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5.2.1 Independent Advocacy

RELATED GUIDANCE

Adult Social Care Act Advocacy Pathway Flowchart

AMENDMENT

This chapter was updated in October 2015 in regard to A & E and Hospital discharges.


Contents

  1. Introduction
  2. When does the Duty to Provide Independent Advocacy Apply?
  3. How does the Duty to Provide Independent Advocacy Apply?
  4. Who can be Considered an ‘Appropriate Individual’ to Assist a Person’s Involvement?
  5. Information and Advice
  6. Continuing Health Care
  7. The Exceptions – Provision of an Advocate even where there is Family or Others who can Facilitate the Person’s Involvement
  8. Prisoners
  9. Existing Duties to Independent Advocacy under Mental Capacity Act and Mental Health Act
  10. Accessing Independent Advocacy Services
  11. Making Referrals to Advocacy Partnership
  12. Role of an Independent Advocate
  13. An Advocate
  14. Representing & Raising Concerns
  15. Training & Experience
  16. Local Authority Role in Supporting an Advocate
  17. Continuity of Care & Ordinary Residence
  18. Availability of Advocacy


1. Introduction

The Care Act 2014 places a new duty on local authorities to provide access to independent advocacy to those who would have substantial difficulty in being involved in care and support ‘processes’ and have no appropriate individual(s) – carer, family or friend – who can support their involvement.

Under the Care Act, independent advocacy means a service that is independent of the local authority. 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.


2. When does the Duty to Provide Independent Advocacy Apply?

The advocacy duty applies from the point of first contact with the local authority and at any subsequent stage in care and support processes. It applies to adults and also to children who are in transition to adult care & support from children’s services.

Processes including:

  • An adult’s needs assessment;
  • A carer’s assessment;
  • The preparation of an adult’s care and support plan;
  • A review of an adult’s care and support plan;
  • A child’s needs assessment as they transition towards adult care;
  • A child’s carer’s assessment;
  • A young carer’s assessment;
  • A safeguarding enquiry or safeguarding adults review – LA must help protect people from abuse and neglect/minimise restrictions and risks;
  • An Appeal against a local authority decision under Part 1 of the Care Act (this is subject to further consultation).

A & E & Hospital Discharges

The duty to consider the need for advocacy applies in all settings in which a care and support assessment, plans or reviews are taking place. This therefore applies if a care and support or joint assessment is taking place as part of local A&E arrangements or in hospital prior to discharge. As such commissioned services for independent advocacy under the Care Act should look to cover these local arrangements.

There will no doubt be occasions where it is not possible to involve an advocate from the outset of an assessment. One would expect these circumstances to arise around A&E arrangements rather than in planned hospital discharge when needs may be identified earlier in the process.  The need for an advocate should not delay the assessment starting or taking place where care and support arrangements are required urgently. In these circumstances, where the need for an independent advocate has been identified then they should be involved to support the person at the earliest opportunity. In practice this might be in an assessment that may happen over a period of time (days) or a scheduled review of the needs for example when they are at home having left the hospital.   


3. How does the Duty to Provide Independent Advocacy Apply?

From the first point of contact with a person, the local authority must act to involve that person in the above listed social care processes. Whether raised by the person themselves or otherwise, the local authority must consider whether a person would have ‘substantial difficulty’ in any one of the following areas:

  • Understanding relevant information - Many people can be supported to understand relevant information if it is presented appropriately and if time is taken to explain it;
  • Retaining that information - if a person cannot retain information long enough to be able to weigh up options and make decisions then they are likely to have substantial difficulty;
  • Using or weighing that information as part of the process of being involved – a person must be able to weigh up information in order to fully participate and express preferences for or choose between options;
  • Communicating the individual’s views, wishes or feelings (whether by talking, writing, using sign language or any other means) to aid the decision process and to make priorities clear.

For some people it will be possible to help and support their direct involvement through making reasonable adjustments, as required by the Equality Act, providing information in accessible formats or facilitating the use of video in a needs assessment, for example.

