Can Mandela's model for restorative justice work in healthcare?

Nelson Mandela’s death last year prompted widespread reflection on achieving a peaceful transition to democracy in South Africa.

Rather than being motivated by the desire for vengeance, Mandela was a driving force behind the establishment of the Truth and Reconciliation Commission in 1995, a distinctive approach to addressing the aftermath of harm that emphasised healing over punishment.

‘Mandela’s Truth and Reconciliation Commission is a model of how restorative justice can help avert a legacy of bitterness after destructive harm’

Some critics accused the commission of letting some of the Apartheid regime’s worst criminals off the hook – but retribution was never the intention.

In consciously rejecting inflammatory “show trials”, the South African government chose to focus on repairing divisions rather than reinforcing them.

The proceedings were a valuable opportunity for perpetrators to give their testimony and admit their part in wrongdoing, and for victims to give their testimony and receive recognition for the injustice and hurt they had experienced.

The commission hearings, which finished in 1998, are a model of how the restorative justice process can help avert a legacy of bitterness following years of destructive harm.

Universal principles

The idea has since been widely adopted elsewhere, including Britain where it is being used in a number of settings. The Restorative Justice Council has set out its underlying principles as well as detailed best practice guidance, which is endorsed by the Ministry of Justice. The key points are:

• the primary aim is to repair harm;
• there should be agreement about the essential facts of the incident and an acceptance of involvement by the person who caused the harm;
• participation is voluntary;
• the process requires acknowledgement of the harm or loss experienced, respect for the feelings of participants and an opportunity to consider, and if possible, meet their needs;
• where amends are made the person harmed should be the primary beneficiary and this reparation should be acknowledged and valued; and
• the person facilitating the process must act impartially.

Restorative justice in practice

Restorative justice now has a significant role in the criminal justice system in England and Wales. According to the Ministry of Justice’s evaluation of its early pilot projects, restorative justice was associated with an estimated 14 per cent reduction in the frequency of reoffending and 85 per cent of victims who participated in face to face meetings were satisfied with the experience.

The principles of restorative justice have also been applied to education, where it is more commonly referred to as restorative practice. Here it is being used with some success to resolve conflict and tackle bullying, helping children understand the way their behaviour affects others and how to deal with conflicts which arise in the playground.

Restorative practices have also been used in workplace environments to settle grievances and disputes between staff members.

Given that restorative practice has achieved success in resolving conflict and repairing harm in other contexts, it is worth considering whether it could work within the NHS.

As events at Mid Staffordshire and University Hospitals of Morecambe Bay foundation trusts have clearly demonstrated, failings in the health service can cause tremendous harm and a legacy of mistrust. Adverse incidents and surgical complications can also cause real distress to the doctors involved in turn affecting their performance.

‘Doctors often feel “guilty, afraid and alone” when mistakes are made in a culture where failure is difficult to accept’

A recent study, published in The British Journal of Surgery, investigating the personal and professional impact of major clinical incidents on surgeons at two large NHS teaching hospitals in London found that most participants described the support they received from their employers as inadequate.

They said that debriefing or effective mentoring following serious incidents was rare, and organisations often reacted punitively while blame passing and personal rivalries dominated morbidity and mortality meetings.

This lack of support has some worrying implications.

First, clinicians may develop their own coping strategies to help them deal with what has happened. These can be positive, such as reflecting on and improving their skills, or more damaging, such as dissociation and increased alcohol consumption that are often associated with burnout. 

Other studies have shown that doctors can feel “guilty, afraid, and alone” when mistakes are made in a culture where failure is quite difficult to accept.

This can make it more difficult for doctors to communicate openly with patients and their families about what has happened, which in turn makes a formal complaint or legal action more likely.

And doctors who feel isolated in the aftermath of a clinical incident or are worried that they are going to be cast as the villain are inevitably less inclined to engage with root cause analysis, making it harder for poor medical practices and systems to be identified and addressed.

Focus on rebuilding trust

By contrast, a restorative approach provides an opportunity for those most affected by these events to talk about their experience in a process which is focused on rebuilding trust rather than punishment.

The person harmed can find out what happened and (ideally) receive some reparation while those involved in the incident can show they recognise the gravity of what happened and make amends. 

Clearly, the advantages would need to be carefully considered on a case by case basis.

‘In a restorative review individual doctors can work with a facilitator to explore what went wrong and its emotional fallout’

For instance, attempting to involve patients and doctors in the kind of formal conference traditionally used in restorative justice is unlikely to be appropriate in situations where doctors do not believe they are responsible for the harm or where legal proceedings have already been issued.

There is also the question of who would facilitate such a meeting – a trained practitioner would be essential – and set the ground rules to ensure the meeting was carried out in a safe and sensitive way.

Emotional fallout

Of course terminology such as justice, victim and perpetrator are pejorative and would not be suitable in this context.

Even if a meeting with the person harmed is not feasible, other restorative principles can still be employed to support doctors or departmental teams in the aftermath of a serious untoward incident.

For example, ethicist Suzanne Shale has developed a technique called “restorative review” in which individual doctors can work with a facilitator to explore what went wrong and its emotional fallout.

This provides an opportunity to examine which responses are constructive, such as the desire to atone for mistakes, and which might be more destructive, such as self-blame and recrimination.

As with all restorative processes, the objective is to help participants come to terms with what has gone wrong and promote helpful behaviour such as listening, apologising, being accountable and showing compassion so that something positive can come from the experience.

Reasons for optimism

Again, this approach is not for everyone and participants should be screened to check their suitability.

But despite some obvious warnings there are reasons to be optimistic about the potential of a restorative approach within healthcare settings.

And it is surely worth exploring how restorative approaches used in education and the workplace to resolve conflict and strengthen relationships can be applied within departmental teams.

Campaigners, patients and doctors have accused NHS managers of not being sufficiently sympathetic or supportive in the aftermath of serious untoward incidents. In the wake of recent events this has to change or there will be a lasting legacy of distrust among the public and an alienated medical profession.

Restorative processes offer a golden opportunity to rebuild relationships after harm has occurred. It will be interesting to see if NHS trusts agree.

Dr Mike Roddis is former consultant pathologist and NHS medical director. He specialises in professional development and organisational troubleshooting for trusts and in the independent sector