Jaime Lindsey and Margaret Doyle, University of Essex, School of Law
Fundamental disagreements between healthcare professionals and family members about the life and death of loved ones are, thankfully, relatively rare. It is even rarer for those disagreements to be resolved through the courts. The Archie Battersbee case has, however, brought this issue to the fore in recent weeks. For his family, their fight on his behalf was played out on the media stage at every turn. It ended in the 12-year-old boy’s death in hospital on 6 August 2022, a devastating outcome for his family. This followed several hearings culminating in an appeal to move him to a hospice being refused by the courts.
Others have already commented on the legal issues arising from that case, centring mainly on the best interests of the child. While we are sympathetic to the view previously put forward by others such as Dominic Wilkinson, and Cressida Auckland and Imogen Goold, of an alternative to the use of the best interests test in cases like these, for example the use of a significant harm threshold, that substantive legal discussion is not the aim of this piece.
Instead, our aim here is to consider whether, when these disputes do arise, there might be better ways to resolve them than going through the courts. For many, the court process is expensive, time-consuming, adversarial and, psychologically and physically exhausting. It is also uncertain, because the parties on both sides of the conflict must await an outcome determined by a third party, the court.
As a result, it has been suggested that mediation might be a better way of approaching these issues when they first arise, not least by Mr Justice Francis in the Charlie Gard case, who remarked that the case was calling out for mediation:
‘I recognise, of course, that negotiating issues such as the life or death of a child seems impossible and often will be. However, it is my clear view that mediation should be attempted in all cases such as this one even if all that it does is achieve a greater understanding by the parties of each other’s positions‘.Para. 20
Yet despite increasing emphasis on mediation in other broadly similar areas, including family law and clinical negligence, there is limited evidence about its use in medical treatment cases. Furthermore, in medical treatment disputes the aims of the mediation might not be, as they are often in these other areas, settlement rates and cost savings; mediation may require a different approach that instead prioritises the experiences of participants and the potential for a therapeutic outcome.
The use of mediation to resolve medical treatment disputes is the focus of a research project led by Dr. Jaime Lindsey with consultancy from Margaret Doyle and Sarah Barclay, funded by an ESRC New Investigator Grant. This research will consider whether there are any therapeutic, or healing, benefits of using mediation to resolve disputes that arise from health and care contexts, as well as considering the ways in which mediation could become more therapeutic as an intervention.
The research seeks to test, empirically, the various claims about mediation through qualitative analysis of mediation in medical treatment disputes, covering cases involving children (similar to those involving Charlie Gard and Archie Battersbee, for example) and cases involving adults under the Mental Capacity Act 2005 (similar to cases such as that of Aintree v James as well as wider health and care decisions). How best to resolve these disputes was also the topic of a project led by the Nuffield Council on Bioethics – Disagreements in the Care of Critically Ill Children – and is being looked at by the UK government, which in the Health and Social Care Act 2022 committed to undertaking a review into how to resolve disagreements in the care of critically ill children and to report within one year.
What is Mediation and Why Might it Help?
Mediation is one type of ‘alternative dispute resolution’ (‘ADR’), which is generally seen as more informal and flexible than court proceedings and has several perceived benefits for those who take part. For example, it can improve communication between parties, enable individuals to feel heard as participants and increase the speed of resolution. It also tends to be less costly than court proceedings and can take place in parallel, meaning that no delay is needed should those involved not reach agreement at mediation. However, cases involving medical treatment disputes, especially involving children, are highly emotive, often involve life and death issues and have evident power imbalances between family members and healthcare professionals, meaning that mediation is not always seen as appropriate. Furthermore, for mediation to work, all parties must voluntarily agree to its use, which is not always possible.
Despite the drawbacks, mediation might help family members come to terms with the issues at the heart of the dispute and help healthcare professionals fully understand family members’ perspectives. The realisation as a parent that you are not legally the final decision maker for your own child can be shocking and lead to a feeling of powerlessness in the interactions with healthcare professionals. It can take time and careful discussion to digest the realities when faced with your seriously unwell or dying child.
