Judicial review, or mediation... or both?
How mediation can help when judicial review seems like the only option, in health and social care
By Arabella Tresilian, MMF Associate Mediator
The last two years of pandemic have directed a spotlight on the world-class services provided to the UK by our health and social care providers, and on the dedicated professionals who make those services available to us.
At the Medical Mediation Foundation, we have also seen at close hand how the pressures of Covid-19, with their consequent strains on systems and resources, have resulted in disputes and conflicts, causing distress for all involved, whether patient, professional, relative or carer.
At times, the courts are called upon to resolve disputes about the decisions and actions of health and social care organisations in the public sphere. Mediation is a dispute resolution option that can be used effectively in health and social care, before, during or after court proceedings.
Here we encourage public service professionals, public law practitioners and individuals to explore the efficacious option of mediation and the role it can play, with regards to judicial review.
What is judicial review in health and social care?
Judicial review is a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body (1). Judicial review can be used when a public authority has:
- acted in a certain way
- failed to act in a certain way
- made an unlawful decision
Broadly, a decision or action by a public body can be overturned - urgently if required - on the grounds of ‘illegality’, ‘procedural unfairness’, ‘irrationality’, or where it is incompatible with an individual’s human rights. Examples might include:
- An NHS hospital makes a decision to put a 'do not resuscitate' on a patient's note without discussing it with the patient or their family
- A clinical commissioning group refuses to fund a certain treatment which the patient/ family believes they have a right to
- A local authority makes a decision that does not comply with its own internal rules or policies
Understanding the scope of judicial review in health and social care
It is helpful to understand the limitations and constraints applicable in judicial review. The Courts and Tribunals Judiciary clarifies that:
"Judicial reviews are a challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached. It is not really concerned with the conclusions of that process and whether those were ‘right’, as long as the right procedures have been followed. The court will not substitute what it thinks is the ‘correct’ decision. This may mean that the public body will be able to make the same decision again, so long as it does so in a lawful way.’ (2)
Thus, if a claimant wants to argue that a decision was incorrect, judicial review may not be the best route. There are alternative remedies, such as appealing against the decision to a higher court. However, even in the higher courts, it can be difficult to achieve a desired change of decision, leaving claimants feeling frustrated and hopeless - and with relations between professionals and patients now even more strained
Mediation as an ‘alternative’ to, or a partner to, judicial review?
On the 10th November 2021, Sir Geoffrey Vos, Master of the Rolls, told the Civil Mediation Council & College Of Mediators Annual Mediation Conference: "There is nothing 'alternative' about dispute resolution. Mediation is a profession of the future."
Public law practitioners will be the catalysts for the future growth of mediation in judicial review. The exigencies of Covid19, not to mention the rapid advancement of online mediation, have helped facilitate a new interest in mediation, however, knowledge about mediation amongst lawyers remains variable.
In Mediation in Judicial Review: A Practical Handbook for Lawyers, by Varda Bondy and Margaret Doyle (2011) (3) , the authors note that their empirical research (4) revealed that ‘all the successful mediations resulted in outcomes that gave claimants more than they could have achieved had they been successful at court.’ However, they go on to state, the empirical research also ‘showed that many public law practitioners have no detailed understanding of the mediation process and confuse it with other forms of settlement negotiations such as roundtable meetings’.
At the Medical Mediation Foundation, our experience shows that mediation as part of judicial review proceedings can play a valuable role on several grounds, for example by:
- Offering a closed, confidential forum for open ‘without prejudice’ (5) conversations
- Creating psychologically-safe spaces where all stakeholders, in particular patients or family members, can feel confident to speak and feel heard
- Undertaking private meetings so all parties feel the mediator understands not only their position but their emotional needs too.
- Facilitating a flexible but well-held process of joint meetings, in a way that can’t easily be achieved in a roundtable without a neutral chair who is conflict trained.
- Assisting the parties to negotiate constructively, and also coaching parties separately in how to express their positions for successful outcomes.
- Facilitating lawyers meetings in order to advance negotiations
- Supporting parties in complex decision-making, at a level of detail that a court might not have scope for
- Reality testing any decisions with parties as they determine their outcomes
- Allowing space for acknowledgements, apologies and reparations where appropriate.
- Facilitating the creation of a binding agreement that can act as a Tomlin or consent order, in order to stay or end legal proceedings.
Considerations of involvement, participation and improvement
Patient and public involvement (‘PPI) in the evolution of health and social care services are now embedded as best practices within the NHS (6) and the National Institute of Health Research (7), and service user participation marks the touchstone for improvement of NHS services.
In 2020, Dr Neil Churchill, Director for Experience, Participation and Equalities at NHS England wrote that (8), “Having service users involved in decision-making and priority setting is absolutely vital to an NHS that really works. Without true involvement of the people that we serve, we will not be delivering what is genuinely needed.”
So, if judicial review seeks to challenge decisions made by public bodies, does mediation honour this vision?
Judicial review serves a wider public interest, in that a court’s ruling over a public body’s decision-making or actions may be made public, thereby affecting the decision-making and actions of other public bodies. Many judicial review cases will require the parties to make a public statement about the outcome, and this is particularly important when a wider community is involved (eg closure of a hospital) or other individuals are affected (eg a policy change in entitlement to services).
One of the pillars of mediation is that of the ‘confidentiality’ of its process and outcome. To ensure that stakeholders and the public remain informed of matters of interest to them, a mediator can explore with parties from the outset, the topic of agreeing a public statement on the outcome of their mediation. Establishing the boundaries of confidentiality, early on, can give confidence and clarity to all parties.
