Can mediation avoid litigation in conflicts about medical treatment for children? An analysis of previous litigation in England and Wales

Abstract

ObjectiveTo investigate the reasons why parents disagree with their clinicians in cases reaching the court and to estimate the number of cases in which mediation might have avoided litigation.DesignAnalysis of 83 published cases regarding medical treatment decisions for children initiated either by an NHS Trust or Local Authority between 1990 and 1 July 2022.ResultsThe analysis found that the main areas of contention are different value judgements, different interpretations of observable events such as the health of the child, their quality of life or burden of treatment and relational issues (ie, loss of trust). More than half of the cases are estimated not to have been preventable by mediation because either no conflict existed (n=13) or the parental decision was based on strongly held, mostly faith-based, views unlikely to be open for discussion (n=31).ConclusionThe potential of mediation to avoid future litigation may be more limited than hoped for.

Navigating conflict: The role of mediation in healthcare disputes

“…Disagreements about the provision of health and care to patients can arise for numerous reasons: there may be a breakdown in trust between HCPs, patients and family members, there may be differing values underpinning different perspectives on which treatment is necessary and there may even be resource factors at play. 7–12 When disputes arise, they operate within a legal framework, which acts as the backstop to this conflict. Those who work outside of law or healthcare are often surprised to learn that patients themselves, or their family members, do not always have the right to decide whether and, if so which, healthcare is provided.…”