Mediation, professional reviews and negligence

Complaints and allegations of negligence, poor performance and incompetence against healthcare staff and providers are unfortunately a fact of life. Some patients can spend many years in prolonged and difficult legal battles. And often, paradoxically, the size of a financial payout is not the most important outcome. 

What do victims of medical accidents want?

Victims of medical accidents want four things.

  • Answers – what really happened to cause the accident?
  • Accountability – who (if anyone) was to blame?
  • Assurance – what can be done to stop it happening again?
  • And money (especially if there are financial implications of the accident).

Mediation offers the opportunity to get things resolved quickly and confidentially.

But is confidentiality the right thing? Is it right that a doctor who is performing badly can hide behind a veil of secrecy? Doesn’t the public have a right to know what is going on?

Mediation and professional review

Many professional organisations have processes for reviewing the performance of individuals. This is often referred to as an “Invited Review”. However the nature and scope of invited reviews, and the outcomes they produce, are very different to the outcomes of mediation.

Invited reviews

An expert is appointed to adjudicate. He or she listens to all the evidence and comes to a conclusion.

The expert gives their opinion to the interested parties, who may or may not follow the advice.

If poor performance is discovered then the matter can be referred to the appropriate authority or regulator.

The process is especially suitable for

  • Complicated matters of fact
  • Matters of law or regulation
  • Absolute standards
  • Complex multifactorial disputes

Mediation

An expert is appointed to mediate. He or she listens to all the evidence.

The parties in dispute propose a solution together.

The solution remains confidential.

Referral to the appropriate authority or regulator, in confidence, can be part of the solution.

The process is especially suitable for

  • Interpersonal issues
  • Unreasonable people
  • Complex multifactorial disputes

(note that both processes are suitable for complex multifactorial disputes. But mediation may have the edge since it helps the people involved to weight and balance the various factors in the way that seems most appropriate to them).

Referral to a regulator, a period of retraining, early retirement or a change in practice can all be part of a mediated agreement. This can be agreed in private, avoiding the adverse publicity that could ensue, whilst making sure that adequate steps are taken to protect the public.

Fitness to practise

Not all disputes are amenable to mediation. Disputes around benchmarks of medical care or fitness to practice need to be handled through other avenues.  

The General Medical Council, which is responsible for licencing doctors in the UK and ensuring fitness to practise, has made the following statement

…To use mediation in this context is to misunderstand the purpose and nature of the fitness to practise process and of mediation. Mediation is a process by which an agreed outcome is negotiated between two or more parties assisted by a neutral third party. By contrast, the purpose of fitness to practise sanctions is to provide the minimum protection necessary to protect the public having regard to a particular threshold or standard.

… The use of mediation in resolving disputes relating to healthcare may, however, be more appropriate as an early intervention method that could be used at a local level (for example, a trust or practice that has just received a complaint) to prevent unnecessary escalation of complaints. 

The Royal College of Nursing has a similar view. They find it is

… difficult to imagine how mediation would work, given that the Regulator is investigating how safe a practitioner is to practise, rather than seeking an outcome that each side finds acceptable (which is the way that mediation works in resolving civil law disputes).

Mediation cannot replace fitness to practise proceedings. But prompt and appropriate self-referral to a regulator or licensing body can be a core aspect of a mediated settlement.

It ensures that victims of medical accidents can see concrete steps being taken to address their concerns and it provides proper assurance. 

Is your dispute suitable for mediation?

Speak to us in strict confidence to see whether we can help.