A panel of top medical, legal and public health experts is advocating the use of mediation to help resolve disputes between patients and the Health Service in Scotland. Aware of much public concern about how disputes between patients and health services are currently handled in the UK, the independent panel, set up by The Royal Society of Edinburgh (RSE), has spent eight months exploring this important issue. The result of extensive consultation and evidence gathering, its findings, published in a report entitled Encouraging Resolution: Mediating Patient/Health Services Disputes in Scotland, will be widely disseminated on Wednesday 27th February 2002.

While the process of mediation is used in many other countries to resolve disputes, particularly in the field of medical negligence claims, its current use in Scotland is minimal. The committee recommends that there is scope for using mediation to resolve patient disputes to a far greater extent. Litigation, it believes, must continue to have a place in resolving medical negligence disputes, but states that it should be used only as a last resort. The report recommends that mediation be seen as an option to litigation, and to the Complaints Procedure.

The report, Encouraging Resolution states that the advantages of mediation clearly outweigh the disadvantages, and that although mediation may not be appropriate in all cases, the starting presumption for the resolution of all medical negligence cases should be that mediation is appropriate. The advantages include the process’s offering more flexible and constructive solutions (e.g. an apology or explanation); reducing delay; reducing stress for all involved; helping maintain professional and personal relationships, and providing greater scope for patients and families to participate and express their feelings.

The disadvantages of mediation include the fact that an offer to mediate may be seen as an acceptance of wrong doing, leading to a reluctance to participate. The report suggests that there may also be a reluctance to disclose information in case mediation does not succeed and resort has to be had to litigation, thus increasing the time commitment of healthcare practitioners and putting pressure on those involved to settle. It is also noted in the report that mediation cannot deliver a precedent, nor a public outcome. The committee underlines, however, that it believes these points should not serve as inhibiting factors that prevent mediation from taking place.

The report concludes that due to the limited availability of meaningful data, it is not possible to say whether mediation would lead to a financial cost saving, but the committee notes that the process does have the potential to reduce these costs, and the earlier in a dispute that mediation takes place, the greater the potential for financial cost savings.

Encouraging Resolution emphasises that for mediation to become a practical option, there must be a change in cultures and attitudes. The Committee suggests that issues of culture, education, funding and procedures need to be addressed by the key organisations mentioned in the report. Above all, the report concludes, there must be political will for change.

The Group’s Chairman, Lord Ross, Vice-President of The Royal Society of Edinburgh said:

There is a great deal of public concern about the way in which disputes between patients and health services disputes, and in particular medical negligence claims, are currently handled in the UK. After very full consideration of all the material before us, our report advocates the use of mediation as an option which has a number of advantages for all involved in such disputes. The evidence we have gathered from members of the public, the health and legal sectors indicates that the process of mediation is likely to be swifter and less stressful than other procedures, both for the patient and the health provider. A greater use of mediation will not take place, however, unless there is a change in attitudes, culture and education. I hope that key decision makers will consider our recommendations and agree, as has been done in others countries, that mediation has an important part to play in resolving medical disputes.

Welcoming the report, The President of The Royal Society of Edinburgh, Sir William Stewart said:
I am grateful to Lord Ross and his committee for their thorough research into this issue, and commend their excellent report. It is hugely important that we seek to provide opportunities for disputes between patients and health providers to be resolved as quickly, as effectively and as painlessly as possible, for all those concerned. Scotland must not fall behind other countries in adopting the benefits of this enlightened approach to dispute resolution. I believe that "Encouraging Resolution" will help the development of sound strategies for the future.

The report makes a number of key recommendations which are summarised below:

Summary of recommendations 
(paragraph references in brackets, refer to location in the report):

Process

• The Scottish Executive should, in conjunction with the National Health Service Scotland Central Legal Office (CLO), undertake a fully researched mediation project mirroring that being undertaken by the National Health Service Litigation Authority (NHSLA) in England – (paragraph 8.5)
• The Medical Defence Organisations (MDOs) should undertake appropriate mediation projects that, like the recommended CLO project, require mediation to be offered wherever appropriate and suitable – (paragraph 8.7)
• The Scottish Executive should work closely with the MDOs in developing its research into the CLO project to achieve, as far as is possible, an integrated research outcome – (paragraph 8.8)
• The courts in Scotland should consider adopting the principles which are outlined in the pre-action protocol for the resolution of clinical disputes in England (see Annex C) which has been promoted by the Clinical Disputes Forum – (paragraph 8.10)
• The courts should consider the introduction of appropriate rules of court to encourage parties to consider the option of mediation – (paragraph 8.13)
• Statutory protection, similar to that which already exists for mediation in family matters, should be provided regarding the admissibility of evidence – (paragraph 8.17)