Involvement of litigants
In litigation, litigants themselves can be sidelined, as representatives will typically speak on their behalf in court. Mediation facilitates the direct involvement of litigants, and allows time and space for their voices to be heard. The flexibility of the process also means that mediators can meet with people who are in hospital, in a care home, in bed - or wherever is most comfortable and accessible for them. Given the principle of ‘nothing about us without us’ (9) in the disability rights movement, the advantages of mediation over litigation in health and social care become more apparent.
Opportunities to collaborate on improvements in public services
It is possible for mediation to create unique opportunities for collaborations on improvements in public services. For example, a judicial review process might be initiated involving a local authority policy on entitlement to social care services for disabled people, and the mediated discussion and outcome could result in the collaborative redrafting of the policy and an agreed public statement. In contrast, a court would only be able to order the local authority to go away and change the policy, but not give input or direction on how to do so.
When to mediate in judicial review - before, during or after proceedings?
Judicial review effectively has four stages:
- Post-issue but pre-permission
- Following a substantive hearing
Let’s consider how mediation might contribute at different phases of the judicial review process.
Pre-issue and/or Post-Issue but Pre-Permission
Mediators will always suggest that mediation done earlier rather than later is wise, and here the courts concur. The Pre-Action Protocol for Judicial Review issued by the judiciary in 2002 states that alternative dispute resolution must be explored, stately clearly:
“The courts take the view that litigation should be a last resort. The parties should consider whether some form of alternative dispute resolution (‘ADR’) or complaints procedure would be more suitable than litigation, and if so, endeavour to agree which to adopt. Both the claimant and defendant may be required by the court to provide evidence that alternative means of resolving their dispute were considered. Parties are warned that if the protocol is not followed (including this paragraph) then the court must have regard to such conduct when determining costs.” (3.1) (10)
A successful mediation instead of judicial review is especially valuable to preserve relations. It can be undertaken with or without lawyers present, as preferred by parties. Without lawyers present, any agreement will generally be informal or non-binding, but may become the basis of a later memorandum of understanding.
Even if mediation does not resolve the dispute at a ‘pre-permission’ stage (i.e. when the court has not yet given permission for a hearing), it can serve to crystallise the issues before court proceedings are initiated. Obviously costs will be saved the earlier the mediation, so mediation following a ‘letter before action’ (pre-issue) can be opportune.
Once the court has granted permission for a hearing, there is greater incentive for the respondent to seek a mediated settlement. The post-permission stage is where most mediations and settlements happen, and mediation can bring added value in comparison to roundtable settlement meetings, as discussed above, and in the following snapshot of a case study from the Public Law Project research.
Marion, a severely disabled woman in a long-term NHS facility, required regular intimate care. This had been provided by female nursing staff for 32 years. Changes in shift procedures meant that the PCT could no longer guarantee female carers; Marion was horrified that her intimate care might be provided by a non-female carer:
"Proceedings were issued, an injunction obtained and permission for judicial review was granted. The last circumstance provided the trigger for the PCT to agree to mediate, as proposed by Marion’s solicitor.
The mediation took place over a single day and involved Marion, her solicitor, and representatives of the PCT and their legal team. The mediator, who was not a lawyer, was experienced in dealing with disputes involving religious principles. By the end of the day, a settlement was reached. The PCT agreed to train female auxiliary staff to provide home care and to use female agency staff where necessary. This would apply not just to Marion herself, but to other service users as well.
Marion’s solicitor believed strongly that by meeting her client and hearing her tell her own story the PCT was made aware of the day-to-day reality of her disability and the depth of her concern about who should provide her intimate care. It was suggested that being faced with a human being made all the difference to the PCT’s attitude." (11)
Once proceedings have begun, they can then be ‘stayed’ (paused or stopped) by the presentation to the court of a mediation agreement, and such an agreement can be treated as a consent order or a Tomlin order.
Following a substantive hearing
If the public body’s decision is overturned by a substantive hearing, and a court order is issued to that effect, the route towards determining the new decision pathway may need the close collaboration of all stakeholders, who may now feel bruised and alienated by the win-lose nature of those court proceedings. In this instance, mediation can act to help parties to restore mutual trust, decide on future working relations, and discuss how to collaborate towards following the court order.
Where the court ultimately does not overturn the public body’s original decision, or find illegality, then post-proceedings mediation may play a vital role in helping parties to rebuild relations and make some consensual decisions towards future collaboration.
Start a New Conversation
If you feel that judicial review is the only option for you, or are already involved in judicial review proceedings, you are welcome to get in touch with the team at the Medical Mediation Foundation. No matter how difficult or complex the current situation is, we can support you to start a new conversation.
(3) Bondy, V. and Doyle, M., 2011. Mediation in Judicial Review: A practical handbook for lawyers. The Public Law Project.
(4) Bondy, V., Mulcahy, L., Doyle, M. and Reid, V., 2009. Mediation and Judicial Review: An empirical research study. The Public Law Project.
(8) NHS blog
(9) Tom Montgomery & Simone Baglioni (2020) ‘Nothing about us without us’: organizing disabled people’s solidarity within and beyond borders in a polarized age, Social Movement Studies, DOI: 10.1080/14742837.2020.1770069
(11) Bondy, V., Mulcahy, L., Doyle, M. and Reid, V., 2009. Mediation and Judicial Review: An empirical research study. The Public Law Project. (p.78)
Arabella Tresilian is a CEDR-accredited mediator specialising in health and social care. She undertakes mediations involving families and professionals in the NHS and with local authorities, with a special interest in mental health, disabilities, end of life care planning, judicial review, the Court of Protection, the Mental Health Act and the Mental Capacity Act.