Independent advocacy under the Care Act 2014
A person may be entitled to receive a Care Act independent advocate, free of charge from the LA but first, two conditions must be met:
1. Whether that person has substantial difficulty in being involved; and
2. if there is no appropriate individual to support them.
Where there is an appropriate individual available to support, for example, family, partner, close friend etc an independent advocate must be self funded.
Local authorities must involve people in decisions made about them and their care and support. No matter how complex a person’s needs, local authorities are required to help people express their wishes and feelings, support them in weighing up their options, and assist them in making their own decisions.
See helpful factsheets of SCIE below:
When does the advocacy duty apply?
If it appears to the authority that a person has care and support needs, then a judgement must be made as to whether that person has substantial difficulty in being involved and if there is no appropriate individual to support them. An independent advocate must be appointed free of charge to support and represent the person for the purpose of assisting their involvement if these two conditions are met and if the individual is required to take part in one or more of the following processes described in the Care Act:
- a needs assessment
- a carer’s assessment
- the preparation of a care and support or support plan
- a review of a care and support or support plan
- a child’s needs assessment
- a child’s carer’s assessment
- a young carer’s assessment
- a safeguarding enquiry
- a safeguarding adult review
- an appeal against a local authority decision under Part 1 of the Care Act (subject to further consultation).
The advocacy duty will apply from the point of first contact with the local authority and at any subsequent stage of the assessment, planning, care review, safeguarding enquiry or safeguarding adult review.
Judging ‘substantial difficulty’
Local authorities must consider, for each person, whether they are likely to have substantial difficulty in engaging with the care and support process. The Care Act defines four areas where people may experience substantial difficulty. These are:
- understanding relevant information
- retaining information
- using or weighing information
- communicating views, wishes and feelings.
Who is an ‘appropriate individual’ to assist a person’s involvement?
If the person being supported doesn’t want that person to support them, that’s not an appropriate adult. You can’t force an advocate on someone.
Co-production workshop participant
Local authorities must consider whether there is an appropriate individual who can facilitate a person’s involvement in the assessment, planning or review process, and this includes four specific considerations. The appropriate individual cannot be:
- already providing care or treatment to the person in a professional capacity or on a paid basis
- someone the person does not want to support them
- someone who is unlikely to be able to, or available to, adequately support the person’s involvement
- someone implicated in an enquiry into abuse or neglect or who has been judged by a safeguarding adult review to have failed to prevent abuse or neglect.
The role of an ‘appropriate individual’ under the Care Act is potentially fuller and more demanding than that of an individual with whom it is ‘appropriate to consult’ under the Mental Capacity Act (MCA). Under the Care Act the appropriate individual’s role is to facilitate the person’s involvement, not merely to consult them and make decisions on their behalf.
Sometimes the local authority will not know at the point of first contact or at an early stage of the assessment whether there is someone appropriate to assist the person in engaging. As a result, an advocate may be appointed only for it to be discovered later that there is an appropriate person available. The appointed advocate can at that stage ‘hand over’ to the appropriate individual. Alternatively, the local authority may agree with the person, the appropriate individual and the advocate that it would be beneficial for the advocate to continue their role, although this is not a specific requirement under the Care Act. Equally, it is possible that the local authority will consider someone appropriate who may then turn out to have difficulties in supporting the person to be involved in the process. At that point arrangements for an independent advocate must be made.
Information and advice
The Care Act places a duty on local authorities to ensure that all adults in their area have access to information and advice on care and support, and to keep them safe from abuse and neglect. Prior to making contact with the local authority, there may be some people who require independent advocacy to access information and advice. This need should be built into any analysis of demand that you make.
