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From lose-lose to win-win: the key role of mediation in the healthcare regulator of the future

In her guest blog, Jennie Jones from Nockolds discusses what potential role mediation might play as part of regulatory reform - picking up on some of the themes discussed as part of her joint presentation on alternative dispute resolution at our March Academic and Research conference. You can find out more about our proposals for reforming fitness to practise processes here.

During the past quarter, Covid-19 has vastly impacted the landscape of healthcare not only by putting strain on the system, but by forcing changes to methods and practices to accommodate safety measures put in place to prevent the spread of the virus. This has put pressure on healthcare regulators by creating an additional workload to the regulatory backlog that already exists, requiring regulators to find more agile models to reduce the volume of work to a manageable level. This is where Alternative Dispute Resolution (ADR) can help.

What is Alternative Dispute Resolution?

ADR refers to methods of resolving disputes without having to go to court. One of these methods is mediation, in which an unbiased third party helps those involved in the dispute to come to a mutually acceptable outcome.

The main area in which mediation can relieve pressure is Fitness to Practise. In the Government’s response on Promoting professionalism, reforming regulation (published in July 2019) it was acknowledged that the UK’s model of professional regulation for healthcare professionals had become increasingly complex, outdated, adversarial and legalistic. The document made specific reference to the use of mediation, and set forth the Government’s commitment to enable regulatory bodies to include this form of dispute resolution in their fitness to practise processes.

This document was written well before Covid-19 became a national healthcare issue; therefore, the strain on regulators caused by the pandemic has placed even more emphasis on the need for streamlining FtP processes, so that regulators can pour their resources into managing more pressing issues. Unnecessary investigations into low-level complaints slow progress, and during these unprecedented times, progress must be made to alleviate stress on the healthcare system and future-proof it against repeated mistakes.

A mediation model acknowledges and addresses the emotive nature of complaints through a simple, proportionate and relatively high pace methodology.

This model has been proven to support the progression of FtP concerns in an efficient and timely fashion; protect the public; maintain trust in healthcare professionals; drive improvements in standards; and safeguard the health and wellbeing of professionals by reducing practitioner distress caused by inappropriate referrals into FtP.

The success of mediation in other industries

Mediation has already found favour in the optometry and veterinary fields. Nockolds began delivering complaint resolution and mediation in the optometry field as the Optical Consumer Complaint Service (OCCS) in 2014 and in the veterinary field as the Veterinary Client Mediation Service (VCMS) in 2016.

The OCCS and VCMS handle 3,900 complaints a year, either received directly from the consumer, directed to them by practices, or referred by the Regulator. Regulator referrals account for, on average, 16% of complaints, and these would otherwise be looking to escalate to FtP, legal proceedings, or social media reviews.

The model provides a cost-effective, proportionate resolution focused approach to the resolution of low-level concerns. Recent analysis of the OCCS reveals the service has successfully evolved to handle a 259% increase in volume, while delivering a 60% reduction in unit cost per complaint referral. With short- and medium-term uncertainties regarding register numbers and therefore retention fee income and available budgets, the need for value for money is an increasing priority.

Both services have prompted positive feedback from consumers and professionals in their respective industries. This feedback notes the quick and fair mediation process, the team’s ability to guide parties through delicate and challenging negotiations, and the facilitation of a learning culture (as both services are committed to delivering key insights from complaints back to the professions).

The latter point was reflected in a presentation by Nockolds given earlier this year at the Authority’s Academic and Research Conference. In addition to sharing insights from five years of work by the OCCS and General Optical Council, the presentation encouraged delegates to consider how to use the information to implement Government recommendations regarding ADR. Further to this, Nockolds proposed the possibility of a significant Continuing Professional Development programme based on these insights, with the aim of improving standards through key insights from complaint mediation. This concept can easily be applied to the healthcare sector, raising the bar for what is taken on by healthcare regulators in this ‘new normal’.

In conclusion

Covid-19 has put pressure on healthcare regulators to deal with challenges such as the inevitable influx of patient complaints; administrate temporary registers for professionals for those returning to the professions and an increase in new registrants in the form of graduates drafted during the pandemic; and the implications surrounding the increasingly necessary utilisation of remote consultations. Therefore, regulatory policy must adapt quickly while ensuring that high standards are maintained, and ADR and mediation is one of the most efficient and cost-effective ways of achieving this. Mediation has proven to be an effective approach to the resolution of low-level concerns. As regulatory reform progresses, many regulators are exploring how mediation may provide the answer to remodelling the FtP process, and become an available alternative in concerns which do not require the full, traditional FtP process and investigation.

The core principles of this model can be adapted to suit a broad range of clinical disciplines. Reflecting on your regulatory practices, Nockolds continues to pose the question:

How could effective ADR help ensure regulation in healthcare professions remains relevant and sufficiently agile to meet current and future demands?

Related material

Find out more about our thoughts and proposals on fitness to practise reform:

You can read Jennie's joint presentation with Richard Edwards at the Academic and Research conference here.

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Please note the views expressed in these blogs are those of the individual bloggers and do not necessarily reflect those of the Professional Standards Authority.