The Truth Must Out

Mediation in the NHS - an area of vast unrealised potential

The publication of the findings of the Mid Staffordshire NHS Foundation Trust public inquiry, chaired by Robert Francis QC, has cast a shocking light on attitudes to patient care.  One of the many active areas of debate following Francis has been the principle of a "duty of candour".  The government has proposed a new statutory duty which will require health and care providers to make it clear if they believe treatment or care has caused death or serious injury, and to provide an explanation.  The duty will be placed on organisations rather than individuals, apparently to avoid creating a "climate of fear".  It is a significant first step in the herculean task of tackling an entrenched culture of covering up mistakes and a state of systemic denial about major service defects.  The coming months will also be an opportune time to think more broadly about how individual NHS “victims” are served by the current arrangements for seeking redress.

Listen, then answer the question

As Chief Executive of an NHS hospital trust in the mid-1990s, I spent a significant proportion of my time receiving complaints from patients or their families, getting them investigated, signing off on our response, then identifying and organising follow-up action.  The process was often complicated by the involvement of an ever-expanding cast of other players, including politicians, health authority members, patient watchdogs and the media. In a vital public service whose performance was not always as good as it should have been, an effective complaints system was essential and much of the interest in, even from those only remotely involved, was well-intentioned.  At the same, it was striking how, as the volume of paper grew, discussion of the complaint became more cumbersome for us and, much more importantly, remote from the complainant.  Delays in handling complaints gave rise to further grievances.

Several factors made for a uniquely difficult environment in which to handle complaints: a clinical workload far exceeding the capacity of the hospital, impossible promises made by politicians and bureaucrats (many of whom had subsequently moved on), clinicians’ terror of being left alone to face ‘medico-legal issues’ and professional censure, the System’s fear of huge compensation claims (distorting budgets and sucking money away from patient care) and high background stress levels among staff, patients and patients’ relatives.  Standard form, defensive letters eventually responding to complaints would reflect these factors, beginning with the telling phrase “I am sorry you have felt the need to complain”.  Replies would routinely consist of a detailed (but seldom informative) regurgitation of case notes, dates, times and other data.  Despite their bulk, it was unusual for letters to address the real questions posed by complaints or to reflect the slightest emotional intelligence on the part of the sender.

As a newcomer, the absurdity of this approach struck me more forcibly than it did some of my more jaded colleagues.  We decided to change our policy. In most cases a much shorter reply now went out signed by the responsible clinician.  We dropped the blow-by-blow accounts, tried harder to answer the specifics of each complaint, admitted mistakes and made it clear that we were jointly taking responsibility.  We found that a much higher proportion of our responses, delivered far more propmptly, were accepted without further discussion.  When complainants asked for follow-up meetings, these often turned out to be constructive and useful: surprisingly often, a coherent explanation and apology, with credible promises of action to prevent a recurrence, was accepted.  More strikingly, even after some disastrous incidents, clinicians felt much better having been able to explain their actions face to face.

Is the system delivering the right responses?

In a report written in 2001 (‘Handling clinical negligence claims in England’) the Comptroller and Auditor General included a study which, at the start of the claim and litigation process, asked claimants what they were looking for. 50% or more said they wanted: ‘an admission of fault’, ‘to prevent recurrence’ or ‘an investigation’. 40%-49% wanted ‘an apology’ or ‘to make them understand’. 30%-39% wanted ‘to be told what happened’, ‘the defence to show they care’, ‘to improve quality’, ‘money‘ or ‘to hear the other side’.  The report observed that (i) although 2% of NHS Trusts usually offered mediation, the rest rarely or never did; and (ii) although since 2000 the NHS Litigation Authority (NHSLA) had required its solicitors handling claims to offer mediation wherever appropriate, only 16% of cases had been accepted by defence solicitors as suitable for mediation.  The report conceded that mediation was not appropriate in every case (for example where damages were likely to be high) and was sometimes not a cheap option, partly because claimants would often need to incur costs in research and advice to compensate for the ‘inequality of information’ between themselves and the NHS/professional machine).

The organisation Action against Medical Accidents (AvMA) has campaigned for more than 25 years to promote a frank and open approach.  It has pushed hard for the statutory Duty of Candour.  Before the Mid-Staffordshire enquiry, the Department of Health’s response fell some way short of this.  Meanwhile the cost of clinical negligence continues to skyrocket. One recent report put the cost to the NHS at close to £1 billion per year.

Mediation can bring a better outcome for everybody

Over the last ten years there has been a series of small-scale initiatives to develop mediation in disputes over treatment and patient care.  The NHS - in its Complaints Procedure - and the NHS Litigation Authority officially encourage it, but the take-up is very low.  It is hard to understand why things could not move faster.  There will, of course, continue to be many cases where intensive legal analysis and argument is essential and damages must be assessed within a formal framework. But mediation has a huge unrealised potential for cases where a significant emotional element risks distracting or delaying the claimant from achieving an acceptable outcome.  The mediation process can be highly effective in calming protective spasms and identifying the mutual interests of clinicians, managers and claimants in reaching a resolution.  And it is worth bearing in mind that around 40% of claims dealt with by the NHS Litigation Authority are non-clinical.

NHS disputes are the supreme example of the value of early resolution and, all too often, a precious chance is lost once the bureaucracy and lawyers intervene.  NHS procedures should capture complaints at the earliest possible stage and establish a firm presumption of mediation.  It is not only patients who would feel the benefit.  As the the Clinical Dispute Forum’s Users’ Guide to Mediation points out: “Defendants too ..... are able to talk directly to the Claimant, explaining what happened, how things have changed and any appropriate regret ...... For clinicians, mediation can offer a satisfying closure to what is often a considerable burden for them of facing an accusation of professional negligence. All of this takes place in an entirely safe environment: informal, private and off the record.”  For cultural and organisational reasons the role of mediation in the NHS is under-developed.  The NHS faces an escalating problem in the number and cost of claims and a crisis of confidence in its care of patients, especially in hospital.  An increased role for mediation would benefit not only individual claimants but also the NHS, those who work in it and everyone who depends on it.