12.5 Independent Advocacy

1. Introduction

When an adult with care and support needs is referred to the local authority because of a safeguarding concern, they must be actively involved in any safeguarding enquiry or safeguarding adult review (SAR). Under the Care Act, the local authority has a legal duty to provide independent advocacy to support adults through these processes, if they would otherwise have substantial difficulty in being involved (see Section 3.1 Substantial difficulty).

Advocacy should be seamless for adults who qualify, so that they can benefit from the support of one advocate throughout the safeguarding process. Adults who have substantial difficulty in engaging should not be expected to have to tell their story repeatedly to different advocates.

The aim of independent advocacy support is for the adult’s wishes, feelings and needs to be at the heart of the any safeguarding enquiry or SAR.

2. Local Authority Responsibilities to Provide Independent Advocacy

The local authority has a duty to arrange an independent advocate for:

• all adults, as part of their own assessment and care planning and care reviews and to those in their role as carers;
• adults who are subject to a safeguarding enquiry or SAR.

There are two conditions which also need to be met for the provision of an independent advocate. These are that:

1. if an independent advocate were not provided the adult would have substantial difficulty in being fully involved in these processes;
2. there is no appropriate person available to support and represent the adult’s wishes who is not paid or professionally engaged in providing care or treatment to them or their carer.

The role of the independent advocate is to support and represent the adult, and to facilitate their involvement in the key processes and interactions with the local authority and other organisations as required for the safeguarding enquiry or SAR.

Local authorities also provide advocates for children who are approaching the transition to adult care and support, or who are having a young carer’s assessment.

3. Advocacy and the Duty to Involve

Adults must be fully involved in decisions made about them and in any safeguarding enquiry or SAR.

The local authority must help adults to understand how they can be involved, how they can contribute and take part and, where appropriate, lead or direct the process. Adults should be active partners in any enquiries in relation to abuse or neglect. No matter how complex the adult’s needs, local authorities are required to involve them, to help them express their wishes and feelings, to support them to weigh up options, and to make their own decisions.

The advocacy duty applies to safeguarding enquiries or SARs for adults living in all settings, except prisons.

Adults who qualify for advocacy under the Care Act may also qualify for advocacy under the Mental Capacity Act (MCA) 2005. The same advocate can provide support as an advocate under the Care Act and under the MCA. Whichever legislation the advocate is acting under, they should meet the appropriate requirements for an advocate under that legislation.

3.1 Substantial difficulty

Local authorities must form a judgement about whether an adult has substantial difficulty in being involved with these processes. If it is thought that they do, and that there is no appropriate person to support and represent them the local authority must arrange for an independent advocate to support and represent the adult.

Many adults who qualify for advocacy under the Care Act will also qualify for advocacy under the Mental Capacity Act 2005 (MCA). The same advocate can provide support as an advocate under the Care Act and under the MCA. This is to enable the adult to receive seamless advocacy so that they do not have to repeat their story. Whichever legislation the advocate is acting under, they should meet the appropriate requirements for an advocate under that legislation.

3.1.1 Judging ‘substantial difficulty’ in being involved

The Care Act defines four areas in which an adult may experience substantial difficulty:

1. Understanding relevant information: Often adults can be supported to understand relevant information, if it is presented appropriately and if time is taken to explain it. Some however, will not be able to understand relevant information, for example if they have mid-stage or advanced dementia.
2. Retaining information: If the adult is unable to retain information long enough to be able to weigh up options and make decisions, then they are likely to have substantial difficulty in engaging and being involved in the process.
3. Using or weighing the information as part of engaging: The adult must be able to weigh up information, in order to participate fully and choose between options. For example, they need to be able to weigh up the advantages and disadvantages of moving into a care home or leaving an abusive relationship. If they are unable to do this, they will have substantial difficulty in engaging and being involved in the process.
4. Communicating their views, wishes and feelings: The adult must be able to communicate their views, wishes and feelings either by talking, writing, signing or any other means, to aid the decision process and to make their priorities clear. If they are unable to do this, they will have substantial difficulty in engaging and being involved in the process. For example, an adult with mid-stage or advanced dementia, significant learning disabilities, a brain injury or mental ill health may be considered to have substantial difficulty in communicating their views, wishes and feelings. The adult’s ability to communicate their views, wishes and feelings will be key to their involvement rather than the diagnosis or specific condition.

4. Advocacy Support for Safeguarding Enquiries and Safeguarding Adults Reviews (SARs)

If the adult has substantial difficult in engaging with the safeguarding enquiry process or SAR, and there is no one else appropriate who can support them (see Section 5, Identifying an Appropriate Person), the local authority must arrange for an independent advocate to support and represent them. Where an independent advocate has already been arranged under the Care Act or under the MCA 2005 then, unless inappropriate, the same advocate should be used.

Effective safeguarding is about seeking to promote the adult’s rights as well as protecting their physical safety and taking action to prevent the occurrence or reoccurrence of abuse or neglect. It involves enabling the adult to understand any risks of abuse, and the actions that they can take, or ask others to take, to reduce those risks.

If a safeguarding enquiry needs to start urgently it can begin before an advocate is appointed, but one must be appointed as soon as possible.

Advocacy is especially important in supporting adults through difficult and / or sensitive processes (whether as part of a safeguarding enquiry or a SAR). Both can feel very daunting and involve the sharing of sensitive information which may lead to difficult decisions. Adults who have been abused or neglected may be demoralised, frightened, embarrassed or upset, and the support of an independent advocate will be crucial.

