Introduction

This is the first in a series of briefing papers to support readers to enhance their understanding of key statutory requirements of the Care Act 2014.

Independent advocacy under the Care Act is not the same as general advocacy or advocacy under other legislation (e.g. the Mental Capacity Act 2005 or the Mental Health Act 1983).

The advocacy duty is set out in sections 67 and 68 of the Care Act, and the Care and Support (Independent Advocacy Support (No 2)) Regulations 2014 set out the statutory role, functions and requirements of an advocate appointed under that duty.

The Duty and When It Applies

The Duty

The Local Authority must arrange for an independent advocate to be made available when:

• There is no appropriate other person to support and represent the person (or carer); and
• They feel that the person (or carer) would experience substantial difficulty being involved in the Care and Support (or Support) process to take place.

Exceptions In Specific Circumstances

In each of the following circumstances it does not matter whether there is an appropriate other person or not. If the Local Authority feels that the person with Care and Support needs would benefit from independent advocacy to facilitate and maximise their involvement they must make an advocate available.

• The person is likely to be accommodated in a NHS hospital for a period of 28 days or more; or
• The person is likely to be accommodated in a residential home or care home for a period of 8 weeks or more.

The Local Authority should also make an independent advocate available when there is a disagreement or dispute between the Local Authority and the person wishing to represent the person or carer and both agree that the involvement of an independent advocate would be beneficial to the person.

Care And Support (or Support) Processes When The Duty Applies

Beginning Care and Support Processes

Where the need for an independent advocate has been identified the Care and Support (or Support) process should not proceed without one being appointed. The Local Authority has a duty to ensure independent advocacy is available and it is breach of this duty if advocacy is not available when needed. Care and Support functions undertaken and decisions made in this situation are unlawful and subject to legal challenge.

The only exception is where urgent Care or Support is to be implemented without assessment to meet needs or reduce the risk of abuse and neglect.

Determining Substantial Difficulty

To determine substantial difficulty the person’s ability in each of the following areas should be considered (not formally assessed):

• Understanding relevant information relating to the process or function taking place;
• Retaining that information;
• Using or weighing up that information as part of the process of being involved; and
• Communicating their views, wishes or feelings (whether by talking, using sign language or any other means).

Consideration must be made with regard to:

• Any health condition the person has;
• Any learning difficulty the person has;
• Any other disability the person has;
• The degree of complexity of the person’s circumstances, whether in relation to their needs for Care and Support (or Support) or otherwise;
• Where the assessment or planning function is the carrying out of an assessment (regardless of whether the person or carer has previously refused an assessment or not); and
• Whether the person is experiencing, or at risk of, abuse or neglect.

Note: A determination of substantial difficulty is not a determination about mental capacity. Where there are concerns about a person’s mental capacity the Local Authority should assess this under the Mental Capacity Act 2005 and consider whether it would be more appropriate to appoint an Independent Mental Capacity Advocate (IMCA).

An Appropriate Other Person

Somebody wishing to represent and support the person (or carer) may only be deemed appropriate if:

• They are not engaged in providing care or treatment for the person they wish to support (in either a professional or paid capacity);
• They are not implicated in any enquiry relating to abuse or neglect;
• The person they wish to support has capacity and is able to consent to being represented and supported by them; or
• Where the person lacks capacity or is not able to consent, the Local Authority is satisfied that being represented and supported by the person wishing to do so would be in their best interests;
• The person wishing to represent the person (or carer) has demonstrated that they have adequate direct contact with the person they wish to support in order to do so effectively;
• The person wishing to represent the person (or carer) has demonstrated adequate knowledge of the process in which they will be supporting them to be involved in;
• The person wishing to represent the person (or carer) has demonstrated they are able to act independently from the Local Authority;
• The person wishing to represent the person (or carer) is not employed by or involved with the Local Authority in any way;
• There is no conflict of interest or dispute between the person (or carer) and the person wishing to represent them; and
• Where the person lacks capacity there is no conflict of interest or dispute between the person wishing to represent them and the Local Authority about what is best for the person.

Note: It is not sufficient for a person wanting to act as an appropriate person to simply know the person well or love them. They must demonstrate that they are able to support the person to be actively involved with Local Authority processes.