Continuing health care
The advocacy duty in the Care Act applies equally to those people whose needs are being jointly accessed by the NHS and the local authority, or where a package of support is planned, commissioned or funded by both a local authority and a clinical commissioning group (CCG), known as a ‘joint package’ of care. Historically this arrangement has often been difficult for people who use services, their carers and friends to understand and be involved in. Local authorities and clinical commissioning groups will therefore want to consider the benefits of providing access to independent advice or independent advocacy for those who do not have substantial difficulty and/or those who have an appropriate person to support their involvement. Effective joint commissioning arrangements would involve:
- dealing with the person holistically, providing a seamless service and avoiding duplication
- reducing communication breakdown
- the involvement of the person, their family and carers
- effective partnership working between health and social care, addressing needs together
- improved communication and continued care to achieve joint outcomes.
The independence of the service is an important consideration for all commissioners. For services to be meaningful and acceptable to those they are designed to support they must have the confidence of individuals, carers and the public. Anything compromising that independence could easily undermine confidence.
The Care Act regulations for independent advocacy are clear: providers of advocacy must be independent of the local authority, with their own constitution, code of practice and complaints procedure. Advocates under the Care Act will be managed by, and primarily accountable to, the advocacy organisation that recruits and employs them, thereby maintaining their independence from the local authority.
There are times when an independent advocate should be provided for a person who has substantial difficultly even though they have an appropriate individual (family member, carer or friend) to support them. These are:
- where a placement is being considered in NHS-funded provision in either a hospital (for a period exceeding four weeks) or in a care home (for a period of eight weeks or more), and the local authority believes that it would be in the best interests of the individual to arrange an advocate
- where there is a disagreement between the local authority and the appropriate person whose role it would be to facilitate the individual’s involvement, and the local authority and the appropriate person agree that the involvement of an independent advocate would be beneficial to the individual.
advocates for this environment. Local authority areas containing prisons should build this into their plans for meeting the requirements of the Act.
Once appointed, all independent advocates under the Act should work towards the National Qualification in Independent Advocacy (City & Guilds, level 3) within a year of being appointed, and achieve it in a reasonable amount of time thereafter. The qualification is
…In addition to completing the Independent Advocacy qualification, providers should be expected to ensure that all independent advocates have access to further relevant training. This may cover:
- good practice in safeguarding adults
- non-instructed advocacy
- care and support planning (or person-centred planning)
- good practice in challenging decisions or the decision-making process effectively
- supported decision-making (how to effectively support an individual who is experiencing difficulty with decision-making).
“Other statutory advocacy duties (not related to the Care Act 2014 b SCIE”)
Local authorities have a number of other statutory duties to ensure access to advocacy which are described below. You should work closely with colleagues in assessment and care management as well as accessing legal advice to gain a full understanding of these duties and how they interact.
The Mental Capacity Act 2005
Both the Care Act and the Mental Capacity Act recognise the same areas of difficulty, and both require a person with these difficulties to be supported and represented, either by family or friends, or by an advocate in order to communicate their views, wishes and feelings.
The right to an independent mental capacity advocate was introduced by the Mental Capacity Act 2005. The Act gives some people who lack capacity a right to receive support from an independent mental capacity advocate.
Local authorities have commissioned independent mental capacity advocacy services in England. Responsible bodies, the NHS and local authorities all have a duty to make sure that independent mental capacity advocates are available to represent people who lack capacity to make specific decisions, and so any staff affected will need to know when an independent mental capacity advocate needs to be involved.
For further information see: The Mental Capacity Act 2005: Code of practice.
The Mental Health Act 2007
Independent mental health advocacy services were introduced to safeguard the rights of people detained under the Mental Health Act 2007 and those on community treatment orders (CTOs). Independent mental health advocates (IMHAs) aim to enable qualifying users to participate in decisions about their care and treatment.
An independent mental health advocate is a statutory advocate, granted specific roles and responsibilities under the Mental Health Act. Their role is to assist qualifying patients understand the legal provisions to which they are subject under the Mental Health Act 1983 and the rights and safeguards to which they are entitled. They also assist qualifying users to exercise their rights by supporting participation in decision-making.
