- The Care Act 2014 introduced an obligation on councils to fund independent advocacy.
- Advocacy is important at any stage in the care process where the local council has a duty to involve people in decisions about their care, such as assessment, planning and revision of plans.
- People who are entitled to advocacy include those likely to experience substantial difficulty in grasping the care process. This includes anyone with more than a moderate degree of cognitive impairment, for example a brain injury, dementia, learning disabilities, autism or mental health issues.
- The service user must have no-one else who is able and appropriate to act in the capacity of advocate and willing to do it informally for free, such as a friend, carer or relative.
Everyone involved in adult social care should be aware that funded independent advocacy is now a right for many people. The idea is that the advocate represents and supports the person so that they can be involved in decision-making processes related to their care. The Care Act 2014 introduced an obligation for councils to pay for advocacy for anyone who meets three relatively simple criteria.
Criteria for funded advocacy
First, the person has to be at a point in the Care Act 'customer journey' where advocacy is regarded as critically important. This is any stage where the council has a duty to involve people in decisions about their care – namely, assessment, care planning, revision (but not review) of plans and safeguarding.
Second, the person has to be someone who is likely to experience substantial difficulty in grasping what the process is all about. This includes anyone with more than a moderate degree of cognitive impairment, for example someone who has difficulties with:
- absorbing information and believing it
- retaining information long enough to process it
- weighing up the pros and cons of different options
- communicating decisions.
People who qualify might include those with a brain injury, dementia, learning disabilities, autism, mental health issues and organic causes of impaired mental functioning.
Third, the person must have no-one else who is able and appropriate to support their involvement in the care process and willing to do this informally for free, such as a friend, relative or close associate. Councils could provide funding for volunteers or peer support groups to offer this sort of help, which would avoid the need to fund more expensive advocates. However, most have not considered the advantages of doing this.
To be considered 'appropriate', an 'informal' advocate must not already be involved in the care or treatment of the individual in a professional context or for pay. However, involvement in mere 'support' does not exclude a person from providing informal advocacy.
The advocate must also be willing, although this is not made explicit – they are not under a duty to provide this help. Some will believe that it is better to refuse, so as to enable their loved one to get an independent funded advocate. This is because of the likelihood that the formal advocate will know more about the Care Act.
The person being supported informally by their friend or relative must first consent to that support. Without this consent, the person cannot be seen as appropriate and to negate the need for a formal advocate. A person with the capacity to say yes or no to being helped must specifically be asked. They need to be told the pros and cons of saying yes or no to their friend, relative or associate acting as an informal advocate.
It is highly likely that council staff, or those manning advice and information hubs, are (through ignorance) not exploring or re-cording the process by which consent is obtained. So the likelihood is that people are being asked very casually to agree with a nod that 'You'll be ok with your mum being involved to help you, won't you?' This is not nearly enough to count as informed con-sent, in legal terms. Worse, it is a closed question, and to ask a closed question is professionally incompetent and unethical, given the context – which is determining whether someone has a mandatory statutory right or not. By saying 'yes' the person is giving up all the help that an advocate who really knows the legal framework and principles of community care law could provide.
Access to advocacy
So far, there has only been one case brought under the Care Act of someone not being offered advocacy when they were entitled to it. This involved Haringey council's failure to fund advocacy for a woman suffering from post-traumatic stress disorder who could not orientate herself, tell the time or count. The contention that Haringey should be allowed to regard an assessment carried out without an advocate as nonetheless valid, because 'demand' for advocacy was outstripping supply, was roundly rejected. The judge emphasised that a duty is a duty. The consequence, as with any successful judicial review challenge, was that the assessment and care planning process had to be redone from scratch.
Community Care's journalist Andy McNicoll recently reported that figures from local authorities prove that take-up of advo-cacy in the first six months of the reforms was less than a third of the expected level. Figures from 80 councils in England, ob-tained under the Freedom of Information Act, found that independent advocates were provided to 2.1% of 253,000 people as-sessed under the Care Act between April and September 2015. The government's impact assessment estimated that 7% would qualify for, and accept, support. And these were only the figures for assessments. The survey did not investigate advocacy allo-cations for safeguarding enquiries, where a larger proportion of people could be expected to exhibit substantial difficulty; neither did it investigate allocations for care planning or for revisions of care plans against a person's very first Care Act assessment using the new national eligibility criteria.
Advocacy Action Alliance told Community Care that: 'The poor access to advocacy that this survey indicates imperils those rights, undermines the proper implementation of the Care Act, and results in local authorities not fulfilling their statutory obligations and advocacy providers being unable to provide a comprehensive service to everyone who is entitled to it.'
In the next issue we will be looking at the skills-based and personal requirements of formal advocates and the rules about who can and cannot be regarded as 'independent' of the local authority.
About the author
Belinda Schwehr has practised both as a barrister and solicitor, specialising in public law. She now offers consultancy and training to every part of the adult social care world, concentrating on the Care Act, Mental Capacity Act, the Continuing NHS Health Care Framework, DoLS and Safeguarding. She runs www.careandhealthlaw.com (a serious legal framework resource) and www.schwehroncare.co.uk (her campaigning blog).