Safeguarding adults: Mediation and family group conferences
Case study: Christine
Christine is 72, she has lung and heart disease and vascular dementia. She has very limited mobility. Her husband, Harold, is 71 and also in poor health.
Christine had a stroke last year that caused significant cognitive impairment and a second stroke this year.
The options for Christine are:
- to return home, with or without home care
- to remain in hospital
- to be placed in a residential care home.
The local authority wants to move Christine to a nursing home and believes she may need to be subject to a Deprivation of Liberty Safeguards authorisation in order to travel to the home and stay there. It believes this is in her best interests and that Harold, due to his poor health, is unable to provide the level of care she needs at home. Harold wants his wife to return home and rejects any suggestion that this is not in her best interests.
Christine’s incapacity to decide where to live is not in dispute. A meeting involving representatives from the local authority and Harold did not result in agreement about Christine’s best interests. The care manager, Sean, suggests mediation to try to resolve the impasse. Harold agrees to be referred to mediation. The mediator, Siguta, visits Harold and Sean separately to explain the process and its underlying principles
Siguta considers whether Harold needs an advocate. Siguta visits Christine in hospital to gain as much information as possible about her past and present wishes and preferences. She also speaks with an independent mental capacity advocate (IMCA) who had previously represented Christine’s views. Due to Christine’s incapacity to decide where she lives, Siguta is satisfied that it would not be appropriate for Christine to take part in mediation and everyone agrees to this. However, Siguta will ensure that her views are represented in mediation.
Establishing the arena
At the mediation meeting, Siguta re-establishes the ground rules, including voluntary participation, confidentiality and the mediator’s neutral role. She explains that the outcome of mediation will be driven by Sean and Harold and she will encourage them to offer creative solutions to their problems.
Defining and clarifying issues
Siguta invites Harold and Sean to explain why they have come to mediation, what they each want to work out and what outcome they each want to see. She offers Sean and Harold an opportunity to respond to the other’s opening statement once they have both finished. Siguta begins to draw out ‘interests’ (what each person needs) rather than ‘positions’ (what each person wants), to begin to find common ground between Sean and Harold.
Agenda setting, prioritising and planning
Siguta decides that, despite there being some tension, it is appropriate for everyone to remain together in the joint session. She knows that if there is high conflict, she can suspend the joint session and set up separate meetings (‘caucuses’). Siguta encourages Sean and Harold to work together to produce a list of issues, which she writes on a flip-chart. This helps to ensure that no important issues are missed and also to plan the structure of the session.
Discussing the issues and generating options
Siguta takes each issue in turn, quickly establishing the following.
- While the local authority is willing to support Christine to return home and to offer 49 hours homecare, it believes that Harold will not cooperate with this and it would put an added strain on his health, which would also put Christine’s health and welfare at risk.
- Harold wants more home care, amounting to 63 hours per week.
- Harold is in despair at the prospect that he and his wife might be separated after living together for 40 years. He strongly believes the care he gives to his wife is better than the local authority can provide.
- Harold had occasionally stopped services in the past as he thought the services were unreliable and poor quality. He simply wants adequate support so that he can care for his wife at home.
- Christine has often expressed a wish to be at home with her husband.
- Harold would agree to a nursing home placement if he felt his wife wanted it.
- Harold should be consulted but a decision must be made in Christine’s best interests under section 4 of the Mental Capacity Act. A placement in a nursing home would almost certainly entail the deprivation of Christine’s liberty, possibly for the remainder of her life. Sean accepts that this should be the last option for the local authority.
- Harold acknowledges that his wife will need GP and district nurse support if she returns home.
- Sean thinks Harold finds it difficult to compromise. Harold believes that it is the local authority that has refused to compromise. Both men now appear to accept some responsibility for the breakdown in their working relationship.
Siguta tries to identify middle ground and help everyone to rebuild bridges, once again focusing on ’interests’. Sean adds that:
- the cost difference between 49 hours of support and the 63 hours that Harold wants are likely to be lower than the costs associated with litigation in the Court of Protection, which is where this dispute is likely to move to if agreement cannot be reached soon
- Harold’s carer’s assessment may be able to attract additional funding; it may be possible for care workers to attend later in the day, which is Harold’s wish
- both parties accept they have to establish a better working relationship
- the local authority will withdraw its wish to be an emergency key holder, to respect Harold’s wish for privacy.
Harold adds that:
- he could fund some additional care provision himself, which he has done in the past, if the local authority is unable or unwilling to meet his request for 63 hours’ weekly care
- Christine is more likely to make better progress at home where he is able to motivate and persuade her to accept care
- he is likely to feel better within himself if he can care for his wife. It gives him a sense of purpose and wellbeing
- Christine would not benefit from being separated from him.
Solutions and securing agreement
Siguta is able to secure a very broad agreement to Christine’s returning home, supported by the local authority’s care plan. However, Sean makes clear that this is subject to some conditions being agreed between Harold and the local authority.
Siguta observes that Sean and Harold are working together with more confidence. She checks that the options being generated have the potential to work, are likely to be accepted outside mediation and meet all of the concerns raised.
The mediation agreement
Siguta prepares an outcome statement describing what has been agreed and what further steps need to be taken, and by when. She asks Sean and Harold to show their approval by signing the agreement.
Follow-up and review
At Harold’s request, and in light of the fact that more detailed issues have to be agreed, a review meeting is arranged to take place in two months’ time. This provides everyone with an opportunity to check that the outcomes of mediation continue to work and, with their consent, to make adjustments to it to reflect any change in circumstances.