People are eligible to use independent mental health advocacy services in England if they are:
- detained under the Mental Health Act 1983 (excluding people detained under certain short-term sections)
- conditionally discharged restricted patients
- subject to guardianship
- subject to CTOs.
People who are being considered for treatment requiring consent and/or a second opinion may also qualify for independent mental health advocate assistance.
The Health and Social Care Act 2012
The NHS Complaints Advocacy Service was set up in April 2013, replacing the Independent Complaints Advocacy Service (ICAS), which provided support to people wishing to make a complaint about the NHS. This service was centrally commissioned by the Department of Health on a regional basis, but the new service is now commissioned by local authorities individually or in cooperation with others.
The service aims to provide support to people who want to make a complaint about the NHS, and need some support to do this. Support may range from receiving a self-help pack, information and options, to support from an advocate, depending on needs.
Interaction between statutory advocacy duties
Independent advocacy under the duty imposed by the Care Act 2014 is similar in many respects to independent advocacy under the Mental Capacity Act. Regulations have been designed to enable independent advocates to carry out both roles. However, the duty to provide independent advocacy under the Care Act is broader and applies in a wider set of circumstances, providing support to:
- people who have capacity but have substantial difficulty in being involved in the care and support process
- people in relation to their assessment and/or care and support planning regardless of whether a change of accommodation is being considered for the person
- people in relation to the review of a care and/or support plan
- people in relation to safeguarding processes (though independent mental capacity advocates may be involved if the authority has exercised its discretionary power under the Mental Capacity Act)
- carers who have substantial difficulty in engaging, whether or not they have capacity
- people who have someone who is appropriate to consult for the purpose of best interests decisions under the Mental Capacity Act, but where that person is not able or willing to assist with advocacy in any other capacity.
There are likely to be people who qualify for advocacy under the Care Act but not for an independent mental capacity advocate. However, most people who qualify for independent advocacy under the Mental Capacity Act will also qualify for independent advocacy under the Care Act. To enable a person to receive seamless advocacy and not to have to repeat their story to different advocates, the same person can provide support in both roles, provided they are trained and qualified to do so.
If someone has previously had access to an IMHA and is being jointly assessed by the NHS and local authority (often under what is called a Care Programme Approach), they should be considered for an advocate under the Care Act, if they have substantial difficulty in being involved and if there is no appropriate person to support their involvement.
Local authorities do not have to commission one organisation to provide the different types of advocacy but, over time, there may be advantages to this.
The Care Act extends the range of situations and people to whom there is a duty to make advocacy available. Nothing in the Act prevents advocacy being provided in other circumstances.
IMCA resource – what do IMCAs do?
IMCAs are a safeguard for people who lack capacity to make some important decisions. See Who should get an IMCA ? to find out which decisions require IMCAs to make some important decisions. The IMCA role is to support and represent the person in the decision-making process. Essentially they make sure that the Mental Capacity Act 2005 is being followed.
The Mental Capacity Act 2005 (Independent Mental Capacity Advocates) (General) Regulations 2006 set out the IMCA’s role and functions. These are grouped below into four areas.
- Gathering information
- Evaluating information
- Making representations
- Meet and interview the person (in private if possible).
- Examine relevant health and social care records.
- Get the views of professionals and paid workers.
- Get the views of anybody else who can give information about the wishes and feelings, beliefs or values of the person.
- Find out other information which may be relevant to the decision.
- Check that the person has been supported to be involved in the decision.
- Try to work out what the person’s wishes and feelings would be if they had capacity to make the decision and what values and beliefs would influence this.
- Make sure that different options have been considered.
- Decide whether to ask for a second medical opinion where it is a serious medical treatment decision.
IMCAs should raise any issues and concerns with the decision maker. This could be done verbally or in writing. IMCAs are required to produce a report for the person who instructed them. In most cases this should be provided to the decision maker before the decision is made.
People who instruct IMCAs must pay attention to any issues raised by the IMCA in making their decision.
