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
More stories about: Advocacy
Mark Neary posted a blog today titled Knife edge Decisions which prompted this. He talks about his and other families’ experience. He reflects on the position of the families of many of the 3500 still incarcerated facing a treck on Christmas to spend time with their relative in a completely inappropriate setting comparing it with what’s happening to Stephen thankfully released but only thanks to the Court of Protection. He also compares the treatment of people with learning disabilities if they go off the rails in their adolescence with other young people. It made me think harder about the Mental Health Act which is too often what is used (or mis-used) and I have to question what people are doing included here IF THEY DO NOT HAVE A MENTAL ILLNESS? How can it be right to put people into hospitals under a section when their only diagnosis is learning disability or autism alongside behaviours that need understanding and responding to, not controlling with locking people up?
So most worrying that so many don’t have a Mark to fight & speak out and so many families are struggling to be heard – like Lynn, mother of Chris stuck in Calderstones recently judged to have serious issues by CQC.
So the flaw seems to be the inclusion of people in the Mental Health Act solely by virtue of a learning disability/autism with challenging behaviours, such that a psychiatrist and AMHP can section them even though they don’t know them. This also raises issues for me about the extent to which they listen to the family about the problems before applying a section and whether professionals in mental health actually have the experience, knowledge and skills needed. Do they in fact have good knowledge of community services which can work with challenges and importantly care? Have the community specialist learning disability health services survived the constant health reorganisations and cuts sufficiently to be able to support crisis as they once could in our area with a dedicated challenging behaviour team including some hands on support – now no longer there? What about the local authority – out area has already had somewhere between 30 and 35% cuts and will have more than 50% cuts by the end of this government’s plans – with no protection to adult case budgets? Could we blame some for burying their heads about need, and they should know all the people coming up in school who present challenges and will need planning for. Why would they be eagerly developing highly expensive skilled community placements ready when health colleagues might turn their backs on making any contribution? After all if Health have to act in crisis then they also have to foot the bill of these shockingly expensive assessment and treatment monopolistic placements – average said to be £3500-£4500 per week!! and one of the women in Winterbourne cost £10k per week. Imagine what sort of community placement could be developed for this. It is time the government listened and insisted that the a&t placement money was put into the community. When people were resettled from long-stay hospitals in the 80’s on in the North West they frontloaded money – the government need to think whether they claw it back from these units once community services are redeveloped and bespoke [placements are developed for people at home.
Under the MHAct action seems to run out on admission. Not clear how they can assess in such weird surroundings – assessment needs to take place in the community – and then as we move to a ‘treatment’ section there isn’t any. How could the ‘treatment’ regimes in general be relevant? How can the ‘treatment’ of Stephanie Bincliffe who died being “treated” with years of seclusion, lack of exercise and fed to death be right? Her family would have been prosecuted if they had done this to her! It would have been grounds to take her away from them. How was Connor being left in the bath for hours or of Chris in Calderstones restrained face down, (his mother thinks) in the mud (which is the nearest he has to a garden) be “treatment”. There can be physical intervention to hold a situation until the person starts to actually see the life they imagine starting to happen, but how can this work locked away in an institution.
So I wonder about the accountability of the MH Tribunal and the Managers’ meetings – are they equipped with the right knowledge and skills to judge whether people’s mental health needs are indeed being met in the least restrictive way as the law demands? How can this be true when we know with the right help and support, the vast majority of people currently incarcerated in assessment and treatment units can be supported and get the right “treatment” in the community with people who care (and there are providers who care and work well with people who have challenged just as much) and who have the skills and work WITH families.
The use of assessment and treatment units feel like psychiatric professionals have taken the power this gives them and if I’m kind might say it’s because they are so institutionalised them selves that they just don’t know that people can be worked with effectively in the community. They should come out and look at all those people who come nowhere near them, whose behaviours have been just as risky and challenging but who’ve been fortunate enough to have had a relevant response and a service that actually cares, is skilled and strives to listen and involve families and respond to their needs and the way things need to happen for the person. It can Mark include Positive Behaviour Management – but only in the context of it being properly trained and managed to understand and so prevent behaviours by such as ensuring good communication relevant to the person, a context in which the person has as much real control and choice as they can, skilled support staff who care ad genuinely like and value the person and the development of a life and activities, relationships etc that are what the person wants or is willing to explore.
3500 people stuck in units feel like a function of people – professionals – who fail to care, fail to get past behaviour, fail to understand it or even try, fail to listen to families and people who do, fail to have any humility about the limits of their professional skills, maybe fail to have the skills, fail to know what’s possible in the community – and worryingly don’t have community experience being incarcerated themselves in the institution. The legal framework needs questionning but so do those supposedly administering it and the commissioners who should have bene planning for discharge as soon as someone is admitted. The “readiness” model applied in a unit which is nothing like the community and offers little of relevance to the person, means people could be stuck there for ever. There is a community treatment order which should be used if we really imagine recall to the unit is needed – I would hope once out everything is done to ensure they ever go back unless a mental illness crisis.
I do wonder if many of the unit professionals would survive outside in the community? I’d like to see a requirement that all of them have to do some work in the community.
We must also let the public who don’t know of the shocking facts of what is being done to people’s families. Ask them to imagine if it were them or their family/friends. And we’re doing this to people who don’t have the same cognition to understand, who need more help in the community not less – which makes the #LBBill essential – so I’m in. Are the rest of you?
We need action urgently…. so all please support #LBBill and #JusticeforLB and join your voices to those in the LDA trying to bring us all together to have a single more powerful voice to DEMAND our government and the next one deals with this. Surely we should have an amazing electoral power if we all joined our voices?f you? We need all people’s rights really being upheld – professionals under the law should involve families in major decisions.