Mediating Clinical Claims

The NHS Litigation Authority (now NHS Resolution - 'NHSR') 2015/16 annual report stated that the authority received 10,965 clinical negligence claims. 

The estimated proportion of what the NHS expend on legal costs is over one-third of their total outlay. The efficient, economic and acceptable resolution of clinical claims is a matter of pressing urgency for the cash-strapped NHS.

As part of its examination into the best ways to achieve efficient, economic and acceptable resolution of clinical claims, The NHSLA (now the NHSR) ran a mediation scheme from mid-2014 to the end of 2015. Following the success of the pilot scheme, NHSR have promulgated a permanent mediation scheme. CEDR is one of the two appointed suppliers of mediations to this scheme, with Tony Allen being one of the leading mediators.

One of the leading cases dealing with mediation generally is an appeal relating to a clinical negligence claim – Halsey v Milton Keynes NHS Trust – probably the most discussed decision in the whole area of mediation. A very significant part of the Halsey judgment which had a very considerable impact on subsequent practice about whether judges can require parties to use mediation has been unofficially recanted in principle. Tying down what Halsey precisely means a decade since it was decided is important for mediation in general, and in particular for the mediation of clinical claims.

Clinical negligence mediation is one of the most emotion-driven forms of mediation. Undertaking a clinical negligence mediation enables parties to discuss remedies not available in court, including fast dispute resolution; improving clinical processes and procedures; avoiding damaging publicity; apologies or compensation where appropriate and the ability to restore relationships and trust.

With the use of mediation of clinical claims increasing year on year Mediating Clinical Claims dispels the ignorance of what mediating clinical claims involves. It:

• examines what cases are or are not suitable for mediation or other methods of resolution
• examines whether a case needs mediation and whether it is ready for mediation
• examines what goes on at each type of settlement process and the differences in legal framework between them, and also between other settlement processes and court-room trial, so that informed choices can be made to suit the parties who can so easily lose control of their own claim and defence to professionals.
• provides a full discussion of the issues that relate to confidentiality as they relate to clinical negligence claims
• puts clinical mediations into context by using numerous case studies
• gives consideration to the parallels and differences between clinical and other injury claims, eg personal injury claims
• analyses and clarifies the legal context in which clinical negligence mediation has grown

Mediating Clinical Claims provides mediators, claimants, healthcare professionals and their legal representatives with all the guidance they need to ensure that a successful and fair outcome is achieved for all those involved in such mediations.