Safeguarding adults: Mediation and family group conferences
Enabling participation - Key steps
Assessing capacity is a decision-specific test – a person may be legally capable of making certain decisions but not others. The mediator or FGC coordinator needs to be aware of the legal implications for a person over the age of 16 who lacks the capacity to make certain decisions. The key question for the mediator or FGC coordinator should be whether – with support – the adult has the capacity to participate in the mediation or FGC (CCEL 2012; Daybreak 2011).
The mediator or FGC coordinator should always assume that the person has capacity to participate in the process, unless there is evidence that they lack capacity. The two-stage test can support this assessment.
Even where a person has been assessed as having the capacity to participate in mediation or an FGC, the mediator or FGC coordinator is under a duty to ensure that the person:
- receives all the support they need to enable them – as far as reasonably practicable – to make decisions
- continues to be heard
- has access to an advocate
- continues to be able to participate.
If a person is assessed as lacking the capacity to make particular decisions and to reach agreement on the issues required by either process, it is not the responsibility of the mediator or FGC coordinator to advocate for that person. However, they do have a responsibility to ensure that the person’s past and present wishes and preferences are included in the process. Understanding the person’s wishes and preferences is a requirement of the best interests decision-making process for a person who may lack capacity (Mental Capacity Act 2005, section 4(6)). There may be a legally appointed person such as an attorney, appointed under a lasting power of attorney, or a court-appointed deputy who can represent the views of the person and make certain decisions on their behalf.
The preparatory phase of mediation or the FGC should be used to consider the capacity of everyone to participate in the mediation or FGC safely and effectively. This will allow the mediator or FGC coordinator to establish the exact support needed to get the most out of the session. The following questions may be helpful – in addition to those under section 2(1) of the Mental Capacity Act 2005 – when deciding the capacity of participants.
Can the person:
- understand what is being discussed?
- identify who the participants are?
- understand the role of the mediator (or FGC coordinator)?
- listen to and comprehend the story of the other participants?
- generate options for a solution?
- assess options?
- express a consistent opinion or position?
- make and keep an agreement? (CCEL 2012)
Adjustments will vary depending on the exact circumstances of the case. The mediator or FGC coordinator may need to make provision for:
- changing the length of the mediation session or FGC meeting
- changing the time of day (for example to deal with fatigue or medication)
- adapting written material so that it is easily understandable
- making aids to communication available for people who experience barriers to communication
- changing the location of the meeting, to enable easier access (CCEL 2012).
Sometimes a vulnerable adult will need someone to give additional support to them during mediation or the FGC meeting. They should have the emotional support and strength that comes from having someone present who is ‘on their side’. The person should be supported to:
- understand everything that is being said
- feel confident enough to be able to express their opinions, views and feelings
- feel certain that they are not being coerced into agreeing to anything they do not want to agree to (Daybreak 2011).
The mediator or FGC coordinator should talk to the other participants about the person’s need for additional support before the mediation or FGC meeting takes place, to ensure that they are fully prepared and supported.
A person could be supported by:
- a family supporter – selected by the person, a known family member or friend
- an independent advocate – supplied by an advocacy service, trained and with no prior relationship to the person
- a professional supporter – for example a care worker or (in mediation) a person’s legal representative
- an independent mental capacity advocate, in appropriate cases, where a person who lacks capacity has no network of support (other than paid staff) who take an interest in their health or welfare, or where there is a conflict of views between the decision-makers regarding the best interests of the person.
The mediator or FGC coordinator will always support the vulnerable adult to prepare for mediation or the FGC. This will include discussions about how they would like to present their own views to the other participants, in circumstances where no specific supporter is appointed (Daybreak 2011).
In an FGC, where a supporter is not a friend or family member, it is recommended that their role within the private family time is limited. In mediation, a supporter will usually remain with a person throughout the mediation process. They will also attend any separate meeting (‘caucus’), to ensure that any proposed agreement is voluntary and in the best interests of the person (CCEL 2012; Smyth 2011).
In mediation, the mediator is trained to address power imbalances and ensure that everyone is able to communicate their wishes effectively. They will offer neutral support to facilitate an outcome that reflects the wishes of the participants and prevents mediation from becoming a tool for coercion or undue influence (CCEL 2012).
Mediation and FGCs can be used to support people who lack mental capacity to make specific decisions, but special considerations apply. The mediator or FGC coordinator should receive training to ensure that they have a good understanding of the legal and policy framework for safeguarding adults with capacity, and in making best interests decisions for those who lack capacity. The necessary resources and procedures must be in place to support this in practice.
The Official Solicitor – who acts for people in England, Wales and Northern Ireland who lack mental capacity, and are unable to represent themselves where no other suitable person or agency is able and willing to act – has expressed concerns. A person who lacks capacity may be vulnerable if their needs are not fully recognised by the mediator (Official Solicitor 2011). The Official Solicitor has also raised concerns that the mediator may not be able to establish a relationship of trust with a person with mental illness or impairment in a short timeframe. The Official Solicitor has cautioned that even where, with support, a person might be enabled to engage effectively in mediation or other alternative dispute processes, the necessary support may be unavailable in practice.
In mediation every party must be capable of entering into an agreement voluntarily and without coercion by the other participants. Mediation or FGCs can be used to resolve issues relating to the best interests of an adult who lacks capacity, as long as the decision-maker is present.
If a person is assessed as lacking the capacity to make particular decisions, mediation or an FGC may proceed in their absence. The following questions need to be answered satisfactorily before the process can begin:
- How will the adult’s voice be included in the process?
- Will another person represent the adult – perhaps one who has authority to make decisions on their behalf – for example a court-appointed deputy or attorney?
- How will the mediator or FGC coordinator help a best interests decision-maker to encourage the person – or improve their ability – to participate as fully as possible in any decision affecting them?
- Is the outcome the least restrictive option in terms of the adult’s rights and freedoms? (Daybreak 2011; Smyth 2011)