoming less common: in July 2013 it was reported⁸ that fewer than 1.7% of the cases handled by the NHSLA were finally disposed of by a liability trial in court, with the remainder being settled out of court (48.3%) or abandoned “without a penny paid” (40%) by the claimant. Mediation, though, played a tiny (0.07%) part of that process.
By 2015 in Europe, some Courts were requiring cases to go through some type of Alternative Dispute Resolution, and especially mediation, before permitting the parties to present to a judicial court. Indeed, the European Mediation Directive (Directive 2008/52/EC) expressly contemplated so-called "compulsory" mediation. The EU thought that there were many advantages for harmonisation and its citizens in compelling mediation: the most important and most obvious ones were the cost and time saving achievable.
Mediation had become much less costly than civil litigation. It is quicker: the mediation process, in fact, can take only a few hours. It is an informalprocess that is confidential and without prejudice. Preparation is easy and simple. No particular location is needed, and lawyers are not necessary (although they may participate at the request of a party). No less, mediation can protect parties from some of the extra problems associated with civil litigation, such as punitive awards, if applicable. Mediation also allowed a more transparent process. It is more suitable to answer the needs of the parties – especially after mid- Staffs⁹ and the duty of candour under Regulation 20¹⁰.
Mediation was then by 2015 at last widely recognised as allowing all parties to bring their needs, problems, concerns and expectations to the table. Indeed, in mediation the parties are full participants and can express their own opinions and concerns, whereas in civil litigation the parties’ lawyers are the only ones who represent their party unless the party “takes the stand” and is subject to cross-examination by the opposing lawyer.
Mediation allows parties to have direct control, to work together and reach a settlement even in a friendly way, while in civil litigation most often there is a decision by a judge which the parties accept, but their relationship comes to an unfriendly end. Mediations were not constrained by judicial outcomes – apologies, letters, changes in practice, and party-designed solutions are all available in strict contrast to the financial remedy which is the only judicial option: damages.
So, change was needed. A solution present. The NHS Resolution mediation scheme came into being¹¹ to deliver the gains that Jeremy Hunt, the EU and professionals increasingly demanded. After a pilot scheme and some teething and learning, CEDR and Trust Mediation¹² were appointed following tenders to administer the full project. It has now become a success.
Or else what follows?¹³
Mediation is very often now (in 2018/19) the preferred means of resolution for cases of complexity, or high value, or a range of possible judicial outcomes. It is also sometimes used where the NHS wishes the better to understand a case that does not at first blush seem likely to end in damages but where (often unrepresented) people are advancing what may become a time-consuming case.
Mediation provides a full range of options in these cases, as well as the traditional. It leaves the right to go to court unimpeded but that “bloody constraint” is in around 80% of NHS Resolutions mediations permanently eschewed through an agreement to settle the matter.
The mediators are doctors and lawyers, (barristers and solicitors) and they work impartially, neutrally, and determinedly to help the conversation. Mediators do not provide solutions but, by intelligent (they hope) questioning and careful probing can elicit options which the parties adopt. The mediators must not suggest outcomes – but they use the process of mediation to make a resolution more likely. Mostly, they (or actually and more correctly, the parties) succeed.
So how does it affect me?
Those finding themselves in health care disputes can discuss with NHS Resolution - or indeed increasingly the MPS or MDU who both have recently moved to adopt this process, in England and across the Irish Sea. Hilary Steele, Claims Lead for Republic of Ireland at Medical Protection Society (MPS)¹⁴ said in July 2018:
“(The) Medical Protection Society (MPS) fully supports the Government’s decision to set up an expert group to look at alternative ways to resolve some clinical negligence claims. Our experience dealing with claims worldwide provides us with a unique insight into best practice when resolving clinical disputes. A culture of transparency and sharing of information will lead to earlier resolution of claims. MPS has been instrumental in advancing the introduction of a voluntary pre-action protocol with the State Claims Agency and four leading plaintiff clinical negligence firms. We now need the government to finalise a compulsory pre-action protocol to provide a statutory framework for claim resolution without the additional pressure and cost of having to attend and give evidence at Trial.
“There are significant delays in resolving claims through the current court system. MPS would encourage the introduction of specialist judges taking a proactive approach to case management where pre-action resolution has not been possible. Parties should also be actively encouraged to resolve disputes by alternative means such as mediation, which has been shown to be beneficial for both patient and doctor by facilitating discussion and an understanding of events and their impact.”
It is thus increasingly likely that clinicians who have a claim against them may have an opportunity to speed resolution, without prejudice and confidentially, at a mediation. The reduction in hassle and strain is universally reported as a major benefit – so too is the chance for the doctor to have their say in a setting which is neither hostile nor public. The mediator ensures a quiet, business-like setting where everyone is listened to with dignity and respect. There is no cross- examination and no verdict.
In some mediations, there are tears and shared hugs. In others, a simple shake of hands. It is a remarkably cathartic experience. Changing minds has never been so good.
Footnote: can I mediate?
Yes! It is important to know, however, that all mediators in health care matters have been trained on a week- long training course, have shadowed experienced mediators and carry insurance. They demonstrate their background skills to a panel and a willingness to be neutral and thoughtful. The training involves practical assessments and workshop learning. It is specifically aimed at healthcare.
If you are interested in training as a mediator, please contact Lisa Cheyne at SpecialistInfo. Courses are available with the leading training organisation The Society of Mediators (a charitable body providing education and dispute resolution) direct from SpecialistInfo. These courses run in London and Manchester and fill quickly. The feedback is remarkable. Call 01423 727721 or see the website https://specialistinfo.com/a_ml_mediation.php
References
[1]Co-authorofthetextbook “PracticalMediation”(2017) https://www.amazon.co.uk/Practical-Mediation-Mediators-Commercial-Employment/dp/1911035355 and long-time Specialist Info course leader
[2] See: https://resolution.nhs.uk/wp-content/uploads/2018/08/NHS-Resolution-Annual-Report-2017-2018.pdf
[5] http://www.hope.be/wp-content/uploads/2015/11/91_2012_HOPE-REPORT_Mediation-n-healthcare.pdf
[6] www.doh.gov.uk/makingamends
[7] DoH Response 30 August 2009
[8] https://www.gov.uk/government/uploads/system/uploads/.../0527.pdf
[10] https://www.cqc.org.uk/guidance-providers/regulations-enforcement/regulation-20-duty-candour#full-regulation
[11] https://www.lawgazette.co.uk/practice/nhs-offers-mediation-service-to-avoid-court/5042542.article
[12] https://www.trustmediation.org.uk/services/nhs-la-mediation-scheme/
[13] See Henry V Act 2 Scene 4 – per The King of France and the Duke of Exeter’s reply: Bloody constraint. http://shakespeare.mit.edu/henryv/henryv.2.4.html
Published by: