Under the Care Act, from April 2015 onwards, ‘paid for’ independent advocacy, can be procured through the local authority in the context of assessment and care planning, if there is no-one else appropriate to do it, unpaid.
This duty covers the support of people who have some mental capacity but who have substantial difficulty in being involved in the care and support ‘processes’, so its scope is broader than the Mental Capacity Act IMCA obligations.
Advocacy Regulations underpin the message of the Guidance and must be complied with as law.
Crucial questions
There will be debate about the use of the Mental Capacity Act ‘four building-blocks’ approach to the question of whether someone cannot retain the presumption of capacity, in the context of assessment processes, for professional decision-making about ‘this person has still got some capacity, but’….
There will also be anxiety about whether the new duty, alongside the introduction of a major piece of reforming and consolidating legislation, will make it more likely that people’s natural advocates, their relatives, will take fright and just say ‘No’, to doing it for free.
If they are unwilling – perhaps because they are too busy or they believe themselves to be inappropriately skilled or lack knowledge – how is a council likely to respond?
The Guidance is not clear whether the willingness of the relative is a pre-condition to their appropriateness but says it’s for the council to judge whether a relative who exists is ‘appropriate’ – implying that they will refuse a person an advocate if an appropriate ‘other’ merely exists.
But if that person is unwilling, could a council defensibly say that there’s no duty to fund one for an individual who will, by definition, be facing substantial difficulty, without one?
An answer can be found in the Guidance if one looks hard. It says that this service differs from the IMCA one as it provides support for 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 unable or unwilling to facilitate the person’s involvement in the local authority process.
Decisions about access to advocacy that need to be made at ‘first contact’ are complicated and likely to lead to a lot of aggravation and dissent. The identification of a potential need for advocacy may arise through the process itself, from the person themselves, carers or family. But it is a judicially reviewable decision and where an authority has outsourced or commissioned all or some of this process – for example, by contracting out its Front Door or Courtyard to a private company – the authority will maintain overall responsibility for this judgement.
Scope
The duty covers people in relation to their assessment and not just care planning, regardless of whether a move into residential accommodation, funded by the state, or Deprivation of Liberty is being considered. It is mandatory, in relation to the review of a care and/or support plan whereas under the IMCA scheme it is discretionary.
It covers people in relation to safeguarding processes too, regardless of whether anyone is considering what are called ‘protective measures’ (ie. DoLS process, or an application to the Court of Protection for a welfare order).
It covers people who have substantial difficulty in engaging, even if they are carers and not service users; ie. in relation to any assessment of a vulnerable person’s own needs as a carer.
The Guidance adds these scenarios as triggers, if there is doubt:
“where a proposed care and support plan may involve restricting a person’s liberty to the extent that they may be deprived of their liberty, in any setting, an advocate must be involved. For example;
• where a family member strongly opposes a care and support plan that involves moving a person who lacks capacity into a care or nursing home; (but note, not into supported living!)
•where a person is objecting to leaving their home in the community;
• where a care and support plan is so restrictive that paid staff make all the day-to-day decisions about a person’s life (in any setting);
• where a care and support plan involves serious restraint, such as placing a person in seclusion, or physical restraint which is distressing to the person (there is no real justification for the addition that it needs to be distressing – restriction is legitimate if it is proportionate but if it is distressing it is more likely to be regarded as overstepping that line);
• where a care and support plan involves serious restrictions on freedom to associate with family and friends or partners (ie. prohibitions);
• where a care and support plan makes no provision for the person to be able to ‘go out of’ the place where they live, ie. for leisure or social activities;
• where a care and support plan makes a person entirely dependent for everything on paid staff and there are no family or friends involved.
The content of the advocate’s role
The advocate’s role is complex and varied. It includes 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 unmet needs met by the council and to have a care or support plan that reflects their needs and their preferences as far as is appropriate”.
This is in effect the public law principles underpinning social care. The Guidance insists that the role includes assisting the person to understand their ‘wider rights’, including their rights to liberty and family life (ie. their human rights). The role extends to assisting a person to challenge a decision made by the local authority; and where a person cannot challenge the decision even with assistance, then to challenge it on their behalf where the advocate believes the decision is inconsistent with the local authority’s duty to promote the individual’s wellbeing.
This is to be done by a written report. In effect, this is a letter to the council’s Monitoring Officer to raise matters of illegality or poor administration – which cannot be done effectively without knowing adult social care legal principles.
The local authority is told by the Guidance that it should convene a meeting with the advocate to consider the concerns and to provide a written response to the advocate following the meeting.
Advocates will therefore need training in the legal framework of local authorities’ rights and duties, and that means that councils’ own staff will, sooner or later, also need training.
There is at least one special message for costs brokers and councils in the Guidance that should be imprinted on the hearts and minds of providers and advocates:
“Periodic reviews, and reviews in general, must not be used to arbitrarily reduce a care and support package. Such behaviour would be unlawful under the Act, as the personal budget must always be an amount appropriate to meet the person’s needs. Any reduction to a personal budget should be the result of a change in need or circumstances”.
Who should be providing this advocacy?
The Guidance emphasises that it would be unhelpful to the individual and to the local authority for a new advocate to be appointed if it becomes apparent that an IMCA entitlement is also triggered. It would be better if the advocate appointed in the first instance is qualified to act under the Mental Capacity Act (as IMCAs). Local authorities do not have to commission one organisation to provide both types of advocacy. But there are obvious advantages:
– existing IMCA services can buy in the services of smaller advocacy organisations and 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; and
– it is easier for the local authority to manage and monitor one contract rather than two.
The advocate must not be working for the local authority, or for any organisation that is commissioned to carry out assessments, care and support plans or reviews for the local authority.
Given the subtle differences between –
• self-directed advocacy (albeit funded by the council, for a vulnerable adult struggling with the processes)
• directly paid for advocacy support in relation to maximising the prospects of a good assessment decision by the council
• being a best interests IMCA ‘advocate’ for a person formally lacking capacity
• independent ‘expert’ input into an assessment, paid for by a council for dispute resolution purposes
• delegated social work assessment on behalf of the councils,
chaos could arise if one individual or organisation swapped hats on a client-to-client or day-to-day basis. But the ban on it being done by someone who works for a council or its formal delegate, on assessment and care planning, seems an unnecessary restraint on an expert’s freedom to provide freelance services to more than one sort of organisation. It may not even be sustainable, given how thin this sort of expertise is spread nationwide.
Paid capacity
Nor can an advocate be appointed if they are providing care or treatment to the individual in a professional or a paid capacity. This does not mean that a provider can’t offer advocacy to a council for other providers’ clients.
A provider’s role, on review or initial placement, will still be to be a best interests consultee, even if not an advocate. But to discharge that role helpfully, and supportively for the organisation, a long term prudent business strategy would be to consider running a formal advocacy service, albeit for others’ clients, so that the knowledge is there, in-house, to be put to good use for business purposes.
Belinda Schwehr
Care and Health Law
