11.5 Independent Advocacy

1. Introduction

Everyone should have access to information and advice on care and support and keeping safe from abuse or neglect (see Information and Advice).

Local authorities have a responsibility to arrange an IMCA for people who lack mental capacity (see Independent Mental Capacity Advocates and Independent Mental Health Advocates).

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;
• children who are approaching the transition to adult care and support, when a child’s needs assessment is carried out, and when a young carer’s assessment is undertaken;
• for adults who are subject to a safeguarding enquiry or Safeguarding Adults Review (SAR).

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

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

The aim of the duty to provide advocacy is to enable people who have substantial difficulty in being involved in these processes to be involved as fully as possible, and where necessary to be represented by an advocate who speaks on their behalf. The Equality Act 2010, requires that reasonable adjustments should be made to ensure that disabled people have equal access to information and advice services. Provision of such adjustments, information in different formats for example, may reduce or remove a substantial difficulty a person may have in being involved.

The role of the independent advocate is to support and represent the person 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.

2. Advocacy and the Duty to Involve

People must be involved fully in decisions made about them and their care and support or where there is to be a safeguarding enquiry or SAR.

Therefore the local authority must help people to understand how they can be involved, how they can contribute and take part and sometimes lead or direct the process. People should be active partners in the key care and support processes of assessment, care and support and support planning, review and any enquiries in relation to abuse or neglect. No matter how complex a person’s needs, local authorities are required to involve people, to help them express their wishes and feelings, to support them to weigh up options, and to make their own decisions.

This applies in all settings, including people living in the community, in care homes or, apart from safeguarding enquiries and SARs, in prisons.

2.1 Substantial difficulty

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

Many people 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 person 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.

2.1.1 Judging ‘substantial difficulty’ in being involved

The local authority must consider, for each person, whether they would have substantial difficulty in engaging with the local authority care and support processes. The Care Act defines four areas in any one of which a substantial difficulty might be found, which are set out below.

1. 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. Some people, however, will not be able to understand relevant information, for example if they have mid-stage or advanced dementia.
2. Retaining information: If a person 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: A person 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 terminating an undermining 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: A person must be able to communicate their views, wishes and feelings whether by talking, writing, signing or any other means, to aid the decision process and to make priorities clear. If they are unable to do this, they will have substantial difficulty in engaging and being involved in the process. For example, a person 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. But equally a person with Asperger’s may be considered, as may a frail older person who does not have any diagnosis but is confused as a result of an infection, or a person who is near the end of their life and appears disengaged from involvement and decision making.

Within this context, it is the person’s ability to communicate their views, wishes and feelings which is fundamental to their involvement rather than the diagnosis or specific condition.

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 independent advocate or independent mental capacity advocate in order to communicate their views, wishes and feelings. (See also Independent Advocacy Case Studies).

3. When the Duty to Provide Independent Advocacy for Safeguarding Applies

The local authority must arrange, for an independent advocate to support and represent an adult who is the subject of a safeguarding enquiry or a safeguarding adult review. 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 an adult’s rights as well as about protecting their physical safety and taking action to prevent the occurrence or reoccurrence of abuse or neglect. It enables the adult to understand both the risk of abuse and actions that she or he can take, or ask others to take, to mitigate that risk.

There is increasing case law on adult safeguarding from the Court of Protection which advocates and practitioners should be aware.

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. All agencies need to know how the services of an advocate can be accessed and what their role is.

It is critical in this particularly sensitive area (whether an enquiry or a SAR) that the adult is supported in what may feel a daunting process which may lead to some very difficult decisions. An individual who is thought to have been abused or neglected may be so demoralised, frightened, embarrassed or upset that independent advocacy to help them to be involved will be crucial. (See also Independent Advocacy Case Studies.)

4. Judgements made by the Local Authority

4.1 An appropriate individual to facilitate the person’s involvement

See also Independent Advocacy Case Studies.

