Mediation and the HSE – Can it be incorporated into the System?
Date: April 1st, 2011 | Filed under: Mediation & Company Law Articles | Tags: hse, mediationINTRODUCTION
Alternative Dispute Resolution and in particular Mediation, are gaining influence at a fast pace across the world. Here in Ireland, the EU Directive on Mediation will come into force in a matter of weeks. The Law Reform Commission has issued its Final Report, and Draft Bill, which would transpose the above Directive if enacted. The Courts have also realised the importance of ADR and Mediation and have issued various court rules which will be discussed below.
The HSE cost €15 billion to run in 2009, and it is the largest of any public sector organisation in the state[1]. The country is in an obvious state of disrepair and needs to find ways to cut costs without cutting quality. Litigation and settlements for medical negligence cases are a massive burden on the state. The HSE is funded for claims by the State Claims Agency under the terms of the Clinical Indemnity Scheme. Between 1st July 2009 and 31st December 2009, it was estimated that liability incurred to that date was €636 million[2].
Mediation and the HSE, can it work? I will look briefly at jurisdictions such as the US, particularly Chicago, and the UK and determine the position of ADR in health care disputes. I want to show that it is possible to implement an ADR structure into an organisation such as the HSE,and that it can cut costs and increase efficiency through open communication.
LEGISLATION
In its development of mediation, the EU issued a Directive[3], which is much welcomed and will bring clarification and definition to the process of mediation. It allows member states to apply the Directive to domestic as well as cross border mediation. It also permits the member state to go further in its clarification of the process. The Law Reform Commission[4] of Ireland published its final report and Draft Bill intended to transpose the above Directive in November 2010[5].
The Courts of Ireland have tested the concept of alternative dispute resolution, particularly mediation since the Civil Liabilities Act 2004[6]. The Commercial Court has also enabled a case management process which directs appropriate cases to mediation. This has proved very successful. It is no surprise that the courts are already preparing for the Directive and for a new Act in the area. Order 56A, Rule of the Superior Courts was also issued late last year. It allows the courts to suspend the litigation process in order to ‘invite’ appropriate cases to partake in mediation. This can be done on its own initiative or at the request of a party. It does not compel the parties to participate. It does however have the power to impose cost sanctions on those who unreasonably refuse to participate. This is in line with the English position as seen in cases such as Halsey v Milton Keynes NHS Trust[7].
In terms of personal injuries cases, and particularly medical negligence cases, should the Draft Bill be enacted, there will be significant changes in this area.
Section 26 of the Draft Bill provides for the effect of an apology in personal injuries proceedings. This allows for a healthcare professional to provide an apology in mediation before or after an action has been initiated, without the fear of express or implied civil liability. This apology would be inadmissible as evidence of liability in subsequent litigation[8].
Confidentiality of the process is a very significant consideration and is probably the most practically important for medical practitioners and the Health Service. Although confidentiality is provided for in the Directive[9], it is very weak protection. The LRC took this on board in drafting the Bill. It realised that a stronger protection was required to prevent incidences such as ‘satellite litigation’.[10] The LRC looked to the USA for inspiration and particularly the Uniform Mediation Act[11]. Under this model, the mediator holds a confidentiality privilege. This privilege was included in Article 7 (1) of the Draft Bill. The Mediator also retains this power[12].
The privilege is strong but not absolute. There are certain public policy exceptions[13]. It does however promote trust in the process and encourage open communication. Each participant must be aware that there are exceptions to the privilege but that it should not be abused and that these exceptions are very specific.
MEDIATION – WHAT IS IT?
The EU Directive defines mediation as a structured process where on a voluntary basis, a mediator assists the parties to reach an agreement to resolve the dispute. It may be initiated by the parties or on suggestion of the court[14] or by law.
The Draft Bill goes further than the above; it recommends mediation to be defined as a ‘facilitative’ and ‘confidential’ process where parties voluntarily attempt to reach a mutually acceptable solution to their dispute with the assistance of an independent third party[15].
An important inclusion in the definition is that it is not necessary to begin legal proceedings prior to agreeing to mediate[16].
A statutory definition of mediation would greatly encourage the process, and the use of it in sensitive areas such as medical negligence. The National Alternative Dispute Resolution Advisory Council Australia made a very incisive observation that accurate information leads to realistic and accurate expectations[17].
WHAT IS HAPPENING IN IRELAND’S HEALTH SERVICE?
The Health Service Executive is the body which governs the hospitals and health service providers in Ireland. The Irish state is at a time of crisis and needs to incorporate time and cost effective processes into its state run organisations. The cost of medical negligence cases in Ireland is unsustainable and needs to be dealt with immediately. An incorporation of ADR in health systems has proved successful in the US and mostly successful in the UK. I see no reason why it should not be integrated into the everyday structure of the HSE, opening communication and preventing weak cases ending in litigation or even settlement.