5. Identifying an Appropriate Person

Identifying an appropriate person should be considered as soon as the adult’s need for an independent advocate has been identified. An appropriate person is someone who can support the adult to be involved in the decision-making process, such as a family member or friend. For someone to act as an appropriate person, they must not speak on behalf of the adult, but have the skills to maximise their involvement.

Positives to consider when family or friends as an appropriate person include:

• they know the adult best;
• they would most likely want to support the adult;
• they will likely be able to support the adult with any speaking or hearing difficulties, for example if the adult uses Makaton but has their own signs for different things.

However, family and friends:

• may not have the necessary skills to maximise the adult’s involvement in the process;
• may find it difficult to take a holistic approach and may only see what they believe is best for the adult;
• may not be wanted by the adult to act as their appropriate person as it may impact the dynamics between them;
• may find it difficult to support the adult they are in crisis and there is a conflict of interest.

When the local authority is considering whether there is an appropriate person (or persons) who can support the adult’s involvement, there are three specific considerations.

1. they cannot be someone who is already providing the adult with care or treatment in a professional capacity or on a paid basis (regardless of who employs or pays for them).  For example, the adult’s GP, nurse, key worker or care and support worker.
2. If the adult does not wish to be supported by that person and they have the mental capacity to make that decisions, or are competent to consent, their wishes should be respected. If the adult has been assessed as lacking the mental capacity to make such a decision, then the local authority must be satisfied that it is in their best interests to be supported and represented by the person. For example where an adult does not wish to be supported by a relative, perhaps because they wish to be moving towards independence from their family, then the relative cannot be considered an appropriate person .
3. The appropriate person is expected to support and represent the adult and to facilitate their involvement in the processes. Some people will not be able to fulfil this role easily, for instance:
   • a family member who lives at a distance and who only has occasional contact with the adult;
   • a spouse who also finds it difficult to understand the local authority processes;

1. • or a housebound parent.

It is not sufficient to know the adult well or to love them deeply; the role of the appropriate person is to support the adult’s active involvement with the local authority processes.

Anyone who is implicated in any enquiry into abuse or neglect or who has been judged by a SAR to have failed to prevent an abuse or neglect is not suitable to support the adult in any of the processes.

Sometimes the local authority will not know at the point of first contact or at an early stage in the process whether there is someone appropriate to assist the adult in engaging. An advocate may be appointed before it is identified that there is an appropriate person in the adult’s own network. The advocate can at that stage ‘hand over’ to the appropriate person. Alternatively, the local authority may agree with the adult, the appropriate person and the advocate that it would be best for the advocate to continue their role, though this is not a specific requirement under the legislation.

Equally, it is possible that the local authority will consider someone appropriate who may then turn out to have difficulties in supporting the adult to engage and be involved in the process. The local authority must at that point arrange for an advocate.

There may also be some cases where the local authority considers that the adult needs the support of both a family member and an advocate; perhaps because the family member can provide a lot of information but not enough support, or because while there is a close relationship, there may be a conflict of interest with the relative, for example in relation to inheritance of the home.

If the local authority is required to appoint an independent advocate as the adult does not have friends or family who can facilitate their involvement, friends or family members must still be consulted when the adult asks for this.

Where adults in the same household are involved in the safeguarding enquiry or SAR process, they may have the same advocate, if all parties agree and the local authority is satisfied that there is no conflict of interest.

6. The Role of the Independent Advocate

The advocate will decide the best way of supporting and representing the adult  they are advocating for, always taking into account the wellbeing and interests (including their views, beliefs and wishes) of the adult concerned.

Acting as an advocate for an adult who has substantial difficulty in engaging with safeguarding processes is a responsible position.

It includes:

• assisting the adult to understand what is involved in a safeguarding enquiries and SARs. It can involve advocates spending considerable time with the adult, to understand their communications needs, their wishes and feelings and their life story, and using all this to assist the adult o be involved and where possible to make decisions;
• assisting the adult to communicate their views, wishes and feelings to the staff who are carrying safeguarding enquiries or reviews;
• assisting the adult to understand their right to have their concerns about abuse taken seriously and responded to appropriately. Also assisting the adult to understand their wider rights, including their rights to liberty and family life. An adult’s rights are complemented by the local authority’s duties, for example to involve them and to meet needs in a way that is least restrictive of their rights;
• assisting the adult to challenge a decision or process made by the local authority; and where the adult cannot challenge the decision even with assistance, then to challenge it on their behalf.

6.1 Safeguarding issues

In terms of safeguarding there are some particularly important issues for advocates to address. These include assisting the adult to:

• decide what outcomes / changes they want;
• understand the behaviour of others that are abusive / neglectful;
• understand which actions of their own may expose them to  abuse or neglect;
• understand what actions that they can take to safeguard themselves;
• understand what advice and help they can expect from others, including the criminal justice system;
• understand what parts of the process are completely or partially within their control;
• explain what help they want to avoid reoccurrence and also recover from the experience.

6.2 Making representations

There will be times when an advocate will have concerns about the way the local authority has acted or a decision that has been made or outcome that is proposed. The advocate must write a report outlining their concerns for the local authority. The local authority should hold a meeting with the advocate to consider the concerns and provide a written response to the advocate following the meeting.

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

Where an adult has been assisted and supported and nevertheless remains unable to make their own representations or their own decisions, the independent advocate must use what information they have, to make the representations on their behalf

They must ‘advocate’ on their behalf, to put their case, to scrutinise the options, to question the plans if they do not appear to meet all eligible needs or do not meet them in a way that fits with the adult’s wishes and feelings, or are not the least restrictive of option, and to challenge local authority decisions where necessary.

The ultimate goal of this representation is to secure the adult’s rights, promote their wellbeing and ensure that their wishes are taken fully into account.