House of Commons - Post-legislative scrutiny of the Mental Health Act 2007

Post-legislative scrutiny of the Mental Health Act 2007 - Health Committee Contents

3 Independent Mental Health Advocates

38. The 2007 Act gave qualifying patients the right to support and assistance from an independent advocate. The Secretary of State has a duty to make reasonable arrangements to ensure this is available for qualifying patients who include those under detention or subject to a community treatment order. Independent Mental Health Advocates (IMHA) were, until April 2013, commissioned by Primary Care Trusts. From 1 April this year commissioning became the responsibility of local authorities.

39. In oral evidence Alison Cobb described the IMHA role as a key improvement to the legislation and described the service as "a really valuable provision and safeguard for people who are in a very powerless situation".[42] Dr Chalmers added that clinicians knew that the service could work well.[43]

40. The Committee agrees that the 2007 Act has improved safeguards for patients by providing a framework for improved patient advocacy.

Access to advocacy

41. Recognition of the success of IMHAs must be accompanied by a number of qualifications. Our inquiry confirms evidence from the CQC that variation in access to IMHAs is a chronic problem within the system. In 2012 the CQC found that in 21% of care plans there was no evidence that patients had been informed of their legal right to an IMHA.[44] Naomi James told the Committee that a quarter of patients were unable to access advocacy, adding that there was "little equity of access and the style of provision is variable".[45] Dr Chalmers said that providing good quality advocacy for patients with disabilities or communication problems was a challenge[46] and Naomi James said it represented a "broader systematic problem in mental health"[47] whereby services did not recognise a patient's needs.

42. Naomi James argued that advocacy services were under pressure because "as the rate of detention increases, there are fewer people (IMHAs) to go round".[48] Bruce Calderwood argued that the problems related to access were not linked to the rise in detentions.[49] He also argued that trends around access showed that "the problems of lack of access are reducing over time".[50]

43. Anne McDonald told us that research undertaken by the University of Central Lancashire found that for patients "the more you needed an advocate, the more difficult it was to access them."[51] Naomi James reported that patients "are not accessing IMHAs early enough"[52] and "staff are often unaware of the legal duty on wards to inform patients"[53] Both Naomi James and Bruce Calderwood highlighted the CQC's findings which pointed to considerable variation in the service available.[54]

44. The Department of Health has acknowledged that some patients have struggled to access IMHAs.[55] Dr Griffiths told us that a proposal that patients should automatically be referred to an IMHA was currently under consideration by the Department of Health.[56]

45. We recommend that the IMHA service becomes an opt-out rather than an opt-in service. This measure would help address the difficulties patients face in accessing advocacy and eliminate some of the practical problems clinicians face in making patients aware of their right to request an IMHA.

RESPONSIBILITIES OF CLINICIANS

46. The 2007 Act is explicit in its instruction that patients must be informed of their right to advocacy as soon as is practicable.[57] Anne McDonald told us that clinicians should not only explain to patients the rights that they have but that they should also "be facilitating people's access to advocates".[58] Naomi James said that in some cases staff made decisions about whether advocacy was required on behalf of patients.[59] Bruce Calderwood said that clinicians:

should not be judging whether it is in someone's best interests to have an advocate, but it is people's statutory right to have an advocate and therefore they need to be able to explain the statutory rights if the person does not understand. If the person is in a state of confusion and anguish, which will be quite common when people are first admitted, then they should explain regularly, until the person does understand it. The code of practice is very clear on that.[60]

47. Importantly, the CQC emphasises the point that whilst IMHAs have a statutory role to inform patients of their legal status and rights, this does not diminish the responsibility of nursing staff and doctors to communicate this information to patients. The CQC has warned that the presence of IMHAs should not allow hospital staff to abdicate responsibility for this aspect of patient care and they stressed:

in practical terms, nursing staff have much greater contact with detained patients than IMHAs and are best placed to ensure that patients get the best opportunity to understand and exercise their rights.[61]

Naomi James identified a link between the existence of advocacy services and a retreat by clinicians from their responsibilities to inform patients of their rights.[62] Dr Chalmers agreed that this represented a question of good professional practice, explaining that

It is usually the nursing staff's core job to present the rights and to go back to patients. In the first few days of admission, people may be very distressed and may not want to engage in a discussion about rights, so that should be re-presented repeatedly. That is a requirement. If it is not happening, that needs to be picked up by the CQC and the trust board, and those responsible need to feed it back.[63]

48. Although IMHAs have an important supplementary role to play as independent advocates for patients, the Committee is in no doubt that the patient's primary advocates should be their clinicians. We recommend that the review by the professional regulators of advice issued to clinicians, which we propose in Paragraph 33 of this report, should put this obligation for the clinician to be the advocate for the patient beyond doubt.

