If the provisions of the Kouchner law of 2002 on patients’ rights made it possible to avoid, in France, a phenomenon of judicialization of health, several cases have, in recent years, hit the media headlines and influenced medical practice. In the area of the patient-doctor relationship, the files mainly concern surgical procedures and diagnostic defects. How can we prevent such disputes from ending up in court? On the solutions that mediation can provide, the view of Me François-Xavier Gosselin, lawyer and mediator in Rennes.
– Why Doctor: How can mediation be interesting in health matters?
Me FX Gosselin : Mediation is interesting, in health as in other areas, because it allows parties who are in dispute, in conflict or perhaps even already in proceedings to find an amicable solution that they will construct themselves. same. They do not hand over their dispute to a judge or an arbitrator, they decide, through a mediator, to construct the solution that will allow them to resolve their dispute.
Most often they do this with the idea of being able to continue their relationship at a later date or because the fear of a long, uncertain, difficult, costly trial makes them think that it is preferable to find a solution that is both negotiated and co-constructed. This is how it differs from many other alternative methods, such as conciliation commissions.
– Wasn’t this precisely the objective of the Kouchner law of 2002 on patients’ rights which created conciliation commissions supposed to avoid judicialization of conflicts between patients and health professionals and which today deal with about half of these cases?
These commissions only allow us to see disputes between health professionals and patients. All other health disputes, between practitioners, between practitioners and establishments, with social organizations do not fall within the jurisdiction of the CCIs.
The CCIs were actually created by the Kouchner law and everything differs between them and mediation. First, they only issue an opinion that the parties will follow or not follow and if they do not wish to follow it, they will go to court. And then the Cci are made up of a certain number of health professionals or people particularly interested in health who will contribute to the opinion. And the fundamental difference with mediation is first of all that the parties do not participate in the decision or the opinion, they only express their opinion as in a procedure, and then they do not discuss between themselves. they of the solution to be built.
So there is a really profound difference between the conciliation commission which actually makes it possible to issue an opinion and find a rapid solution through health professionals and mediation which invites the parties to concentrate on their own. own solution.
– And what is the place of mediation in the event of a referral to the Council of the Order?
It is true that ordinal procedures also provide for a conciliation phase. But first of all, nothing prevents the parties, conventionally, from saying that, before the Order is seized, they could discuss among themselves. Nothing prevents the parties, when a conciliation has failed before the ordinary court, from continuing their discussion in a mediation framework which has the double advantage of delay and confidentiality – by definition and by operation of the law, mediation is in fact completely confidential – and to inform the Order if an agreement is reached at the same time and there is no longer any need for a procedure. Afterwards, the Order, if it has detected an ethical infraction, can decide to continue its procedure, but in this case it is completely separate. In any case, from a civil point of view, mediation makes it possible to reach a solution.
– Who can choose to use mediation?
Everything is possible. There can first of all be a conventional mediation which is originally planned: MX enters into a contract with Mr. Y which provides that if there is a difficulty, before any other reaction they will go through mediation. Parties who are in conflict can intelligently talk to each other and say that before starting proceedings they will try to find a mediated solution. Or the parties, when they have launched a procedure, may be invited by the judge, without the latter being able to impose them, to attempt mediation. And this can be done at any stage of the procedure, including before the Court of Cassation.
– In health matters, there are sometimes cases which initially pit two parties against each other, for example patient against doctor or doctor against establishment, but which ultimately concern the majority. Doesn’t mediation risk not letting justice do an important part of its job, which is to defend the interests of society in general and not just to resolve a dispute between two parties?
We must not forget that mediation has a conventional aspect. This means that the parties are free to enter the mediation process but also free at any time to leave it. In other words, no one can force someone to participate in mediation. It is a voluntary approach. So much so that we can doubt that on important matters, on matters which require the company to be represented, parties will decide to go to mediation. And in any case, the mediator can only accept mediation if there is no violation of public order. And then nothing prevents justice, and in particular criminal justice, when it becomes aware of an offense from putting in place a specific procedure.