The Local Authority has the final decision about whether someone is appropriate. However if a person is deemed inappropriate this does not mean they cannot be involved and should still be consulted (where the person or carer consents or it is deemed by the Local Authority to be in their best interests to consult).

If the Local Authority feels a person may be appropriate but later finds otherwise (perhaps they have not had adequate contact with the person) then the duty to make independent advocacy available applies because the person no longer has someone appropriate to support them.

If the Local Authority provides independent advocacy and later finds that a person who they thought was inappropriate is actually appropriate, then the duty to provide independent advocacy no longer applies. However, in this situation the statutory guidance in clear that consideration should be given to continuing the advocacy support if this would be of benefit to the person or carer.

Roles, Functions and Responsibilities Of The Independent Advocate

In All Cases

Based on the specific circumstances and needs of the person/carer the advocate must determine how best to represent and support them for the primary purpose of facilitating and maximising their involvement in the Care and Support process taking place.

The advocate must specifically assist the person/carer to:

• Understand the purpose of the Care and Support process they are involved in;
• Communicate their views, wishes or feelings;
• Understand how their Care and Support needs, (or Support needs in the case of carers) could be met by the Local Authority or otherwise;
• Make decisions in respect of Care and Support (or Support) arrangements; and
• Challenge the local authority’s decisions if the person (or carer) so wishes (or, if the person lacks capacity the advocate deems the Local Authority to be in breach of its duty to promote wellbeing).

Additional Requirements for Safeguarding Processes

In safeguarding processes the independent advocate must also assist the person to:

• Decide the outcomes and/or changes they want;
• Understand the abusive or neglectful behaviour of others;
• Understand the way in which their own actions may have exposed them to the abuse or neglect;
• Understand what actions they can take to safeguard themselves;
• Understand what advice and help they can expect from others, including the police;
• Understand what parts of the process are completely or partially within their control; and
• Explain what help they want from others to avoid further abuse or neglect and recover from their experience.

Steps the Advocate Must/May Take

In order to facilitate and maximise involvement the independent advocate must, wherever practicable and appropriate take the following steps:

• Meet the person/carer in private;
• If the person has Care and Support needs consult with people who are involved in providing care or treatment, and other people in a position to comment on their wishes, beliefs or values (with the person’s consent or in their best interests if they lack capacity).

If the advocate deems it necessary they may also examine and take copies of any relevant records (health or social care records) relating to the person/carer when:

• The person/carer has capacity, is able to consent and does consent to the records being made available to the independent advocate; or
• A person with Care and Support needs does not have capacity and is not able to consent but the independent advocate considers it in their best interests for the records to be provided.

Working With An Independent Advocate

The Local Authority must take reasonable steps to assist the independent advocate to fulfil their role, for example by referring early, setting a timeframe for assessment or review that allows the advocate time to consult with the person/carer and others beforehand or providing records requested by the advocate.

The Local Authority must also:

• Take into account any representations the independent advocate makes on behalf of the person (or carer) in relation to how the Care and Support function is being completed and the impact on the person (or carer);
• Keep the independent advocate informed of any developments and of the outcome of any assessments carried out; and
• Provide the independent advocate with a written response to any report they have prepared that raises their concerns about the manner in which the Care and Support function has been completed by the Local Authority.

If There Is Already An Advocate

If either of the following advocates is already in place the Local Authority is permitted to liaise with that advocate to establish whether they are appropriate and able to support the person under the Care Act:

• An Independent Mental Capacity Advocate (IMCA) under the Mental Capacity Act 2005;
• An Independent Mental Health Advocate (IMHA) under the Mental Health Act 1983.

This enables a seamless advocacy service for the person and prevents them having to repeat their story to different advocates.

If Advocacy Is Refused

The Local Authority should provide information to the person/carer about the advocacy role in an accessible and positive way, to support them to understand the benefits of an independent advocate in their situation and what to expect from their involvement.

If the person or carer says they will not engage with an independent advocate the Local Authority duty to make one available still applies. As such, independent advocacy must still be arranged.

When advocacy is made available if the person still chooses to decline it they are able to do so, and the duty is met.