Local authorities must consider whether there is an appropriate individual (or individuals) who can facilitate a person’s involvement in the assessment, planning or review processes, and this includes three specific considerations.

1. The appropriate individual cannot be someone who is already providing the person with care or treatment in a professional capacity or on a paid basis (regardless of who employs or pays for them). That means it cannot be, for example, the person’s GP, nurse, key worker or care and support worker
2. If the person does not wish to be supported by that individual and if the person has capacity, or is competent to consent, their wish should be respected. If the person has been judged to lack the capacity to make a decision, then the local authority must be satisfied that it is in a person’s best interests to be supported and represented by the individual. Where a person does not wish to be supported by a relative, for example, perhaps because they wish to be moving towards independence from their family, then the relative cannot be considered an appropriate person.
3. The appropriate individual is expected to support and represent the person 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 person;
   • a spouse who also finds it difficult to understand the local authority processes;
   • a friend who expresses strong opinions of her own prior to finding out those of the individual concerned;
   • or a housebound parent.

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

It will not be suitable for a person to be regarded as an appropriate individual where they are implicated in any enquiry of abuse or neglect or have been judged by a SAR to have failed to prevent an abuse or neglect.

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. They may need to appoint an advocate, and find later that there is an appropriate person in the person’s own network. The advocate can at that stage ‘hand over’ to the appropriate person. Alternatively, the local authority may agree with the individual, 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 person 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 a person 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 decides that they are required to appoint an independent advocate as the person does not have friends or family who can facilitate their involvement, the local authority must still consult with those friends or family members when the person asks them to.

It is the local authority’s decision as to whether a family member or friend can act as an appropriate person to support the individual’s involvement, and to communicate this decision to the individual’s friends and family where this may have been in question. The overall aim is for people who need advocacy to be identified and, to receive consistent support as early as possible and throughout the assessment, the care and support planning and the review processes.

The local authority may be carrying out assessments of two people in the same household. If both people agree to have the same advocate, and if the local authority consider there is no conflict of interest between the individuals, or either of the individuals and the advocate, then the same advocate may support and represent the two people.

For example, if both people wish to be supported to live together in their own home, then it may make sense for one advocate to support both. But if one person wishes for the other to be moved away, there may be a conflict of interest and two advocates will be needed. If any of the people involved – the people being assessed or taking part in care and support or support planning or the advocate – consider that it would be better to have different advocates, then separate advocates should be provided.

4.2 Who can act as an advocate?

Advocates must have:

• a suitable level of appropriate experience: this may, for example, be in non-instructed advocacy or in working with those groups of people who may have substantial difficulty in engaging with assessments and care and support planning;
• appropriate training: this may, for example, initially be training in advocacy (non-instructed and instructed) or dementia, or working with people with learning disabilities. Once appointed, all independent advocates should be expected to work towards the National Qualification in Independent Advocacy (level 3) within a year of being appointed, and to achieve it in a reasonable amount of time;
• competency in the task: this will require the advocacy organisation assuring itself that the advocates who work for it are all competent and have regular training and assessment
• integrity and good character: this might be assessed through: interview and selection processes; seeking and scrutinising references prior to employment and ongoing DBS checks (see Disclosure and Barring);
• the ability to work independently of the local authority or body carrying out assessments, planning or reviews on the local authority’s behalf: this includes the ability to make a judgement about what a person is communicating and what is in a person’s best interests, as opposed to in a local authority’s best interests, and to act accordingly to represent this;
• arrangements for regular supervision: this will require that the person meets regularly and sufficiently frequently with a person with a good understanding of independent advocacy who is able to guide their practice and develop their competence.

The Advocacy Quality Performance Mark (QPM) was published in 2014 by the National Development Team for Inclusion (NDTi). The QPM is a tool for providers of independent advocacy to show their commitment and ability to provide high quality advocacy services – essential for people to have their voices heard, to exercise choice and control and to live independently.