I note that the Health Act 2004, Part 9[18], provides for a new complaints procedure. This is to deal with the actions and failures of the HSE in public health and personal social services. It is focused on administrative practices and would not cover medical decisions by a person acting on behalf of the HSE or the Service Provider. Unfortunately this complaints procedure is not yet in place![19]
Ireland has an extremely adversarial approach in all disputes but this is particularly the case with medical negligence. Unlike other personal injuries cases, medical negligence cases are excluded from the Injuries Board. InjuriesBoard.ie is a statutory body which provides independent assessment of personal injury compensation for victims of Workplace, Motor and Public Liability accidents[20]. This Clinical Indemnity Scheme takes the responsibility of insurance for public hospitals and selected obstetric units in private hospitals out of the hands of the private insurer and places the burden on the state[21]. The reason for this was the extreme adversarial approach prior to the establishment of this scheme. Until this point, all medical personnel and their insurers had their own legal team. As one can imagine, this was a waste of money and created a serious overlap in case work. It also made the difficult task of litigation even more daunting for the patient involved in the proceedings.
Despite development in the area, the adversarial nature has not been disbanded. A claimant still has to overcome the Tortious obstacles the common law has put in place. Both causation and negligence must be proved on the part of the patient for the case to be successful at court. The claimant must show that the negligence caused the injuries being claimed for. This can be very difficult to show in medical cases as there may have been multiple possible causes. The statute of limitations has also been decreased to two years. In some incidences, a claimant may not be aware that an injury has taken place until the time limit has passed and a cause of action will be lost. The Supreme Court has realised that this may be unfair and have taken the attitude that the clock only starts when the person is in a position to reasonably know that an injury has occurred and reasonably know that it is related to the defendant’s conduct. The court will not accept a case that has not overcome these hurdles despite the tragic outcome which may have occurred. As a result, many unmeritorious cases are being pursued for far too long. Systems such as mediation within the HSE complaints structure would help to identify the weaker cases at an earlier stage, if appropriate training is in place[22].
UK AND THE USA
In order to look at and examine the structures within the Irish jurisdiction, I must briefly discuss what is happening in different jurisdictions. For this purpose, I have chosen both the USA and the UK. Both have tried to incorporate alternative dispute resolution procedures into their systems, particularly in terms of medical negligence situations. Spiralling costs, extreme delays and problems with access to justice meant that those in charge had to examine the alternatives.
It must be noted that as with Ireland, the NHS in the UK is state funded; while the US operates on a different system with hospitals being insured by private insurers.
The most prevalent system in America is in Chicago’s Rush Medical Centre, a voluntary co-mediation programme which was set up in 1995. This system is built into the hospital structure. Co-mediation involves more than one mediator engaged in a single matter. This type of panel was often used in complex commercial disputes. Mediation does tend to be tailored to fit the needs of each individual case. With the ‘Rush Model’, a party can request to enter evaluative mediation with a sole mediator such as a retired judge. The Mediation Agreement is simple and straight forward; it calls for a streamlined process with an early exchange of pre-mediation submissions and brief presentations by each side at initial mediation followed by caucuses. The Rush Model has seen a success rate of 80%, the programme is recognised in the U.S. as one of the leading ADR entities, due to its time and cost effectiveness. It is a neutral forum, which assures confidentiality and the expenses are shared equally amongst parties[23].
The NHS[24] in the UK has played a role in promoting ADR in the clinical setting. Their complaints procedure is designed to provide patients with an explanation of what happened and where appropriate, an apology. It does not however provide financial compensation for negligence cases.[25]
The NHS Litigation Authority [NHSLA] deals with all clinical and non-clinical negligence claims received by the NHS[26]. Since the year 2000, it has required solicitors representing NHS bodies to consider every case for mediation, to offer mediation in the appropriate circumstances and report those which are deemed unsuitable[27].
In the first year, the take up of mediation was slow. However the second and third year did see a significant increase in the number of cases being mediated[28]. In the second year, nearly 75% of cases were successfully mediated. The highest settlement at mediation was more than £7 million and the lowest was £11,000[29]. The NHSLA states on their website that only 2% of cases end up in court, whether through abandonment or settlement, and where it is possible, mediation is used.
The NHSLA has adopted a positive policy of encouraging and funding mediation in appropriate cases. Its experience has shown that the process benefits from a representative of the defendant NHS Trust at the mediation. This representative is able to provide an explanation, and/or an apology if required, even where there is no admission of liability.
The Legal Services Commission[30] is also prepared to fund mediation fees subject to reasonableness and proportionality. Both of these are encouraging moves and will help to enhance ADR, especially mediation in medical negligence claims.
CONCLUSION AND RECOMMENDATIONS
Simon Mills outlines various recommendations in his Article[31] and I must say that I agree with some of his view points. He believes that there is a need for specific legislation to deal with the peculiar situation of medical negligence claims. The draft Bill issued by the LRC would go a long way to achieve this. Its enactment is essential to the progress and development of mediation systems in institutions such as the HSE. An attempt at mediation should be an essential precursor to the issuing of legal proceedings in these cases. Mediation should be built into the complaints processes of both public and private hospitals as a necessary prerequisite for any litigation[32].
