Tuesday, 30 November, 2021
HomeTalking PointsUptake of healthcare mediation is slow, but Gauteng Health launches pilot project

Uptake of healthcare mediation is slow, but Gauteng Health launches pilot project

Although the take up of healthcare mediation has been slow, the SA Medico-Legal Association (Samla) has announced that Gauteng Health will go ahead with a proposal to launch a pilot project to investigate how it can make better use of mediation to save millions in litigation.

Medical litigation is pushing the country’s scarce gynaecologists out of work and threatening to bankrupt the national health system. Janine Simon-Meyer, trained in medical negligence and health sector mediation writes in a Bhekisisa report that more than 90 people have been trained to help with mediation but take up has been slow.

Simon-Meyer writes: “Dozens of people like me have been accredited as medical negligence mediators, but as yet few of us have been called on to do so.

“We’re a mixed group and include people such as medical negligence and personal injury lawyers, academics, mediators, healthcare practitioners, administrators – and me, this health journalist-turned-development communications practitioner.

“I was encouraged to respond to the Samla call for prospective mediators by friends in the field and got hooked because it’s immediate and effective. Health journalists tell the stories of people and systems in conflict, but mediators create a space to unknot the strands of the dispute and resolve it.

“In development communications, practitioners analyse evidence and strategise opportunities for communication and dialogue so people can make positive, healthy changes in their lives. It can take months or even years before this kind of communication results in measurable shifts in behaviour, social norms or local conditions. In mediation, it can take just one day to generate agreement, with immediate benefits for all parties concerned.

“Mediation can also help people to avoid the stress, uncertainty and high legal costs associated with litigation. It brings the events in dispute to a close instead of forcing patients to relive them as part of assessments and testimonies in the run-up to trial and in court.

“And mediation is also gentler than a trial. The mediator is a neutral third party who manages a process that is confidential, held in private and without prejudice. The parties are free to develop any settlement they choose, not one limited by law to monetary compensation.

“In the mediated space, parties can meet face to face. The injured party can find out what happened, and the practitioner and institution can explain. Pain and trauma are acknowledged, and relationships can begin to be repaired. Settlements can also mean quicker access to resources for essential rehabilitation such as occupational or speech therapy.

“Given the benefits, mediation’s slow uptake has been frustrating. It’s as though there’s a blank space between mediators and the women, men and children at the heart of the claims for alleged damages that continue to be lodged in court.

“This is not surprising. Mediation has been used to settle medical disputes in the UK, the US and Canada for years. But in South Africa, the field of medical negligence mediation is new and we have no blueprint to advance it. Networks that can refer patients to suitable mediators and organisational processes to develop professional forums or advisory and management services have still to accrete. Communities of practice must still evolve.

“So it’s not for nothing that words such as ‘ground-breaking’ and ‘pioneering’ have been used to describe mediation’s introduction into the health sector.

“But simply training mediators is not enough to bridge the gap between mediators and communities or to give life to Motsoaledi’s vision. Mediation is classically defined as a voluntary process. There can be no mediation unless the parties in dispute formally consent to do so and agree on a mediator.

“The South African Society of Obstetricians and Gynaecologists (Sasog), which predicted it would lose 100 members by the end of this year, in part because of high litigation rates, has become the first professional body to institutionalise a pre-mediation process. In the event of a dispute, the body now requires patients and doctors to agree to attend a free pre-mediation meeting to help them decide whether to mediate or proceed with litigation.

“It’s an idea introduced by the nonprofit training organisation Mediation in Motion, which offers free and no-risk preliminary meetings with its mediators. Now, Sasog is encouraging other medical bodies to do the same and indemnity insurers are supportive. At least one insurer, Constantia EthiQal, offers alternative dispute resolution mechanisms as part of its products.

“In Gauteng, medical mediators are themselves interrogating the pre-mediation process and how it could be used more broadly, especially as disputes can stem from something as simple as personality clashes to catastrophic breaches in the duty of care. The result is the Gauteng Pilot Medical Mediation Project.

“But some sceptics, especially specialist medical negligence and personal injury attorneys, aren’t convinced mediation is worth the effort. These professions remain hawkish on the issue of settlement agreements, arguing clients may agree to an inappropriate or prejudicial settlement in mediation when litigation could have achieved a better outcome or figure.

“Mediation in Motion founder Alan Nelson says the solution could be simple: each party could have legal representation. In mediation, the parties determine the outcome, giving lawyers an essential role in supporting and advising their clients, and helping to draw up the final settlement agreement.

“Many high-value medical negligence claims run on “contingency fees” or a system in which lawyers’ fees are, in part, related to the settlement figure. Any cuts to monetary compensation, whether it’s by a ruling of the Constitutional Court or by consensus reached in mediation, is likely to affect their practice.

“So while mediators never advise on the terms of a settlement, the benefits of the agreements generated through medical mediation in South Africa still need to be proved.”

[link url="http://bhekisisa.org/article/2017-08-23-00-mediation-could-ease-sas-medico-legal-woes-but-its-no-quick-fix"]Bhekisisa report[/link]

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