Independent advocacy Care Act 2014

Outline of content  Introduction Introduction  What independent advocacy under the Care Act 2014? What independent advocacy under the Care Act 2014?  Interface with the Mental Capacity Act 2005 Interface with the Mental Capacity Act 2005  When the Care Act independent advocacy duties apply When the Care Act independent advocacy duties appl  Summary Summary 2

Supporting a person’s involvement 3  Duty to arrange for independent advocate Is there an ‘appropriate individual’ – a carer, friend or relative – that can facilitate their involvement?  Agree ‘appropriate individual’  Provide support and make adjustments Yes No Might this person have difficulty in being involved? Can they be better supported to enable their involvement? [Reasonable adjustments under the Equality Act 2010] Yes Do they still have ‘substantial difficulty’ in being involved? Yes

Judging ‘substantial difficulty’ in being involved Understanding relevant information Retaining information Using or weighing up the information Communicating their views, wishes and feelings 4

An ‘appropriate individual’ to facilitate the person’s involvement Considerations Who is appropriate to support and represent the person? Is a family member or friend an appropriate individual? Must Be able to facilitate the individual’s active involvement with the process The person who is supported must agree to the suggested ‘appropriate individual’ Must NOT Be someone who is already providing care or treatment professionally or paid 5

Independent advocacy under the Care Act Role When? Who for? Support and represent Facilitate involvement Substantial difficulty No one appropriate is available Adults Carers Children in transition 6

The role of an independent advocate under the Care Act  Advocates should represent the individual, always with regard to their wellbeing and interests, including helping a person to:  Understand the process  Communicate their wishes, views and feelings  Make decisions and challenge those made by the authority  Challenge a decision made by the local authority  Understand their rights  Support and represent them in the safeguarding process  Look at records and to talk to those who can help  Consult both the records and the family and others if the person does not have capacity 7

Representation 8 Advocate has concerns Must write a report outlining their concerns Local authority should convene a meeting and provide a written response

Who can act as an independent advocate under the Care Act?  Independent advocates must have:  a suitable level of experience  appropriate training  competency in the task  integrity and good character  the ability to work independently of the authority  arrangements for regular supervision 9

Mental Capacity Act (MCA) 2005  All relevant people involved in the key care and support planning processes, and all independent advocates, are expected to understand and apply the Mental Capacity Act  They must be able to:  evidence that they are using the MCA principles  understand supported decision making; and the importance of considering least restrictive interventions  understand how capacity assessments are made; how best interests decisions are made, and what a deprivation of liberty is  They are expected to have some knowledge of relevant case law and key messages from the Court of Protection 10

Independent Mental Capacity Advocates (IMCA)  The Mental Capacity Act gives some people who lack capacity to make a specific decision a right to receive support from an Independent Mental Capacity Advocate (IMCA)  IMCA services are provided by organisations that are independent from the NHS and local authorities  An IMCA safeguards the rights of people who are facing a decision about change in long-term accommodation, and serious medical treatment decisions, and lack capacity to make a specified decision (at the time it needs to be made), and have nobody else who is willing and able to represent them or be consulted  IMCAs must have: specific experience; IMCA training; integrity and a good character; and be able to act independently 11

Interface with the Mental Capacity Act  There are similarities with the MCA, but the duty to provide independent advocacy under the Care Act is broader and applies to a wider set of circumstances e.g. it provides support both to people who have capacity but who have substantial difficulty in being involved and to those who lack capacity  The local authority must meet its duties in relation to working with an Independent Mental Capacity Advocate and those in relation to an independent advocate under the Care Act  The same advocate can provide support as an independent advocate under the Care Act and under the Mental Capacity Act, if trained and qualified to do both  There are many advantages of having one independent advocate, or one organisation, providing both services 12

When the Care Act independent advocacy duties apply  From the first point of contact, and at any subsequent stage of the assessment, the identification of a potential need for independent advocacy may arise from the person themselves, carers or family or others  Consideration of whether a person has substantial difficulty in involvement applies throughout any subsequent part of the care and support planning and review processes  The local authority must consider whether there is anyone appropriate who can facilitate the person’s involvement, and if not, arrange for an independent advocate  There is also a separate duty to arrange an independent advocate for adults who are subject to a safeguarding enquiry or safeguarding adults review 13

Providing an independent advocate where there is an appropriate person  There are times when an independent advocate should be provided even where the person has family or others involved. These are:  when it is suspected that the family member or other person is abusing the adult  when a placement is being considered in NHS-funded provision and the local authority believes that it would be in the best interests of the individual to arrange an independent advocate  where there is a disagreement between the local authority and the person who would facilitate the individual’s involvement, and they both agree that an independent advocate would be beneficial to the individual 14

Summary  The local authority must involve the individual in the key care and support processes of assessment, care and support planning and review, or safeguarding  If the individual has substantial difficulty being involved, and there is no one appropriate to support them, the authority must provide an independent advocate  Independent advocates support and represent individuals to be involved as fully as possible  This widens the use of independent advocacy beyond current Mental Capacity Act considerations, and will apply to people who have ‘capacity’ and to those who are judged to ‘lack capacity’ 15