To prevent potential conflict of interest, the independent advocate must not be working for the local authority, or for an organisation that is commissioned to carry out assessments, care and support plans or reviews for the local authority unless the potential conflict of interests is adequately addressed within the organisation’s structure.

In certain circumstances, in addition to their role under the Care Act, an advocate may assist an individual to develop their own care or support plan if requested to by the individual, but they cannot authorise the support plan or approve care and support plans or reviews on behalf of the authority. Nor can an advocate be appointed if they are providing care or treatment to the individual in a professional or a paid capacity.

5. The Role of the Independent Advocate

It is intended that advocates will decide the best way of supporting and representing the person they are advocating for, always with regard to the wellbeing and interest (including their views, beliefs and wishes) of the person concerned. This may involve creative approaches, for example, supporting someone to show film to help explain their needs, wishes or preferences (see also Independent Advocacy Case Studies).

In addition, where practicable, they are expected to meet the person in private. Where a person has capacity, the advocate should ask and obtain their written consent to look at their records and to talk to their carer, family, friends, care or support worker and others who can provide information about their needs and wishes, their beliefs and values.

Where a person does not have capacity to decide whether an advocate should look at their relevant records or talk to their family and friends, then the advocate should consult the records and the family and others as appropriate, but consulting the family and others only where the advocate considers this is in the person’s best interests.

The Care Act allows advocates to examine and take copies of relevant records in certain circumstances. This mirrors the powers of an Independent Mental Capacity Advocate.

Acting as an advocate for a person who has substantial difficulty in engaging with care and support or safeguarding processes is a responsible position. It includes:

• assisting a person to understand the assessment, care and support planning and review and safeguarding processes. This requires advocates to understand local authority policies, and other agencies roles, and processes, the available assessment tools, the planning options, and the options available at the review of a care or support plan are required and good practice in safeguarding enquiries and SARs. It may involve advocates spending considerable time with the individual, considering their communications needs, their wishes and feelings and their life story, and using all this to assist the person to be involved and where possible to make decisions;
• assisting a person to communicate their views, wishes and feelings to the staff who are carrying out an assessment or developing a care or support plan or reviewing an existing plan or to communicate their views, wishes and feelings to the staff who are carrying out safeguarding enquiries or reviews;
• assisting a person to understand how their needs can be met by the local authority or otherwise – understanding for example how a care and support and support plan can be personalised, how it can be tailored to meet specific needs, how it can be creative, inclusive, and how it can be used to promote a person’s rights to liberty and to family life;
• assisting the person to make decisions about their care and support arrangements – assisting them to weigh up various care and support options and to choose the ones that best meet the person’s needs and wishes;
• assisting the person to understand their rights under the Care Act – for an assessment which considers their wishes and feelings and which considers the views of other people; their right to have their eligible needs met, and to have a care or support plan that reflects their needs and their preferences, and in relation to safeguarding, understanding their right to have their concerns about abuse taken seriously and responded to appropriately. Also assisting the person to understand their wider rights, including their rights to liberty and family life. A person’s rights are complemented by the local authority’s duties, for example to involve the person, to meet needs in a way that is least restrictive of a person’s rights;
• assisting a person to challenge a decision or process made by the local authority; and where a person cannot challenge the decision even with assistance, then to challenge it on their behalf.

5.1 Safeguarding issues

See also Making Safeguarding Personal

In terms of safeguarding there are some particular important issues for advocates to address. These include assisting a person 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 avoidable 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.

5.2 Making representations

There will be times when an advocate will have concerns about the way the local authority has acted or what decision has been made or what outcome is proposed. The advocate must write a report outlining their 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 any decision where they believe the decision is inconsistent with the local authority’s duty to promote the individual’s wellbeing.

Where a person 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 behalf of the person.

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 person’s wishes and feelings, or are not the least restrictive of the person’s life, and to challenge local authority decisions where necessary.

