Care Bill [Lords]

Written evidence submitted by Tim Kendall (CB 07)

Returning to the Care Bill and further to the second reading, I have concern over some of the wording of the section on 'Independent Advocacy'.

Section 68) subsection 4) requires a local authority to make a judgement about an individual or carers ability to communicate their wishes. This may be perfectly appropriate where an individual is clearly lacking capacity, as the criteria in Section 68) 4) a)-d) are drafted similarly to the formal capacity test set out in the Mental Capacity Act code of practice. However, in the case of an individual with capacity or a carer, performing capacity tests and in effect making a best interest decision before making a referral to an independent advocate it is not appropriate or ethical.

I believe that this no-doubt unintended consequence of the Care Bill's current drafting can be rectified with an inclusion in section 68) of a clause similar to an IMHA referral in the Mental Health Act. ie ; (in layman's terms) 'prior to a meeting under the provisions laid out in section 68) sub section 3) a)-i), an individual or carer, unless previously identified by professionals as lacking capacity, shall be provided with both written and oral information regarding their right to an independent advocate and the role of an advocate. Individuals and carers may refer themselves to the local Advocacy service identified, or ask to be referred.'

The same applies to section 68) subsection 5). It is not primarily for the local authority to decide that an individual has someone 'appropriate' to support them. Again the individual or carer needs to be informed in advance about the role of an independent advocate and right to access one as they may prefer to use their support, above a friend or relative, given the choice.

The same principle applies to section 69).

I hope my submission might ensure the Bill really provides effective advocacy support for individuals and carers, as intended.

January 2014