Mediating Conflict in Healthcare: A Therapeutic Justice Analysis
Mediating Conflict in Healthcare: A Therapeutic Justice Analysis [1]
Dr Jaime Lindsey from the University of Reading is leading a research project on using mediation to resolve medical treatment disputes. The study is now recruiting participants for the project. The team would like to hear from mediators, healthcare professionals, patients and family members who have been involved in mediations of medical treatment disputes. This will include disagreements that arise between patients, health professionals and family members regarding the provision of health and care to the patient.
BY DR JAIME LINDSEY
The use of mediation to resolve medical treatment disputes is the focus of a research project led by Dr Jaime Lindsey, Associate Professor in Law at the University of Reading, funded by an ESRC New Investigator Grant. This research will consider whether there are any therapeutic, or healing, benefits of using mediation to resolve disputes that arise from health and care contexts, as well as considering the ways in which mediation could become more therapeutic as an intervention.
Fundamental disagreements between healthcare professionals, patients and family members about the life and death of loved ones are, thankfully, relatively rare, notwithstanding numerous high profile cases in recent years. However, cases about other less serious medical treatment, such as vaccination, do arise more often. This research looks at how mediation can be used in those healthcare cases and considers the ways in which mediation can be therapeutic or anti-therapeutic for participants.
The research seeks to test, empirically, the various claims about mediation through qualitative analysis of mediation in medical treatment disputes, covering cases involving children (similar to those involving Charlie Gard and Archie Battersbee for example) and cases involving adults under the Mental Capacity Act 2005 (similar to cases such as that of Aintree v James as well as wider health and care decisions). As part of this research, the team will be observing medical mediations, as well as interviewing and surveying mediation participants.
Why Might Mediation Help?
Mediation is a non-judicial form of dispute resolution, which is generally seen as more informal and flexible than court proceedings and has several perceived benefits for those who take part. For example, it can improve communication between parties, enable individuals to feel heard as participants and increase the speed of resolution. It also tends to be less costly than court proceedings and can take place in parallel, meaning that no delay is needed should those involved not reach agreement at mediation. However, cases such as these are highly emotive, often involve life and death issues and have evident power imbalances between family members and healthcare professionals, meaning that mediation is not always seen as appropriate. Furthermore, for mediation to work, all parties must voluntarily agree to its use, which is not always possible.
Despite the drawbacks, mediation might help family members come to terms with the issues at the heart of the dispute. It can take time and careful discussion to digest the realities when faced with your seriously unwell or dying child or family member. Conversely, healthcare professionals may benefit from hearing directly from the family and patient, in a neutral venue, over a period of time, away from the realities of the hospital ward. For both parties, then, mediation might provide an opportunity to hear from and be heard, in a way that is not possible in the ordinary course of the provision of healthcare.
What Next?
The study is now recruiting participants for this exciting research project. The team would like to hear from mediators, healthcare professionals, patients and family members who have been involved in mediations of medical treatment disputes. This will include disagreements that arise between patients, health professionals and family members regarding the provision of health and care to the patient.
Building on our existing research on mediation in the Court of Protection, our aim is to collect much needed empirical data on the use of mediation in medical treatment cases, to improve understanding of mediation’s use in this challenging area. As well as interviews with mediation participants, the research will involve observing medical treatment mediations and a questionnaire of those involved in the observed mediations. Dr Lindsey is assisted in the research by Senior Research Officer Katarzyna Wazynska-Finck and project consultants Margaret Doyle and Sarah Barclay. The project is expected to be complete by September 2024.
The anonymised findings will inform academic, policy and practitioner debates and will be used in publications. If you would like to take part or want to know more, please contact Dr Jaime Lindsey, Principal Investigator of this ESRC funded research at j.lindsey@reading.ac.uk and on twitter @meddisputes.
[1] This blog post draws on an earlier post published here: https://essexlawresearch.wordpress.com/2022/08/11/mediating-conflict-between-families-and-doctors/
Dr Jaime Lindsey is an Associate Professor of Law at the University of Reading where she researches and teaches in the areas of healthcare law, family law, dispute resolution and socio-legal studies. She previously worked at the University of Essex and completed her PhD in law at the University of Birmingham. She is a non-practising solicitor following qualification at the healthcare law firm Capsticks Solicitors LLP in London.
