Joint Committee on the Draft Mental Incapacity Bill First Report

16 Chapter 16: Advocacy

The need for advocacy services

292. There has long been recognition by disability groups, professionals, service providers and service users of the importance of advocacy and the valuable role it can play in supporting people with special needs to access services and enforce their rights. The need for and importance of advocacy services for people affected by the Bill's provisions was reflected in the volumes of evidence we received, too numerous to identify all of them individually. In particular we were grateful for the background information on advocacy provided by the Making Decisions Alliance[310] and the graphic examples provided by People First[311], Changing Perspectives[312], Values into Action[313] and other self-advocacy groups[314] demonstrating how advocacy has helped people with learning disabilities to make their views and wishes heard. We have also heard from organisations representing other groups of people with impaired capacity about the benefits of advocacy to their client groups.[315] All of these organisations stressed the need for a right to advocacy services, both to assist people with impaired capacity to make their own choices and have them respected, and also as an important safeguard to protect people from having control over their own lives taken away unnecessarily and in particular from the risk of abuse.

293. The Association of Directors of Social Services[316] endorsed the need for advocacy services in order to "enhance the citizenship" of people with impaired capacity by enabling them to speak for themselves. Advocacy can also provide assistance to professionals in carrying out their roles and responsibilities in relation to people with impaired capacity. The Law Society[317] described the role advocates can play in assisting people with capacity problems to give clear instructions to their lawyers, and said in summary: "we would say that [advocacy] is actually fundamental to enabling people with capacity difficulties to [obtain] access to justice." Care UK[318] providers of residential care services suggested that potential conflicts, for example between carers and family members, could be avoided and resolved through the use of independent advocacy.

294. Amongst the few witnesses to express doubt about the usefulness of advocacy was Rescare[319] who gave examples of poor quality advocates who were inexperienced in dealing with people with severe learning disabilities and who could potentially be influenced by their funding sources, such as the local authority. Rescare also counselled against the suggestion that parents and relatives could not act as advocates, since particularly for those with life-long incapacity, family members will have a "unique longitudinal knowledge of their needs, preferences etc".

295. The Government's view of advocacy services, at least in relation to people with learning disabilities, has been summarised in the White Paper 'Valuing People'[320] as follows:

    "Effective advocacy can transform the lives of people with learning disabilities by enabling them to express their wishes and aspirations and make real choices. Advocacy helps people put forward their views and can play an active part in planning and designing services which are responsive to their needs. This applies to people with severe and profound disabilities and to the less severely disabled."  

296. We are convinced that independent advocacy services play a essential role in assisting people with capacity problems to make and communicate decisions; helping them to enforce their rights and guard against unwarranted intrusion into their lives; providing a focus on the views and wishes of an incapacitated person in the determination of their best interests; providing additional safeguards against abuse and exploitation; and assisting in the resolution of disputes.

A right to advocacy?

297. The organisations who submitted evidence in support of advocacy services stressed the need for the Bill to provide a statutory right to advocacy for anyone affected by the Bill's provisions. People First want "a mandatory right to an independent advocate whenever a person's ability to make a decision is questioned".[321] The MDA[322] recommended that Government funding should be provided to enable local authorities to commission independent advocacy services to meet the needs of local people affected by the Bill. In particular, they recommended that the Bill should place a duty on health and social care professionals to involve an advocate "when key life-changing decisions need to be taken or when disputes around these situations arise". In addition, the MDA suggests an independent advocate should be appointed for individuals who have no other formal or informal network of support.

298. We were reminded that there is already provision in statute[323] requiring local authorities to set up a formal system of authorised representatives for disabled people, to make representations about their need for services. However, this provision has never been implemented because of its resource and administrative implications. The Association of Directors of Social Services[324] confirmed to us that while local authorities already fund "a significant element of advocacy", current resources would not extend to providing a national service. They pointed out that it would not be appropriate for social workers to act as advocates because of the need for independence - to be "completely outside of anybody who has control over resources" and to avoid conflicts of interest.

299. More recently the Health and Social Care Act 2001[325] imposes a duty on the Secretary of State "to arrange, for the provision of independent advocacy services", but such services will only extend to providing assistance to individuals in connection with complaints about healthcare services. While many Primary Care Trusts commission advocacy services, for example for users of mental health services (and may be required to make specialist advocacy provision for patients subject to compulsory treatment if the draft Mental Health Bill is implemented), the services provided cannot meet current demand let alone extend to all people lacking capacity.

