By Paul Balen, Mediator and Director of Trust Mediation Ltd
(Estimated reading time: 2 minutes, 35 seconds)
Temple is a long-time advocate of ADR, in particular for the use of mediation to settle clinical negligence cases. Of particular interest to those who may be newer to the subject matter, below Paul Balen explains the role of mediation in medical treatment disputes.
Mediation is a confidential, interactive process where an impartial third party, the mediator, assists disputing parties in resolving conflict through the use of specialised communication and negotiation techniques. It is a highly flexible concept, adaptable to both complex and straightforward disputes and, importantly, proven as particularly effective in facilitating a greater understanding when emotions run high.
Mediation in medical treatment disputes can help with –
- Disputes between patients, or their relatives and medical practitioners/hospital authorities are, as we know, unfortunately not uncommon. As the modern healthcare system becomes more complex and expensive, such as for developments in intensive care medicine and new treatment options, so does the scope for a dispute increase.
- Patients who may previously have died now survive, but often in a parlous state; people are generally living longer and therefore decisions about treatment options are becoming increasingly difficult. Then there are NHS clinicians having to make decisions simultaneously – as doctors who owe a duty of care to a patient but also as publicly accountable officials making decisions on the basis of limited resources.
- Patients who feel let down when denied NHS treatment despite having a medical need may well feel aggrieved and raise a complaint. Then there are patients recommended to have life-saving treatment also with legitimate concerns; whilst for some relatives decisions advising that further treatment would be futile may also raise a difference of opinion with those charged with their loved one’s care.
Judges in cases such as Re Y [2018] UKSC 46 or that of Charlie Gard [2017] EWHC 1909 (Fam), have highlighted the importance of trying to achieve consensus about treatment options. The NHS Early Notification Scheme for cerebral palsy children, Jehovah’s witness cases and ‘end of life’ decisions are other examples where the Court remains available if consensus cannot be reached.
Mediation can often provide a quicker, more humane and less costly option either to either resolve the whole dispute or at least help narrow the issues and create a greater understanding. The preservation of relationships which are otherwise potentially damaged by lengthy disputes and litigation is an acknowledged benefit which mediation can usually deliver.
Clear communication and explanation is vital in an era where patients can “Google” a diagnosis, research potential treatment options and communicate instantly via social media. They can also involve special interest groups, doctors from other jurisdictions and be influenced by ‘fake news’.
In summary, faced with a potential avalanche of opinion and (mis)information, mediation provides an ideal forum away from the intensity of the hospital ward where an informed neutral party can help diffuse tensions and misunderstandings.
In addition to our work in the clinical negligence and personal injury fields, Trust Mediation can provide legally and medically qualified mediators to help with most types of dispute concerning people in the medical/clinical/healthcare sector. For more information about Trust Mediation’s work in this field please email registrar@trustmediation.org.uk
