Free article: Independent advocacy entitlement

Published: Thursday, 16 June 2016

In the second part of her article on advocacy, Belinda Schwehr, Care and Health Law, explores the extent to which a person must be independent of the local authority to be an independent Care Act Advocate.

Summary

  • The Care Act 2014 introduced an obligation on local authorities to fund advocacy.
  • The Department of Health has recently reissued its statutory guidance on implementing the Care Act, which includes changes to the way local authorities should discharge this obligation.
  • Advocates are funded by central government and organised by the local authority. However, they must discharge their duties independently of the local authority.
  • An advocate must have: undertaken training in advocacy (non-instructed and instructed) or dementia, or working with people with learning disabilities; be competent to represent and support the individual; have integrity and be of good character; and have arrangements in place for supervision.
  • There may be insufficient skilled and knowledgeable advocates to undertake the role. This means that many assessment and care planning decisions will be challengeable as invalid as they have not sufficiently involved the person entitled to be supported by an advocate.

Skills and knowledge

A person providing independent advocacy must be someone who:

  • has appropriate experience (the guidance says: ‘This may be non-instructed advocacy or in working with those groups of people who may have substantial difficulty in engaging …’)
  • has undertaken appropriate training (the guidance says this may be ‘… training in advocacy (non-instructed and instructed) or dementia, or working with people with learning disabilities’ ))
  • is competent to represent and support the individual
  • has integrity and is of good character
  • has arrangements in place to receive appropriate supervision.

Does an advocate need a criminal record check?

Advocates do need to have a criminal record check, which must be an enhanced certificate. This must be part of the recruitment process by local authorities.

Do advocates have to be specially qualified as ‘advocates’?

The guidance says: ‘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’.

In the National Qualification in Independent Advocacy, there is no particular test of awareness of the Care Act 2014. Advocates may be very familiar with the Mental Capacity Act/deprivation of liberty safeguards or the Mental Health Act, but they are unlikely to be aware of the public law of community care, which underpins the Care Act. The Care Act requires that advocates:

  • "ensure that the individual understands the local authority’s duties … and the individual’s rights and obligations
  • make such representations …for the purpose of securing the individual’s rights …
  • where the independent advocate has concerns about the manner in which the assessment or planning function has been exercised, or the outcomes arising from it, …prepare a report for the local authority, outlining those concerns."

Who can be an independent funded advocate?

The local authority must appoint people who are ‘independent’ in the sense required by the regulations, and ‘appropriate’, as per both the Department of Health’s guidance and the Care and Support (Independent Advocacy Support) (No 2) Regulations 2014.

Individuals can always nominate someone of their own choosing but the local authority makes the final decision. The local authority may not even choose to enter into contracts with individuals. Instead, most local authorities are using existing corporate independent mental capacity advocacy (IMCA) providers or ‘hubs’, as this is what they were told to do by the original commissioning guidance.

A company can count as a legal ‘person’, which means that companies can fulfil the criterion of ‘independent’. But there are other hurdles that they must overcome. No privately contracted or local authority funded ‘person’ providing care or treatment is allowed to be appointed as their own client’s advocate.

An individual may wish the local authority to commission their future services from a particular provider after a trial placement or a visit. The rules don’t forbid this provider from acting as that individual’s advocate before the services have been commissioned. However, common sense says that this would not be appropriate – the provider would want the care services contract from the local authority, so could not be regarded as independent of the local authority. 

The regulations state that nobody employed by the local authority can be an individual’s advocate. However, section 2(3)(b) of the regulations also say that an advocate cannot be ‘anyone otherwise working for the local authority’. There is some ambiguity in the regulations about what this means.

Can a provider ever provide advocacy if they are already in a contract with the local authority even if they are not providing services for the individual who needs advocacy?

If an individual nominates as their advocate an organisation that already provides support, care or treatment for other people (not the individual) for payment from the local authority, then the local authority cannot lawfully appoint that organisation as an advocacy provider. This is because the organisation would already be ‘otherwise working for’ the local authority.

Could an employee from a local authority funded provider of care/treatment to others be a self-employed advocate for someone who is not that company’s own client?

This would depend on whether an individual employee of a local authority contracted provider constitutes someone who is ‘otherwise working for’ the local authority. It would really help the sector to deliver on the obligations in the Act if it is decided that they do not.

The new guidance hints that some flexibility may be allowed, by dint of necessity. It discusses ‘Chinese walls’, where an ‘information barrier’ is set up within an organisation to prevent conflicts of interest. A local authority could apply this where it has delegated its own statutory functions to an external company and wants that same company to provide advocacy as well (paragraph 7.45).

A charity doing carers’ assessments is one example. It might be the only local source of people with the necessary competence to act as advocates (at least at a price the local authority would wish to pay). However, the rules on independence, if applied to organisations, would mean that it could not legally do both jobs, because it would be ‘otherwise working’ for the local authority.

So, suggesting that a barrier solves the problem is at least not inconsistent with the idea that the word ‘person’ in these regulations must mean a human person, not an organisation – and/or that individuals could be introduced to provide advocacy in person, even if they are employed by an organisation working for the local authority in another role, without offending against the regulations.  

What if an individual is already paying for his/her own advocate privately? Can the local authority let that advocate continue as the Care Act advocate?

The rules don’t say that a Care Act advocate has to be completely independent of the client, only that they must be independent of the local authority. But it is the local authority’s decision, as explained above.

One could simply require the local authority to let such a person be ‘involved in’ the individual’s assessment or care planning process, because section 9(5) of the Act says so. But the local authority would not have any obligation to pay the person for that kind of input, if the person was charging for that support.

If the local authority is already paying for an informal advocate for someone, can they continue?

The guidance says yes, sometimes. Then again, the regulations would appear to say no, because if the informal advocacy is coming from a company, it would already be ‘otherwise working’ for the authority. However, this might be seen as within the rules in any event, because informal advocacy is often grant-funded, not contracted for.  ‘Otherwise working for’ is unlikely to include grant-funded arrangements, because a grant is merely financial support for a company’s own business output.

Commentary

Recently reported figures from local authorities show that allocation of advocacy in the first six months of the reforms was less than a third of the expected level.

Failure to manage inadequate capacity in the marketplace must constitute maladministration causing injustice, given that it is a corporate statutory duty.

Clarification of whether the ‘person’ referred to in the regulations means an individual (as opposed to a corporate ‘person’), contracted to provide advocacy, would help to maximise supply. However, it would make existing arrangements for corporate supply of advocacy sit uncomfortably with the regulations. An amendment to drop the prohibition of people ‘otherwise working for’ the local authority is probably the better route to ensuring that there are enough advocates to go round. 

In the meantime, interpreting the regulations to permit knowledgeable employees of provider organisations to be introduced by their employing companies, to provide independent funded advocacy for other providers’ clients, may be a way forward to solve the supply problem. This would ensure that the promises behind the Care Act are actually delivered.

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 and www.SchwehrOnCARE.co.uk (her campaigning blog).

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