Code of conduct
Below is our code of conductor for mediators acting on behalf of the Medical Mediation Foundation (“MMF”).
1.1 This code applies to any person who acts as an independent third party (“Mediator”) for The Medical Mediation Foundation (“MMF”) in order to support participants to come to a decision relating to medical treatment.
1.2 Medical Mediation refers to:
(i) the process whereby a Mediator supports one or more people who have a disagreement about medical treatment (whether they are a patient, family member, clinician or other health professional) to come to a decision as to what is in the best interests of the patient, or
(ii) the process whereby members of a team or different teams have or are in conflict about, any matter arising in relation to the provision of delivery of medical and/or nursing care either generally or in a specific case.
1.3 This Code applies whether or not any of the participants are legally represented or whether or not there are and/or have been any legal proceedings in respect of the patient or any participant.
1.4 “Mediation” means the mediation to which this Code applies. “Mediator” means any person offering such mediation who has been appointed by MMF to undertake such mediation. “Participant” means the patient, any family member, health professional or any other person taking part in mediation.
2. Impartiality and conflict of interest
2.1 When allocating work to a Mediator, MMF will use its best endeavours to ensure that there is no apparent or real conflict of interest.
2.2 The Mediator shall act and endeavour to be seen to act, impartially and fairly towards the participants at all times, and without bias towards or discrimination against any participant to the mediation.
2.3 Where a conflict of interest has not been previously identified by MMF, the Mediator is under a duty to disclose to all participants as soon as is practically possible, any matter which s/he becomes aware of which might in his/her view give rise to a conflict of interest (whether apparent, potential or actual). Such disclosure should be made in writing to all the participants as soon as the Mediator becomes aware of it. The Mediator may not continue to act unless they have the written agreement to continue from all participants.
2.4 A potential conflict of interest arises where a Mediator has mediated for a participant before. In such a case the Mediator should ask the participant for permission to disclose this fact (but not the contents of the previous mediation) to all other participants. If consent is obtained, they should disclose this fact to the other participants under the terms of paragraph 2.2 above. Where consent to disclosure is refused, the Mediator should refuse to act.
2.5 Mediation must be conducted as an independent professional activity and must be distinguished from any other professional role in which the Mediator may practice.
3.1 A mediation is a confidential process. Subject to paragraph 3.2 below this means that the Mediator will not disclose to any other person:
(i) the fact that a mediation between the participants is taking place or has taken place,
(ii) any information arising out of, during, or in connection with, the mediation in whatever form (orally, email and/or in writing).
3.2 The duty of confidentiality set out in paragraph 3.1 above will not apply where:
(a) All participants consent to disclosure
(b) The Mediator is required by law (whether generally or by a Court) to make the disclosure
(c) The Mediator reasonably considers that there is a serious risk of significant harm to the life and/or safety of any person. Where such information relates to a child or vulnerable adult, the Mediator must ensure that disclosure is made to the relevant Social Services department as soon as is reasonably practicable.
(d) The Mediator should seek advice confidentially from a Director or Trustee of Medical Mediation on any ethical and/or other significant matter arising out of and/or related to the mediation.
Save in a case of suspected Fabricated or Induced Illness (also known as Munchausen’s Syndrome by Proxy) in each case referred to in 3.2 the Mediator will seek to obtain the consent of the participant concerned before disclosing the information and will in each case inform them that they will be disclosing the information and what information will be disclosed.
4. Legal privilege
The mediation will be legally privileged. This means that all discussions during the mediation cannot be referred to in any legal proceedings and the Mediator cannot be required to give evidence or produce any notes or records made in the course of the mediation, unless all participants agree to waive the privilege or the law imposes upon the Mediator an overriding obligation of disclosure.
5. Conduct of the process
5.1 The Mediator will use his/her best endeavors to support participants to reach agreement as to what is in the best interest of the patient and/or to resolve the conflict which has arisen between them.
5.2 Where the Mediator considers that a participant is unable or unwilling to take part in the process freely and fully, they must raise this as an issue and may suspend or terminate the mediation.
5.3 The Mediator will adhere to the principle that participation in a mediation is voluntary at all times and participants are free to withdraw from the mediation process at any time.
5.4 The Mediator must inform participants of their right to seek independent legal and/or other advice at the start of the Mediation Process and whenever this appears desirable during the course of the mediation.
5.5 The Mediator must ensure that participants are aware of the Mediation Procedure and sign the Mediation Agreement. They must also draw participants’ attention to this Code of Conduct.
6. Welfare of the patient
6.1 The Mediator must at all times have regard to the welfare of any patient and in particular whether and to what extent the patient has capacity to engage in the mediation process.
6.2 Where the patient is deemed to have capacity to engage in the mediation process, the Mediator must consider whether and to what extent it is appropriate or possible to consult the patient directly in order to ascertain their wishes and feelings.
6.3 In his/her consideration of whether to consult a patient under s 6.2, the mediator must consult all participants to the Mediation. The Mediator is not obliged to follow the wishes of any participant but must make their own determination of whether it is appropriate to consult the patient .
6.4 Where the Mediator considers that it is appropriate to consult a patient directly, the consent of the patient must first be obtained.
6.5 Mediators who consult directly with children and/or vulnerable adults must be considered competent to do so by MMF and must have received specific enhanced clearance from the Criminal Records Bureau or equivalent body charged from time to time as providing such clearance.
7. Agreement and court approval
7.1 Where agreement between the participants is reached, the Mediator will draw up an Agreement which will form part of the patient’s notes and will no longer be confidential to the mediation.
7.2 It is the Mediator’s responsibility to ensure that each participant to the Mediation receives a copy of this Agreement.
7.3 Where there is an existing Court Order or where circumstances require court approval, the Mediator will ensure that lawyers are aware of any Agreement in order for such Agreement to be put before the Court.
8. Withdrawal of a mediator
8.1 The Mediator must withdraw from the mediation if they are:
(i) asked to do so by all participants
(ii) in breach of this Code
8.2 The Mediator may withdraw from the mediation at their own discretion where:
(i) any participant breaches one or more terms of the Mediation Agreement
(ii) the Mediator considers that any participant is acting in his or her view contrary to the law
(iii) the Mediator decides that continuing with the mediation will serve no useful purpose
9. Training and qualifications of mediators
9.1 The Mediator must have successfully completed Mediation Accreditation that is approved by MMF. In order to be accredited by MMF, a Mediator must also demonstrate competency in Child Protection and in one of the following fields: Medical Ethics, or Medical or Family Law.
9.2 The Mediator may only undertake direct consultation with children or vulnerable adults when they are deemed competent to do so by MMF and have received specific enhanced clearance from the Criminal Records Bureau or equivalent body charged from time to time as providing such clearance.
9.3 All Mediators must undertake 8 hours per annum of relevant Continuous Professional Development in Mediation.
10. Storage of records
10.1 MMF is registered as a Data Controller with the Information Commissioner.
10.2 During the mediation process, MMF will keep securely and confidentially, the Mediation Check List and Mediation Procedure and Agreement.
10.3 At the end of any Mediation Process all documents will be destroyed by the mediators.
The Mediator must have current professional indemnity insurance in an adequate amount with a responsible insurer. Such certificate must be produced to MMF on request.
Fees will be agreed in writing by MMF with the participants before commencement of any mediation process. When circumstances require further involvement by the mediator, fees for this will be agreed before any further work is undertaken by the Mediator.