Conversely, healthcare professionals may benefit from hearing directly from the family, in a neutral venue, over a period of time, away from the realities of the hospital ward. For both parties, then, mediation might provide an opportunity to hear from and be heard, in a way that is not possible in the ordinary course of the provision of healthcare.
Yet mediation is not a cure-all to the difficulties that arise in these disputes, and it should not be discussed as such. Nor should it be seen as a route to compromise, something neither party in medical treatment disputes could countenance when issues of life and death are at stake.
In such contexts, the ‘stereotypical image of a mediated settlement model, often characterised in terms of a confidential carve-up borne of an unseemly horse-trade, need not apply. Mediation is a flexible tool, in which the ground rules and outcomes can be dictated by the nature of the dispute and the priorities of the parties.’ Unlike in clinical negligence disputes, the remedy sought in medical treatment cases is not a financial settlement, requiring a different ‘sensibility’ of mediation than that commonly used in civil and commercial claims.
One of the concerns, raised by Supperstone et al and other public lawyers, is the confidentiality of mediation when used in disputes with a wider public interest. It is important to draw a distinction between the confidentiality of the mediation discussion and the confidentiality of any agreed outcome. The former is the default position for most mediations, to allow for frank and honest exchange between the parties. The latter, however, is for the parties to agree, and in mediations involving a wider public interest, the parties can agree on a shared public statement on the mediation outcome.
Mediation in medical treatment disputes should be seen as providing a much-needed neutral space for careful discussion between parents and family members and the healthcare professionals, mediated by an independent and highly skilled facilitator. Working with the parties, the mediator tailors all aspects of the mediation process to the needs of all those involved and ensures each voice is heard. Getting the appropriate people to the mediation is important so that questions can be answered, interests explored and, where appropriate, consensual agreements reached on ways forward.
Mediations are often highly emotive meetings, and no more so than in this context. Crucially, any outcomes are ones the parties themselves have decided on, and in that way they are active participants reaching collective decisions. Where the parties in dispute must maintain an ongoing working relationship, this can be invaluable.
What’s the Evidence?
Despite the perceived benefits of mediation and the wide-ranging evidence from other fields, there is currently only limited evidence about its use to resolve medical treatment disputes. There is some evidence about mediation’s use in the linked areas of resolving paediatric conflict, adult care mediation and an interview study with participants in mental capacity law mediations, see Reimagining the Court of Protection: Access to Justice in Mental Capacity Law. Otherwise, the data on mediation’s use is incomplete.
As part of our current research on medical treatment mediation, we will be conducting direct observations of mediations, as well as interviewing and surveying mediation participants. Our research will provide much-needed evidence as to whether mediation does provide a more therapeutic way of resolving medical treatment disputes, and if so, in what ways.
The discussion about how best to resolve disputes between healthcare professionals and families will no doubt continue, with some advocating for greater parental rights and others maintaining that the current law is well suited to resolving these matters. What is clear, however, is that the legal process can reinforce disagreement and entrench positions.
Perhaps a different way of approaching healthcare conflict is required – one which values giving all parties the time and space to engage in early communication and to seek agreement on their own terms, with a neutral third party guiding them.
Yet the risks in using mediation are numerous: it is relatively empirically untested as a way of resolving these cases specifically (although the evidence is strong in other fields); it may lead to the interests of one of the parties being prioritised over the other’s; it may cause delay and lead to prolonged suffering for the patient; it may be felt by families that mediation is used merely to persuade them into agreement with the healthcare professionals; it may fail to prioritise the voice of the patient herself.
Using mediation to resolve these cases will not be a panacea. However, its potential is worth considering, and we aim to shine a light on it as a tool for helping to resolve these difficult cases in a more therapeutic way.
If you would like to know more about our research project looking at the use of mediation in medical treatment disputes, please contact Dr Jaime Lindsey, the Principal Investigator, at email@example.com.
 M. Supperstone, D. Stilitz and C. Sheldon, ‘ADR and Public Law’, (2006) Public Law Summer, 299-319, p. 313.