Government Commissioned Report Highlights Need for More Mediation Research
Government Commissioned Report Highlights Need for More Mediation Research for Medical Disputes
The Nuffield Council on Bioethics recently presented its independent review ‘Disagreements in the Care of Critically Ill Children’ to the UK Parliament. Delving into the causes, impacts, and resolution mechanisms of disputes between families and healthcare professionals, the report also urges for further research into the benefits of mediation for these disputes. Dr Jaime Lindsey, Margaret Doyle and James Browning, who specialise in research on medical mediation, critically evaluate the findings in this article.
BY DR JAIME LINDSEY, MARGARET DOYLE AND JAMES BROWNING
In September 2023, the Nuffield Council on Bioethics presented its independent review Disagreements in the Care of Critically Ill Children to the UK Parliament. The Council was commissioned in late 2022 by Secretary of State for Health and Social Care Steve Barclay after legislation passed earlier that year required the government to seek further information into the causes of disagreements between families of critically ill children and healthcare professionals (HCPs). The impetus for commissioning the review was a number of high-profile disagreements resulting in court action that highlighted the stress caused to both families and HCPs in such litigation. The report is the result of the Council’s investigation, which ran from December 2022 to September 2023 and involved a literature review, an open call for evidence, surveys, interviews and workshops.
The main themes of the report are the causes of disagreements about critically ill children, the impact of those disagreements, and resolution mechanisms.
For those interested in evaluating the role of mediation in these types of disputes, the report is conspicuous in its inability to evaluate. With empirical data presently lacking, the report’s recommendations call for further research on the benefits and suitability of mediation but fall short of any concrete recommendations on its application.
Litigation in such disputes is costly, can entrench divisions and can prolong the suffering of a critically ill child while the courts consider the application of the best interests test. In the case of Charlie Gard, the court suggested that mediation would be a more appropriate mechanism, and Charlie’s parents have campaigned for a law that would facilitate parents’ access to mediation. However, there is a lack of evidence on mediation’s value in such disputes, and without such evidence it is impossible to identify if mediation should be made more mainstream in these emotionally difficult cases. Our research aims to address this evidence gap.
While scant on empirical evidence which may help a cost-benefit analysis of mediation, the Nuffield report nevertheless includes some interesting findings. Of those HCPs who had not engaged in mediation, almost a third believed it could be helpful. Only 16 per cent of survey respondents who had engaged in mediation had a negative view of it.
Concerns from HCPs were raised, including about the timing of mediation. Mediation was seen as often introduced too late in the dispute process, once disagreement was already entrenched. One paediatrician responded by suggesting that mediation may act as a barrier to a good faith relationship between parents and clinicians, highlighting the opaque mechanics of mediation, where disputes play out behind closed doors.
Unfortunately, none of the parental respondents had personal experience of mediation. The report notes that parents had either wanted mediation, and not been offered it, or been offered it and declined it. Reasons against participation included believing that there was an inherent bias in the process – that they were to be brought round to the “doctors’ way of thinking”. This finding legitimises concerns from HCPs that mediation is often brought in too late, once trust has already deteriorated.
The review also provides insight into preferences for who conducts mediation. Some were said to have preferred a specially trained internal contact, though it is difficult to see how this may remedy perceptions of bias. The benefits of external mediation, chiefly impartiality and independence, may be a way to circumvent this, particularly if mediation is not utilised as an avenue at an early stage.
The report stops short of any specific recommendations on mediation, although mediation is included as part of the task for a proposed roundtable, to be convened by the Ministry of Justice. The roundtable would involve expert stakeholders, including parents, to commission further research on the efficacy and limitations of both mediation and the courts.
Fears of impeding access to justice for children and their families were held up as the most significant block to a mediation mandate, where mediation would be required in advance of litigation. Elsewhere in the justice system, mediation is being made mandatory, but the report was clear that there is no current evidence of its role in these disputes involving critically ill children that would support mandating its use. Maria Caulfield, a minister at the Department of Health, has said the government are currently considering the report’s recommendations, though no decision on implementation has yet been taken. The report is of course wide-ranging, and mediation formed only a small section of Nuffield’s review.
While there is currently no indication that government will expend resources on investigating mediation in these cases, it is clear that a sound evidence-base is needed for policymakers to make informed decisions. Our research, which will conclude with a full report of findings, may mark a watershed moment in understanding the value of mediation in these cases. For further information about our research on medical mediation, contact the Principal Investigator, Dr Jaime Lindsey at j.lindsey@reading.ac.uk.
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.
Margaret Doyle is a researcher, author and an experienced mediator, specialising in equalities issues and disputes between individuals and public bodies. She is accredited in special educational needs and disabilities mediation and in elder mediation. As a Visiting Research Fellow with the University of Essex School of Law, she combines her rights-based mediation practice with research that explores the role of mediation and ombuds in administrative justice.
