The Medical Protection Society has welcomed efforts to encourage mediation in settling medico-legal disputes, but said that for this option to be effective, trained and accredited mediators, clear rules, and protocols tailored for the private healthcare sector, need to be included in the draft Mediation Bill.
With prohibitive medico-legal litigation, both in the public and private healthcare sector, increasing, the Health Minister suggested last year that these disputes should be dealt with differently – which various experts have long recommended, saying mediation offers a speedier, cheaper resolution than litigation, and can offer more flexible remedies.
Ulundi Behrtel, MPS head of services delivery – South Africa, said the society, in its submission to the South African Law Reform Commission (SALRC), welcomed efforts to encourage mediation and believed it could play a critical role in resolving patient complaints and avoiding protracted legal battles.
“However, for the process to work in complex cases, we need mediators with specialist knowledge and experience in medical negligence, and proper support for all parties involved including legal representation in high-stakes cases,” she said.
While MPS supports the Bill’s objective of promoting mediation to resolve disputes more efficiently and slash court backlogs, it is concerned about how proposals could affect more complicated cases, especially in the private sector, it said.
It urges a well-structured system that outlines when mediation is appropriate and when exceptions should apply, especially in complex cases involving medical negligence.
MPS also emphasised the need for more appropriately trained mediators and recommended all parties be required, or at least strongly encouraged, to have legal representation in the more difficult or high-stakes cases.
Additionally, MPS – which protects the professional interests of more than 300 000 healthcare professionals worldwide, including more than 30 000 in South Africa – suggested clear guidelines for when mediation can be bypassed and when certain cases should even be excluded from the process altogether.
See more from MedicalBrief archives:
Is mediation a better option in medico-legal disputes?
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Retired judge urges mediation for SA medical negligence claims