- Challenging decisions
In many cases IMCAs will be able to resolve any concerns they have with the decision maker before the decision is made. Where this has not been possible IMCAs may formally challenge the decision-making process. They can use local complaint procedures or try to get the matter looked at by the Court of Protection.
MCA resource – who should get an IMCA?
An independent mental capacity advocate (IMCA) must be instructed (1) for people in the following circumstances
- The person is aged 16 or over (2)
- A decision needs to be made about either a long-term change in accommodation (3) or serious medical treatment (4),
- The person lacks capacity (5) to make that decision, and
- There is no one independent of services, such as a family member or friend, who is “appropriate to consult” (6).
An IMCA may (7) also be provided to people for other decisions concerning
In adult protection cases an IMCA may be instructed even where family members or others are available to be consulted.
Deprivation of Liberty Safeguards
IMCAs must also be made available to people who are subject to a standard authorisation in the following circumstances:
- To fill gaps between appointments of person’s representatives
- If a person has an unpaid representative, when requested by the person, their representative, or if the Supervisory Body believes either could benefit from the support of an IMCA.
Note 1: IMCAs can only work with an individual once they have been instructed by an appropriate person/ body. For accommodation decisions and care reviews this is likely to be the local authority responsible for the arrangements. For serious medical treatment decisions this will be a medical practioner who has responsibility for the person’s treatment. For adult protection cases this will be the local authority coordinating the adult protection proceedings. For the IMCA roles in DOLS this will be the Supervisory Body.
Note 2: Most parts of the Mental Capacity Act apply to people aged 16 and over. This includes the provisions relating to IMCAs. Some parts of the MCA only apply to people over the age of 18. Examples include the ability to make a Lasting Power of Attorney and to be deprived of their liberty under the MCA.
Note 3: This includes accommodation arranged by a local authority or NHS which is likely to be for longer than eight weeks and placement in hospital for a period that is likely to exceed 28 days.
Note 4: Serious medical treatment is defined in the MCA as treatment which involves giving new treatment, stopping treatment that has already started or withholding treatment that could be offered in circumstances where:
- if a single treatment is proposed there is a fine balance between the likely benefits and the burdens to the patient and the risks involved
- a decision between a choice of treatments is finely balanced, or
- what is proposed is likely to have serious consequences for the patient.
Note 5: The person’s capacity to make the specific decision must be assessed. This is the two stage test set out in the MCA.
- They have an impairment or disturbance (for example, a disability, condition or trauma) that affects the way their mind or brain works, and
- The impairment or disturbance means that they are unable to make a specific decision at the time it needs to be made.
Note 6: IMCAs are primarily intended to be a safeguard for people who do not have family or friends who can represent them. The MCA identifies this as having no -one other than paid staff with whom “it would be appropriate to consult”. The Code of Practice 10.74 – 10.78 provides more information about how this decision can be made. For example, if someone has limited family contact or if family live some distance away an IMCA can be instructed.
Note 7: Local authorities and NHS bodies need to consider in each case whether they will instruct an IMCA for these decisisons. This is set out in the Mental Capacity Act 2005 (Independent Mental Capacity Advocates) (Expansion of Role) Regulations 2006.
Note 8: Local authorities and NHS bodies can instruct an IMCA to support and represent a person who lacks capacity when:
- they have arranged accommodation for that person
- they aim to review the arrangements (as part of a care plan or otherwise), and
- there are no family or friends who it would be appropriate to consult.
Note 9: When local authorities are using adult protection procedures they can instruct an IMCA for either
- the person who is alleged to have been abused or neglected
- a person who is alleged to have abused another person.
The local authority must be thinking about, or already taken protective measures for the person. In adult protection cases access to IMCAs is not restricted to people who have no-one independent of services who can represent them. People who lack capacity who have family and friends can still have an IMCA to support them in the adult protection procedures.
Note 10: The Deprivation of Liberty Safeguards are an amendment to the Mental Capacity Act. They were implemented in April 2009. For more information see the Department of Health’ DOLS web pages.