Culture and education

• The relevant professional and patient representation bodies, supportive of mediation in medical negligence (and non-clinical) disputes, should issue public statements of policy intent. In support of the CLO project, the Scottish Executive should also provide a statement of policy intent to NHS Trusts and Boards – (paragraph 8.23)
• The Scottish Executive should give active consideration to encouraging "NHS Education for Scotland", in partnership with all interested stakeholders, to promote mediation training and awareness. In doing so, five specific steps the partnership should consider are: – (paragraph 8.25)

Providing public and patient guidance

• Promoting education through undergraduate training in medicine, nursing, and law (e.g. the law, medical and dental schools, incorporating the role and process of mediation within their core curricula).
• Promoting a programme of Continuing Professional Development (CPD) training for lawyers, judges and health care practitioners.
• Promoting a programme of education and training for health services administrators (e.g. Complaints Managers / Officers).
• Facilitating the development and implementation of mediation.
• Some of these matters can and should also be addressed directly by law schools, medical and dental schools, judicial training bodies and others, such as professional institutions and patient representation organisations. These bodies should take the necessary steps to achieve this in keeping with the partnership approach recommended – (paragraph 8.26)

Funding

• In granting legal aid in medical negligence cases a condition(s) to consider the use of mediation at a particular stage or stages, should be built into the process by the Scottish Legal Aid Board (SLAB) – (paragraph 8.34)
• SLAB should have a promotional and training role in relation to raising the awareness and understanding of both solicitors and legal aid applicants as regards mediation in medical negligence disputes – (paragraph 8.35)
• Where appropriate, the defence gateways (CLO and MDOs) should consider meeting the costs of the mediation process – (paragraph 8.37)

Complaints procedures

• The Scottish Executive, in its current review of the NHS Complaints Procedures in Scotland, should consider mediation as being an integral option in the process of resolving non-medical negligence disputes – (paragraph 8.42)
• The Health Services should take steps to enable and encourage a greater and more effective use of conciliation within the Complaints Procedures, with a view to avoiding the need for any further Alternative Dispute Resolution (ADR), including mediation – (paragraph 8.43)

Service provision

Four general principles should be considered in establishing mediation service provision: – (paragraph 9.3)

• The provider must be, and be seen to be, wholly independent of both parties and the systems. If the mediator is not independent the credibility of mediation will diminish.
• Encouraging the growth of an indigenous mediation service in Scotland. This will build confidence in the service and allow it to meet the particular needs of Scottish health services while recognising the specialities of Scots law and procedure. But we should not be parochial. We should, if need be, draw on the experience of mediation providers from elsewhere in the United Kingdom.
• The creation of any new service provision body would be inappropriate at the present time. There are insufficient medical negligence claims in any one year to justify that. We also do not see a single body as being conducive to what we say about independence.
• The most important attribute of an effective mediator should be excellence in the skills required in the process of mediation. It is not a prerequisite of mediating medical negligence disputes to have knowledge of medical terminology and issues.

Setting and maintaining standards

• There should be set and regulated national standards for mediators who are engaged to mediate medical negligence disputes, or non-clinical disputes in a clinical context. In the meantime, the minimum competence criteria should include: – (paragraph 9.5)
• A programme of mediation training (lasting a minimum of 3-4 days).
• A separate assessment and accreditation stage with set competence criteria.
• A regular CPD programme for accredited mediators to maintain skills (2-3 days per annum).
• Confidential debriefing following mediations.
• In the intervening period those mediators who are accredited by recognised mediation and legal bodies in the United Kingdom, and who have fulfilled the minimum competence criteria, should be recognised as being potentially acceptable to mediate – (paragraph 9.7)
• The Scottish Executive should establish a Medical Disputes Forum (MDF) comprising relevant stakeholders to consider, develop and implement quality standards relevant to mediating medical negligence (and non-clinical in a clinical context) disputes – (paragraph 9.8)
• Service providers should adhere to good practice standards for delivering mediation services. The setting and implementation of these should fall to the MDF. The standards that should be included are: – (paragraph 9.9)
• Handling pre-mediation inquiries and offering objective advice about suitability of cases for mediation.
• Providing literature about the mediation process.
• Arranging the venue for the mediation.
• Handling the exchange of information prior to the mediation.
• Providing an appropriate form of agreement to mediate.
• Conducting such pre-mediation meetings as may be necessary.
• Providing appropriate post-mediation advice and follow up.
• Binding all mediators to a published Code of Conduct, covering confidentiality, ethics, equal treatment and independence.
• Ensuring all mediators have professional indemnity cover.
• Providing a consistent pricing policy.
• Providing adequate administrative arrangements.
  
