On April 1st the NHS Litigation Authority re-branded itself as NHS Resolution and embarked upon a 5 year strategy to implement processes ensuring fair resolution of claims and that lessons are learnt from adverse patient incidents.
In its forward to its Strategy Plan the NHS Resolution expressly recognises that
“the process of claiming compensation need not be adversarial”
and vows to increase its use of mediation. It seeks
“to challenge existing models for delivering compensation to keep cases out of court whenever possible”.
It identifies that patients who are affected by adverse events seek far more than just compensation which is all that the court process can provide. Apologies, explanations and notably
“assurance that the NHS has learnt from the incident to prevent it happening again”.
These aims are precisely what the flexibility of the mediation process can deliver. Already the experience of the first mediations held under the NHSLA mediation scheme announced on 5th December 2016 has shown this in spades. The shopping list of patients’ concerns following an adverse incident is well known from patient solicitors’ anecdotes and established research. Indeed the last National Audit office enquiry into the costs of clinical negligence claims in 2001 included research (by Mulcahy) which reinforced this. Since 2001 the Government has insisted that claims against it be resolved if possible by ADR but in the healthcare field whatever its public pronouncements the state’s lawyers have been reluctant to espouse the ADR cause.
In its Strategy Plan NHS Resolution comments that its “experience of mediation and other forms of ADR is that a more effective solution can be found when the court process is set aside and the ambiguity and range of views which often exists can be properly explored.” Its aims include
“To challenge the status quo in the legal establishment reducing litigation and increasing the use of ADR.” Indeed its aim over the next 5 years is to “make a cultural shift” so that its staff and its panel solicitors “Ensure a sympathetic approach and tone is taken with all cases and that we reflect on the use of legal jargon putting ourselves in the shoes of the injured person.” (emphasis added).
Experience shows that the best mediation advocates achieve just that. For a litigation system in which parties have for too long prolonged claims unnecessarily leaving thoughts of resolution virtually to the door of the court, this will require re-education of lawyers on both sides as well as exposure to the collaborative and evaluative culture that mediation promotes. If it works there is no doubt that costs will be saved, patient satisfaction increased and hopefully lessons learnt.
Increased use of Mediation
In year one NHS Resolution says it will “push ahead with the use of mediation for healthcare disputes and test point of incident mediation where the relationship between the family and the NHS trust is at risk following an incident”. Resolution is seen to be of benefit to all parties much closer to the time of the incident.
Already ADR has climbed to the top of case management directions. This Plan places it firmly in the pre action process. Whilst the strategy paper cannot resist a swipe at alleged over charging by Claimants lawyers, if it succeeds in its aims NHS Resolution will have to admit responsibility and engage with claimants and their solicitors and they will have to engage with the NHS Resolution at a much earlier stage than has hitherto been the case. If this happens, as night follows day, legal costs of both sides will be reduced.
There can be little doubt that this will all need a seismic change of culture amongst NHS staff, claim handlers and panel solicitors and the claimants’ lawyers. But this is no April fool. If NHS Resolution is to demonstrate it is fit for purpose it has to deliver on its ambitious aims. It has clearly decided to make a bold strategic move prior to the outcome of the National Audit office’s current investigation. It has proposed a solution, and looking after patient victims and improving patient care all at a reduced cost are commendable objectives.
In recent cases judges have made it clear that those who ignore ADR processes such as mediation do so at their peril. With the launch of the Mediation Scheme and this 5 year Resolution strategy there is now a new direction. NHS Resolution will need to be seen to be talking the talk and walking the walk on ADR, whilst rightly defending unmeritorious and inflated claims. There will also be an onus on Claimants’ lawyers to step up to the mark, recognise the additional advantages that mediation can bring and embrace the NHS’ new stance.