Mediation could play a valuable role if organisational duty of candour requirements are rolled-out in Northern Ireland
With an influx of patients demands impacting both the NHS and private healthcare providers over recent years, mediation is emerging as a valuable tool for both patients and healthcare providers in resolving medical negligence cases across the UK. In Northern Ireland, mediation could become particularly important as more patients turn to private healthcare options to bypass waiting lists and treatment delays and address medical concerns.
According to PHIN, the Private Healthcare Information Network, there has been an increase of up to 56% of patients seeking private healthcare. With this influx of patients will no doubt come an increase in disputes requiring quick and effective resolutions for both the healthcare provider and the patient.
But the value of mediation for medical negligence disputes is not limited to just the private healthcare sector. Mediation has been steadily growing as an effective tool within the NHS,
From 2016 to March 2023, over 1,000 NHS cases were resolved via mediation. Statistics published by the Department of Health show a steady increase in medical negligence cases over a 5-year period from 2017, with nearly 4,000 cases lodged in 2020/21. In 2022/23, 72% of claims mediated by NHS Resolution were settled on the mediation day or within 28 days of the mediation, avoiding formal court proceedings which would further disrupt an already stretch health service and helping patients to reach a resolution expediently.
Locally, Health Minister Mike Nesbitt supported an Alliance Party motion in Stormont in November, pledging to introduce an organisational duty of candour, a legal obligation for health and social care organisations to apologise to those impacted by unintended or unexpected incident that appears to have caused harm or death, be open and honest about what happened, involve those affected in a review of what happened, let those affected know how the organisation will learn from what has taken place and agree actions to improve quality of care.
Introducing an organisational duty of candour to in Northern Ireland would be a welcomed step toward ensuring patients receive resolution and transparency when dealing with medical malpractice. This added transparency for Northern Ireland’s healthcare system would be a welcomed development, as currently Northern Ireland it he only part of the UK without an organisational duty of candour.
An organisational duty of candour would not just encourage but demand two-way conversations between healthcare providers and the patients in areas of medical negligence, offering resolution for those impacted by negligence, and continuing to the continued improvement of the level of healthcare patients will receive in the future
By incorporating mediation into the toolkit when a duty of candour is rolled out, patients and healthcare providers could avoid expensive and time-consuming litigation processes whilst also protecting the confidentiality and emotional well-being of the patient and reputation of healthcare providers implicated. Unlike with traditional litigation, mediation also opens the door for flexibility in outcomes which can range from an apology to further treatment or rehabilitation to a negotiated financial settlement rather than a court-ordered one.
Benefits of mediation range from preservation in relationships to timeliness with most disputes being resolved in one session. With constructive dialogue and a safe space at the heart of a successful mediation, mediation’s softer approach offers wide appeal by providing a less adversarial format.
Additionally, parties taking part in a mediation are offered more control of outcomes with both parties agreeing on the final decision. This reduces the emotional and psychological toll on claimants and defendants that comes with a ‘winner’ and ‘loser’ being declared by a judge or court and also allows both parties to reach an agreement without admitting liability.