Mediation should be applied to all systems, for both patients and employees, from the moment of entry into the hospital until the point of departure. Patients continuing to receive treatment after a stay in hospital should also be catered for. This would ensure that communication paths are always open. Clear information on Mediation and how it works should be provided to both patients and healthcare providers. Every party should be confident in the system and accept it as part of the process. As was learned in the findings of both the Madden Report[33] and the Lourdes Inquiry[34], open communication is the key to solving disputes or possible complaints at an early stage, prior to litigation. This is in turn would lead to a more effective health care system.
Sarah Maura Byrne
[1]
[1] www.hse.ie
[2]
[2] http://www.hse.ie/eng/services/Publications/corporate/AnnualReport2009.pdf
[3]
[3] Directive 2008/52/EC – On Certain Aspects of Civil and Commercial Matters. This is due to be transposed by member states by the 21st May 2011
[4]
[4] Law Reform Commission (LRC)
[5]
[5] The Bill does go further in its definition and protection of the process than the Directive.
[6]
[6] Section 15 of the 2004 Act provided for Mediation Conferences in Personal Injuries Actions
[7]
[7] [2004] EWCA (Civ) 576
[8]
[8] www.lawreform.ie/_fileupload/Reports/r98ADR.pdf
[9]
[9] Article 7 Directive 52/2008/EC
[10]
[10] Satellite Litigation: Litigation arising from failed Alternative Dispute Resolution methods. This has occurred in the UK due to their lack of statutory recognition of confidentiality it mediation.
Farm Assist v DEFRA (No.2) [2009] EWHC 1102 TCC – A witness summons was issued to bring a mediator to court to give evidence on a particular mediation. The Judge did not strike out the summons on grounds of privilege. The case did not go to Trial, but it will be interesting to see how the UK courts will deal with this matter in the future and will the Irish courts be influenced.
[11]
[11] Uniform Mediation Act (UMA) became effective in the US in 2005
[12]
[12] Article 7 (2) of the Draft Bill
[13]
[13] Exceptions to this privilege include; enforcing or implementing a mediation agreement, to prevent physical or psychological injury or ill-health. It may be required by law to disclose information or to prevent the concealment of a crime. An important exception to be aware of is that the Mediator has the potential to waive this privilege to prove or disprove a civil claim concerning negligence or misconduct during mediation
[14]
[14] Article 3 (a) Directive 2008/52/EC – “’Mediation’ means a structured process, however named or referred to, whereby two or more parties to a dispute attempt by themselves, on a voluntary basis, to reach an agreement on the settlement of their dispute with the assistance of a mediator. This process may be initiated by the parties or suggested or ordered by a court or prescribed by law of a member state”.
[15]
[15] Section 4 (1) Draft Mediation and Conciliation Bill 2010
[16]
[16] Section 4 (3) Draft Mediation and Conciliation Bill 2010
[17]
[17] http://www.nadrac.gov.au/www/nadrac/nadrac.nsf/Page/Publications_Publications byDate_NationalADRTerminologyADiscussionPaper
Common definitions or descriptions of ADR processes ensure those who use, or make referrals to, ADR services receive consistent and accurate information, and have realistic and accurate expectations about the processes they are undertaking. This will enhance their confidence in, and acceptance of, ADR services.
[18]
[18] Health Act 2004 (Complaints) Regulation 2006
[19]
[19] www.hse.ie Health Act 2004 (Complaints) Regulations 2006, S.I. No. 652 of 2006
[20]
[20] www.injuriesboard.ie
[21]
[21]http://www.stateclaims.ie/ClinicalIndemnityScheme/introduction.html Obstetric practices in Mount Carmel Hospital, Dublin and the Bons Secours Hospital, Cork. A special, more elaborate, indemnity arrangement applies in respect of these institutions.
[22]
[22] This observation was noted in Lord Woolf’s paper on Access to Justice – Final Report, published in 1995. It can now be found at www.dca.gov.uk
[23]
[23] Blatt, Richard, Brown Max, Lerner Jermome Hon. Co-Mediation, A Success Story at Chicago’s Rush Medical Center, http://adrsystems.com/news/co-mediation.pdf
[24]
[24] National Health Service
[25]
[25] http://www.nhs.uk/choiceintheNHS/Rightsandpledges/complaints
[26]
[26] The NHS LA has five schemes to deal with negligence claims, three of these are for clinical negligence, CNST, ELS and the ex-RHAs scheme. Only NHS memebers are eligible for membership of the schemes.
[27]
[27] Mills, Simon, “We Need to Talk” – mediation in the clinical setting in Ireland. (2010), Medico-legal Journal of Ireland 16(2) MLJI 64.
[28]
[28] Donaldson, Making Amends, (UK: Department of Health, 2003) para. 23
[29]
[29] Ibid.
[30]
[30] The UK equivalent of the Legal Aid Board
[31]
[31] Mills, Simon, “We Need to Talk” – mediation in the clinical setting in Ireland. (2010)
[32]
[32] Mills, Simon, “We Need to Talk” – Mediation in the Clinical Setting in Ireland (2010)
[33]
[33] http://www.dohc.ie/publications/pdf/madden.pdf
[34]
[34] http://www.dohc.ie/publications/pdf/lourdes.pdf?direct=1
