Safeguarding adults: Mediation and family group conferences

Working with adults - Mental Capacity Act 2005

The underlying philosophy of the Mental Capacity Act 2005 is to ensure that a person who lacks capacity is, as far as reasonably possible, empowered to make their own decisions.

Safeguarding procedures must recognise the rights of adults with mental capacity to make informed choices about the way they want to live and the risks they want to take. The Mental Capacity Act 2005 and its Code of Practice provides a framework to empower and protect people who are 16 years of age or more and who may lack capacity to make certain decisions for themselves. Anyone who works with or cares for a person who lacks capacity must comply with the Mental Capacity Act 2005 and must have regard to its Code of Practice when proposing to decide or act on behalf of that person.

Five key principles underpin work with those who lack capacity. The inclusive approach used in adult mediation and FGCs can help people participate as fully as possible in any act or decision affecting them. They enable people to explore choices and options in a supportive environment, increasing the likelihood of appropriate decision-making.

Mediation cannot be used to determine incapacity. However, this does not make the use of mediation inappropriate for people who lack capacity. It could be used to resolve disagreement around a person’s best interests, particularly where the best interests decision-maker has to balance the views or concerns of a number of people within a family, or between family members and professionals (Code of Practice section 5). Mediation could also be used in circumstances where an independent mental capacity advocate wishes to challenge the decision of a best interests decision-maker and they have exhausted all other means of resolving this through discussion (10.34). The Mental Capacity Act Code of Practice emphasises the use of mediation as an informal way to resolve disagreement and determine what is in the person’s best interests. It stresses the need for equality of participation and the use of advocacy to achieve this (15.10).

Mental capacity legislation

The Mental Capacity Act 2005 applies to England and Wales; however, the Northern Ireland regional procedures for safeguarding vulnerable adults (DHSSPS 2010) refer to the principles contained in Good practice in consent (DHSSPS 2003). The procedures also note that the Mental Capacity Act 2005 and associated guidance for England and Wales offer useful guidelines for determining individual capacity and ability to consent.

See the Enabling participation - Key steps section for further information on supporting people who lack mental capacity to make decisions.

Case studies