• In the longer-term there should be clearly defined monitoring and evaluation arrangements in place. This should be a matter for the MDF to consider and implement – (paragraph 9.10)
• The mediation process must ensure, as far as is reasonable, that a balance of power exists throughout between patients and the health services. This should be built into the Code of Conduct – (paragraph 9.12)
  
• No one should be excluded from using mediation. It must be an option available to all. Ensuring equality should be built into the Code of Conduct – (paragraph 9.13)

Chaired by one of Scotland’s foremost legal experts, The Rt. Hon. Lord Ross, Former Lord Justice Clerk of Scotland; the independent review group took evidence throughout Scotland from a wide range of professional bodies, patient interest groups, health professionals and members of the public. As part of its evidence gathering the Royal Society of Edinburgh also held a discussion seminar comprising representatives from the legal and medical professions, the health services, patient interests, and the Scottish Executive. This also included patients and practitioners with personal experiences of patient / health services disputes. The panel reported to The Royal Society of Edinburgh in January 2002. The Scottish Executive endorsed the "considerable merit" of creating the review panel and seconded a member of its staff to act as Secretary to the group. The expert panel has been funded by The Royal Society of Edinburgh, The Scottish Executive and the Medical & Dental Defence Union.

For a hard copy of the report, please contact:
Graeme Herbert, Mediation Group Secretary
tel. +44 (0)131 240 5000; fax: +44 (0)131 240 5024
e-mail: Mediation@royalsoced.org.uk
The Royal Society of Edinburgh, 22 - 26 George Street, Edinburgh EH2 2PQ

Notes for Editors:

Prompted by a symposium on Medical Practice and the Growth of Litigation in the UK, held at the RSE in June 2000, the panel met for the first time in June 2001 at the RSE.

The Membership of the group included:

The Rt Hon Lord Ross PC, FRSE Vice-President, Royal Society of Edinburgh – chairman
Dr David Blaney Director of Post Graduate GP Education, South East Scotland
Miss Maggie Boyle Chief Executive, North Glasgow University Hospitals NHS Trust
Mr Tom Divers Chief Executive, Greater Glasgow Health Board
Mrs Pat Dawson Head of Policy, Royal College of Nursing (Scotland)
Mr Hugh Donald, OBE Partner, Shepherd &WedderburnWS
Dr John Garner Chairman, British Medical Association Scotland
Mr Ranald Macdonald Legal Adviser, National Health Service Scotland Central Legal Office
Dr William Mathewson Deputy Chief Executive, Medical & Dental Defence Union of Scotland
Mr Grant McCulloch Partner, Drummond Miller, Solicitors and Estate Agents
Lord Patel, FRSE Chairman, Clinical Standards Board for Scotland
Mrs Anne Smith, QC Faculty of Advocates (now the Hon Lady Smith)
Professor John Sturrock, QC Director, Core Mediation Ltd
Dr Charles Swainson Medical Director, Lothian University Hospitals NHS Trust
Ms Helen Tyrrell Development Co-ordinator, Voluntary Health Scotland
Mr Graeme Herbert The Royal Society of Edinburgh – Group Secretary

3. A .jpg of Committee Chairman, Lord Ross is available from the RSE

4. Biographical Details – Lord Ross PC, FRSE

Donald MacArthur Ross was born in Dundee and educated at Dundee High School and Edinburgh University. Lord Ross passed advocate and became a QC in 1964. He has been Sheriff Principal of Ayr and Bute, Dean of theFaculty of Advocates and a Senator of the College of Justice. From 1985-1997, he was Lord Justice Clerk; 1990-1991, he was Lord High Commissioner to the General Assembly of the Church of Scotland, and since 1997 has been Chairman of the Judicial Studies Committee for Scotland. He became a Privy Counsellor in 1985 and was elected fellow of the Royal Society of Edinburgh in 1988, where he is now Vice-President. Lord Ross is married with two daughters and five grandchildren.