Use of Mediation for NHS Complaints Resolution

NHS Complaints Mediation
National NHS Complaint Managers Forum
Spring Conference – Thursday 14th March 2019
Alan Sharland, Director, CAOS Conflict
Management
CAOS Conflict
Management
© Alan Sharland 2019 WWW.CAOS-CONFLICT-MANAGEMENT.CO.UK Tel. 0(+44)20 3371 7507

NHS Complaints – An example case
Two parts:
1. Example complaint which was resolved
through participants’ use of mediation
process.
2. Effective and ineffective positioning of
mediation in organisational responses to
complaints, grievances and other dispute
situations.

Complaint made by a patient who was expecting to
keep a tooth through having treatment under
anaesthetic to enable dentist to do the ‘finer work’
needed on the tooth rather than remove it.
Once treatment started, patient was still moving
while under anaesthatic and dentist had to default
to removing tooth anyway.
Patient complained with assistance of Community
Health Council officer (yes this was some time ago).

Response to patient was crafted with assistance from
Medical Defence Union officer:
Reasons given in correspondence for removal of tooth:
• ‘Patient was disruptive under anaesthetic’.
• ‘Risk of infection due to poor oral hygiene’.
Correspondence back and forth for a year but no resolution.
Referred for mediation.

Met with Complainant and Respondent – both agreed to a Joint
Mediation Meeting to discuss the complaint:
Patient explained their point of view in ‘uninterrupted time’
given at start of any mediation to participants to give their
view before going into discussion.
Patient said they found it ridiculous that they could be
‘disruptive’ under anaesthetic as they are not conscious.
Also that they were offended/upset by suggestion they had
poor oral hygiene as they brushed their teeth regularly.
Felt let down that tooth was removed, when the point of
being anaesthetised was to prevent that.

Joint Mediation Meeting.
Dentist used their uninterrupted time to start explanation of
their reasons for removing tooth, using sheets of paper to
draw diagrams.
Acknowledged that ‘disruptive’ perhaps not best phrase but
was advised in discussion with MDU representative to use
‘technical’ language in case of a later tribunal. Also that risk of
infection is true for any patient, not specifically this patient
and so that was intention in referring to the risk of poor oral
hygiene. Apologised that treatment had not worked out as
expected but they had to make a decision in the moment of
treatment and because patient was moving they were not
able to do the finer work intended.

Joint Mediation Meeting.
Patient was satisfied with apology, chance to put their view to the
Dentist and hear their reply and were happy for the complaint to be
closed.
Case had been open for a year. Meetings between CHC officer and
patient and MDU officer and Dentist during that time to craft letters.
Frustration and resentment for patient. Worry and stress for Dentist,
concerns about reputation etc.
Mediation was completed in just under 2 hours. I would usually expect
mediations to be 3 hours and possibly even a second meeting having
come from a neighbour mediation background at the time.

NHS Complaints – Other Examples
Other types of situation that used mediation in subsequent
cases:
• Complaints subsequent to bereavement, brought by relatives about the care
given prior to death.
• Complaints by patients who have argued with Receptionists over arranging
appointments.
• Complaints about appointment ‘mix-ups’ where patients took time off work
but then found out wrong date had been given.
• Complaints relating to mental health difficulties and feelings of vulnerability or
not being treated respectfully.
• And, as in example given, complaints about treatment where communication
difficulties have affected patient/practitioner relationship.

NHS Complaints – Effective Positioning of Mediation
Effective Positioning of Mediation in a Complaints
Response System.
Most adversarial processes such as Complaints Procedures, Grievance
Procedures etc. integrate mediation at a particular stage within the
steps of the procedure and as a consequence mediation is used far
less than it could be.
An appropriate and more effective positioning of mediation is
alongside any such procedure so that it is available for
complainants/respondents to voluntarily choose to use at any time
during the life of the complaint or other dispute.

Effective Positioning of Mediation in a Complaints
Response System.
There is a myth that ‘Mediation is best used in the early stages of a
complaint or other dispute’. (System-led Process)
Mediation is best used at the time the participants
feel it is appropriate to their needs and context –
at whatever point in the life of the complaint that
occurs. (Client-led Process)

NHS Complaints – Changes to Processes
Insert at base of all correspondence to complainant and respondent:
There is a Mediation Service available for you to use as an alternative
approach to resolving this complaint should you wish to use it. If you
would like a no-commitment, confidential discussion with a Mediator to
find out more about this, so that you can decide if this is an option you
would like to pursue, please contact them on 123 4567 or please let us
know you would like a call so that they can make contact with you.
Complaints officers were also asked to say the same when in
telephone discussion with complainant/respondent.
Importantly they did not try to ‘encourage’ the use of mediation but
simply informed those involved of its availability. (Client-led)

NHS Complaints – Why lesser uptake of Mediation?
1. Grab it while you can – once offered, if not taken
up: ‘Mediation was refused’. System expects take
up at time of offering or ‘Missed your chance’.
Participants can feel less able to request it later as
can feel like ‘giving in’ to then ask for it.
2. Fewer opportunities within the life of the complaint
to use mediation as only offered at the ‘early stage’.
3. Requires Complaints Officers to ‘offer and
encourage it’ at a particular stage (System-led)
rather than simply inform. Can induce resistance
and turning down due to suspicion because not
client-led. Not really voluntary if only offered at a
particular time.
4. Can lead to subjective decisions by Complaints
Officers about whether to offer it or not, therefore
risks a level of ‘filtering’.
5. ….and many others…..

NHS Complaints – Why greater uptake of Mediation?
1. Always available – so statement is
‘Mediation has not been taken up so far.’
2. Continuous opportunity to use mediation
based on participants’ thoughts, needs,
feelings at different times in the life of the
complaint.
3. Complaints Officers can keep focus on
managing complaints procedure steps
and simply inform about Mediation
availability with no need to ‘offer it’ at a
particular stage.
4. Hence, no need for Complaints Officers
to assess whether to offer it or not.
Decision is client-led based on their
enquiry about it as an option.
5. …..and many more…..

NHS Complaints – QUESTIONS?
ANY QUESTIONS?
IF NOT TIME TO ANSWER WITHIN THIS SESSION
PLEASE FEEL FREE TO CONTACT ME WITH
THEM AT:
CAOS@CAOS-CONFLICT-MANAGEMENT.CO.UK
OR 020 3371 7507

Use of Mediation for NHS Complaints Resolution

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