COMMISSIONING AND FUNDING

49. Local authorities have been allocated responsibility for commissioning the IMHA service which predominantly supports patients undergoing NHS commissioned treatment. Local authorities already commission Independent Mental Capacity Advocates (IMCA)[64] and Bruce Calderwood explained that as local authorities already commissioned an advocacy service this reform would build on "the ability they already have".[65] Simon Lawton-Smith questioned whether local authorities would have the knowledge and skills to commission services which meet the needs of a range of patients.[66]

50. The Committee accepts the basic logic of combining commissioning for similar advocacy services and believes that these added responsibilities represent an opportunity for local authorities to broaden and deepen their skills in this field. There is no regulator of independent mental health advocacy, so commissioners play a vital role in ensuring that advocacy services are of the necessary quality. We therefore urge local authorities to work cooperatively to ensure that patients across the country can access effective advocacy services.

51. The Department of Health told us that £9.2 million had been made available through the local government funding formula to support the commissioning of independent advocacy.[67] This funding is not protected by ring-fencing and will not be tracked to ensure that it is used for the intended purpose.[68]

52. The Committee agrees that local commissioners should manage their own priorities and budgets, but draws their attention to their statutory duties in this respect. It recommends that every Health and Wellbeing Board should seek specific and quantified evidence from their local commissioners to satisfy themselves that these statutory duties are being discharged.

The role and function of advocates

53. Simon Lawton-Smith outlined concerns that the right to an IMHA did not extend to patients who voluntarily admitted themselves to hospital. Dr Griffiths explained that at the time of the 2007 Act IMHA services were not extended to voluntary patients as "it was felt that extending the formal IMHA role to all patients could destabilise some already existing good advocacy services."[69] Both Mr Calderwood and Mr Lawton-Smith acknowledged that policy in Wales had been reformed to include voluntary patients within the Welsh IMHA service.

54. Patients in hospital voluntarily are often equally as unwell as those detained under section. Voluntary patients enjoy few safeguards, and the Committee believes there is a compelling case to extend advocacy provision to this group of patients. Advocacy for patients with mental health problems is now well established and protecting existing services is not sufficient reason to exclude vulnerable people from a valuable service. IMHAs offer crucial assistance to patients and the Committee recommends that the 2007 Act should be amended to extend entitlement to IMHA support to all patients undergoing treatment on psychiatric wards or subject to CTOs.

55. There appears to be some uncertainty over the scope of advice and guidance which IMHAs are able to offer to the patients they help. Anne McDonald told the Committee that, other than offering legal advice, IMHAs can provide formal advice to patients regarding the steps they should take and how to make best use of their rights.[70] This, however, is at odds with the Action for Advocacy code of practice which states that the advocacy role should include "gathering and presenting up-to-date and accurate information to help service users make informed choices but NOT [their emphasis] giving advice.[71] Providers of IMHA services such as the charity SEAP say that advocates cannot "offer advice, opinions or judgements about what is best for you."[72]

56. Alison Cobb told us that it would be "worthwhile"[73] to consider extending the scope of the role and Naomi James concurred that advocates should be able to act as more formal advisers.[74]

57. Part of the value of an IMHA lies in their ability to provide patients with advice which covers both mental health legislation and the health system. The Committee recommends that the Department should issue new guidance which clarifies both the scope and limitations of the advice and support which IMHAs are able to provide. The Committee also recommends that the Department should ensure that the training and accountability systems for IMHAs are appropriate in the context of the role they are expected to fulfil.

42 Q 12 Back

43 Q 17 Back

44 Care Quality Commission, January 2013, p 5 Back

45 Q 11 Back

46 Q 25 Back

47 Ibid Back

48 Q 15 Back

49 Q 97 Back

50 Ibid Back

51 Q 98 Back

52 Q 11 Back

53 Ibid Back