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

6. The Role of the Local Authority in Supporting the Advocate

An advocate’s duty is to support and represent a person who has substantial difficulty in engaging with the local authority processes, therefore the local authority must take into account any representations made by an advocate. A written response should be provided to a report from an advocate which raises concerns about how the local authority has acted or what decision has been made or what outcome is proposed. The local authority should understand that the advocate’s role incorporates ‘challenge’ on behalf of the individual.

The local authority is responsible for ensuring that the relevant people who work for the authority are aware of the advocacy service and the authority’s duty to provide such services (see Information and Advice). The local authority should consider including the identification and referral of those people likely to benefit from independent advocacy (during assessment, care and support planning, review and safeguarding) through the care and support services they may commission for instance domiciliary and residential care and support workers and agencies.

The local authority should take reasonable steps to assist the advocate in carrying out their role by informing other agencies that an advocate is supporting a person, and facilitating access to the person and to their records. The completion of an assessment and  care and support planning should allow time for the advocate to take into consideration the needs of the person family, friends or paid staff. They should keep the advocate informed of any developments and of the outcome of the assessment and the care and support plan.

The local authority may make reasonable requests of the advocate for information or for meetings both in relation to particular individuals and in relation to the advocate’s work more generally, and the independent advocate should comply with these.

7. Availability of Advocacy Services to People in the Area

Independent advocacy under the duty flowing from the Care Act is similar in many ways to independent advocacy under the Mental Capacity Act (MCA). Regulations have been designed to enable independent advocates to be able to carry out both roles. For both:

• the independent advocate’s role is to support and represent people;
• the independent advocate’s role is primarily to work with people who do not have anyone appropriate to support and represent them;
• the independent advocates require a similar skill set;
• regulations about the appointment and training of advocates are similar;
• local authorities are under a duty to consider representations made by both independent advocates;
• independent advocates will need to be well known and accessible;
• independent advocates may challenge local authority decisions;
• people who qualify for an Independent Mental Capacity Advocate (an IMCA) in relation to the care planning and care review – as that planning may result in an eligible change of accommodation decision – will (in nearly all cases) also qualify for independent advocacy under the Care Act. The provisions of the Care Act are however wider and apply to care planning irrespective of whether it may result in a change of accommodation decision. People for whom there is a power to instruct an IMCA in relation to care review will (in nearly all cases) also qualify for independent advocacy under the Care Act. The Care Act however creates a duty rather than a power in relation to advocacy and care reviews.

However, the duty to provide independent advocacy under the Care Act is broader and provides support to:

• people who have capacity but who have substantial difficulty in being involved in the care and support ‘processes’;
• 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 IMCAs may be involved if the authority has exercised its discretionary power under the MCA and appointed an IMCA if protective measures are being proposed for a person who lacks capacity, at the time to make the relevant decisions or understand their consequences);
• carers who have substantial difficulty in engaging – whether or not they have capacity;
• people for whom there is someone who is appropriate to consult for the purpose of best interests decisions under the Mental Capacity Act, but who is not able and / or willing to facilitate the person’s involvement in the local authority process;
• adults who are subject to a safeguarding enquiry or SAR .

A person will be entitled to an advocate under the Care Act and then, as the process continues it will be identified that there is a duty to provide an advocate (IMCA) under the Mental Capacity Act. This will occur for example when during the process of assessment or care and support planning it is identified that a decision needs to be taken about the person’s long term accommodation.

It would be unhelpful to the individual and to the local authority for a new advocate to be appointed at that stage.

It would be better that the advocate who is appointed in the first instance is qualified to act under the Mental Capacity Act (as IMCAs) and the Care Act and that the commissioning arrangements enable this to occur.

Local authorities do not have to commission one organisation to provide all types of statutory and non-statutory advocacy. But there may be advantages of working with one organisation or working through one liaison point for a consortium of advocacy providers:

• it is better for the person receiving the support;
• it is easier for those carrying out assessment and care planning to work with one advocate per individual rather than two;
• it is easier for the local authority to manage and monitor one contract rather than two.