When it is considered that a person would have substantial difficulty in being involved in the ‘process’, the local authority needs to consider whether there is a carer, relative or friend (an ‘appropriate individual’) who can support their involvement. If not the local authority must arrange an independent advocate to be available to support and represent them. Where the Local Authority has outsourced care and support processes it will maintain overall responsibility for this judgement.

Wherever possible, Advocacy should be seamless for people so where an independent advocate has already been arranged under S67 Care Act or under MCA 2005 then, unless inappropriate, the same advocate should be used.


4. Who can be Considered an ‘Appropriate Individual’ to Assist a Person’s Involvement?

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 be consulted about it.

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.


5. 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.


6. Continuing Health Care

The advocacy duty in the Care Act applies equally to those people whose needs are being jointly assessed 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 may 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.


7. The Exceptions – Provision of an Advocate even where there is Family or Others who can Facilitate the Person’s Involvement

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.

Where an independent advocate is provided the local authority must still consult with those friends or family members when the person asks them to.


8. Prisoners

Local authorities will also be responsible for assessing and meeting the social care needs of adult prisoners (not just on discharge from prison but also while in custody). All prisoners will be treated as if they are resident in that area for the purposes of the Care Act and for as long as they reside in that prison. Prisoners will be entitled to the support of an independent advocate in the same circumstances as people in the community.


9. Existing Duties to Independent Advocacy under Mental Capacity Act and Mental Health Act

There are already circumstances in law under which a person has a right to access support from an independent advocate. Under the Mental Capacity Act, there are circumstances where an Independent Mental Capacity Advocate (IMCA) may be instructed to work with people who lack the capacity to make a specific decision. There are also circumstances under the Mental Health Act where a person may have access to an Independent Mental Health Advocate (IMHA). These rights are not affected as a result of the new duty under the Care Act.

However, there will be circumstances under which a person is part of a social care ‘process’ but who may not have access to an independent advocate under the Mental Capacity Act or the Mental Health Act. The duty under the Care Act increases the availability of independent advocacy to them.

Although there is a lot of cross-over between advocacy in the Mental Capacity Act (IMCA) and the Care Act, there are fundamental differences - see diagram below.

advocacy


10. Accessing Independent Advocacy Services

Who Provides Independent Advocacy Services in Brighton & Hove?

The Brighton and Hove Advocacy Partnership are a group of specialist providers who deliver independent advocacy in Brighton & Hove. The Partnership consists of:

  • Mind in Brighton and Hove – Specialist Advocacy services for adults with mental health problems including those affecting older people
    E-mail: info@mindcharity.co.uk
    Tel: 01273 666950;
  • Speak Out – Specialist Advocacy for adults with learning disabilities who will have substantial difficulty in engaging with care and support processes under the Care Act.
    E-mail: info@speakout.or.uk
    Tel: 01273 421921;
  • Impetus – Specialist Advocacy to adults with learning disabilities involved in the criminal and civil courts, including parents with learning disabilities involved in child protection proceedings
    E-mail: interact@bh-impetus.org
    Tel: 01273 229008;
  • Age UK – Specialist Advocacy services for vulnerable older people including those with sensory impairment
    E-mail: advocacyV2@ageuk-bh.org.uk
    Tel: 01273 720603;
  • The Fed Centre for Independent Living – Specialist Advocacy for adults with a physical and/or sensory impairment
    E-mail: advocacy@thefedonline.org.uk
    Tel: 01273 894045.


11. Making Referrals to Advocacy Partnership

It is important to establish that the person is willing to accept support from an advocate before a referral is made.

Individuals requiring Independent advocacy under the Care Act cannot self-refer. All referrals should be made through Adult Social Care or Sussex Partnership Trust using the Brighton & Hove Independent Care Act Advocacy Referral form.

The Advocacy Partnership can be contacted to discuss referrals before the actual referral is made.