300. Our attention was drawn to recent developments in Scotland[326], where local authorities are required to develop local advocacy strategies. An initiative promoted this year (2003) as part of the European Year of Disabled People is the creation of the Advocacy Safeguards Agency, funded by the Scottish Executive Health Department in furtherance of the Executive's commitment to independent advocacy. The overall purpose of this agency is "to make sure that good quality independent advocacy is available to anyone in Scotland who needs it".[327]

301. In answer to a question[328] about the costs involved if a right to independent advocacy was included in the Bill, Health Minister Ms Rosie Winterton said "… quite frankly, it would be extremely difficult to envisage that there would be the scale of resources available. … To say that we could look at the whole range of people who would be covered by the Bill and imagine that in every case there may be an advocate would be unrealistic for us". Lord Filkin added that this would also be "undesirable" since in many situations within the decision-making structure created by the Bill, there will be no need for a formal advocate.

302. We agree that it would be inappropriate for us to recommend that resources be committed to provide a statutory right to advocacy for all people affected by the Bill's provisions. However, we recommend that a provision be included in the Bill, similar to that in the Health and Social Care Act 2001[329], to empower the relevant Ministers to arrange, to such an extent as is considered necessary to meet all reasonable requirements, for the provision of independent advocacy services to incapacitated adults affected by the Bill's provisions.

303. We recommend that the Government consider setting up an agency, similar to the Advocacy Safeguards Agency in Scotland, with the aim of promoting standards for good quality independent advocacy.

304. We believe that these measures would serve to raise awareness of the importance of advocacy while facilitating, so far as available resources allow, the development of a range of advocacy services, including self-advocacy, citizen advocacy and professional advocacy, to meet the needs of incapacitated adult in a variety of situations. We see no conflict with the role which will continue to be taken by informal advocates (family, friends and neighbours) in promoting the interests of the people they care for.

The role and status of advocates

305. In paragraph 5 above, we set out the various ways in which advocates may provide assistance to a person with impaired capacity. In order to carry out these varied but essential roles, advocates must be recognised as having a valid status to be involved in decision-making processes and be allowed to represent the views and wishes of the person concerned.

306. We recommend that the Codes of Practice produced under the Bill provide guidance on the appropriate use of advocacy services, in particular suggesting priority situations when it may be essential for an incapacitated person to have access to an advocate.

Standards and quality of advocacy services

307. Questions have been raised with us about as to how the standards and quality of advocacy services can be maintained.[330] Many advocacy services have their own code of conduct[331] through which individual advocates can be held to account. In particular, advocates must be aware of any potential conflicts of interests, either in relation to the person they are acting for or the source of their finances. Under the procedures we recommend in paragraph 302 above, Ministers could arrange for advocacy services to be provided through the commissioning processes of local authorities and Primary Care Trusts. Such contracting arrangements could provide some means of monitoring and ensuring quality standards, so long as the independence of advocacy services from their funding sources can be maintained. The establishment of Advocacy Safeguards Agency as recommended in paragraph 303 would assist in evaluating services and promoting good practice.

308. We recommend that all organisations commissioning or providing advocacy services to incapacitated adults should have satisfactory procedures in place to ensure that the standards and quality of independent advocacy services are monitored and maintained.

310   Ev 30 MIB 950. The Making Decisions Alliance is a consortium of 28 organisations working with people who may have difficulty making or communicating decisions. Back

311   Ev 228 MIB 778 Back

312   Ev 226 MIB 71 Back

313   Ev 733 MIB 951 Back

314   See for example Ev 315, MIB 690, Ev 334 MIB 746, Ev 340 MIB 777, Ev 361 MIB 821 Back

315   See for example Ev 475 MIB 1057, Ev 479 MIB 1060, Ev 482 MIB 1061  Back

316   See for example Qs 429-431, 433 (Mr Dixon),  Back

317   Q634 (Mr Clements) Back

318   Ev 245 MIB 1202 para 4.4 and Q674 (Mr Allen) Back

319   Q688 (Dr Brook) and Ev 254 MIB 1217 page 3  Back

320   Department of Health, Valuing People: A new strategy for learning disability for the 21st century (2001), para 4.5 Back

321   Q662 (Mr Lee) Back

322   Ev 85 MIB 1188 page 3 Back

323   Disabled Persons (Services, Consultation and Representation) Act 1986 ss 1-2 Back

324   Qs430-431 (Mr Dixon) Back

325   Health and Social Care Act 2001, Section 12 Back

326   Ev 30 MIB 950 para 5b.29 Back

327   See Back

328   Q732 (Ms Winterton) (Lord Filkin) Back

329   Health and Social Care Act 2001, Section 12 Back

330   Ev 87 MIB 1188 Back

331   See for example UKAN, Advocacy - A Codes of Practice (1994) Back

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