Referrals should:

  • Specify clearly why the person has difficulty in engaging with care & support processes;
  • Specify the type of support required and level of urgency, for example, an urgent Section 42 safeguarding enquiry or a planned scheduled review. This is to facilitate the partnership in prioritising referrals;
  • Allow time for the advocate to meet with the person prior to planned assessments or reviews.

Referrals for advocacy under the new Care Act duties should be made to the appropriate advocacy partner - contact details of partners appear above in “Who provides Advocacy in Brighton & Hove”.

See also Adult Social Care Advocacy Pathway Flowchart.


12. Role of an Independent Advocate

An independent advocate’s role is to support and represent the person, always with regard to their wellbeing and interests, including helping a person to:

  • Understand the process;
  • Communicate their wishes, views and feelings;
  • Make decisions;
  • Challenge those made by the local authority if the person wishes;
  • Understand their rights;
  • When appropriate, support and represent them in the safeguarding process.


13. An Advocate

  • Should ask consent to look at the person’s records and to talk to their carer, family, friends, care or support workers and others who can provide information;
  • Must not work for the local authority or an organisation commissioned to carry out assessments, care & support plans or reviews for local authority;
  • Cannot provide care or treatment to the individual in a professional or a paid capacity;
  • Cannot authorise the care & support plan or approve plans or reviews on behalf of the authority.


14. Representing & Raising Concerns

The advocate must write a report outlining any concerns for the local authority. The Local Authority should convene a meeting with the advocate to consider the concerns and provide a written response to the advocate following the meeting.

Where the individual does not have capacity or is not otherwise able to challenge a decision, the advocate must challenge the decision where they believe the decision is inconsistent with the local authority’s duty to promote the individual’s well being.


15. Training & Experience

The Care Act Regulations set out the experience and training that an independent advocate should have. All independent advocates 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.

In addition to completing the Independent Advocacy qualification, providers should be expected to ensure that all independent advocates have access to further relevant training. Advocates are required to understand the local authority’s policies, other agencies roles, processes & assessment tools and good practice in safeguarding enquiries and SARs.


16. Local Authority Role in Supporting an Advocate

The Local Authority:

  • Is expected to recognise that an advocate’s duty is to support and represent a person who has substantial difficulty in engaging with care & support processes;
  • Should understand that the Advocate’s role incorporates “challenge” on behalf of the individual;
  • Should take reasonable steps to assist an advocate in carrying out their role e.g. facilitate access to records and inform other agencies of advocate’s involvement;
  • Must take into account any representations made by an advocate and must provide a written response to a report from an advocate;
  • Should consider including identification of those people likely to benefit from advocacy, for example, using the new Advocacy Classification option in CareFirst;
  • Should record details of any advocacy arrangement in CareFirst as a ‘Professional Relationship’ or by capturing this information in the narrative of a casenote in eCPA for Sussex Partnership Trust;
  • Should keep the Advocate informed of any developments and the outcome of assessments or care and support plans;
  • Must still consult with family members when the person asks them to;
  • Must meet duties in relation to working with IMCA under Mental Capacity Act as well as an advocate under Care Act when the advocate is acting in both roles.


17. Continuity of Care & Ordinary Residence

The local authority carrying out the assessment, planning or review of the plan is responsible for consider whether an advocate is required. For a person whose care and support is being provided out of area (in type of accommodation set out in guidance on ordinary residence (chapter 19) it will be the authority in which the person is ordinarily resident. Guidance on accessing advocacy services out of area to follow.


18. Availability of Advocacy

The Local Authority should be aware of and build on the current availability of independent advocacy services in the local area. They must ensure there is sufficient provision as it will be unlawful not to provide someone who qualifies with an advocate.

For more detailed guidance see Care and Support Statutory Guidance.

References: Care & Support Statutory Guidance; Department of Health Briefing note in support of the Winterbourne View Joint Improvement Programme (January 2015 V.1); VoiceAbility website. Response from the DH Policy Lead regarding A&E and 72 hour discharges from hospitals.

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