Advocacy pre Care Act

Introduction

Advocacy is the name given to the assistance given by people to those who want it, in support of accessing their rights, persuading someone in a position to exercise discretion in their favour, pursuing a claim, or making a complaint. Formal advocacy is usually the preserve of lawyers, who are regulated by their professional bodies. In addition, recent legislative changes have introduced new provision requiring public bodies to ensure certain categories of persons have access to independent advocates .

Since April 2007, under the Mental Capacity Act 2005, the NHS trust or Local Authority where an incapacitated person is residing must appoint a suitably experienced Independent Mental Capacity Advocate where an ‘unbefriended’ incapacitated individual may require serious medical treatment or a long term move into state arranged care. In addition there is a discretionary power to appoint an IMCA for a review of a placement or when there is an allegation of abuse and the NHS/LA intend to take protective measures. Where an IMCA is appointed they have a right to meet with the person alone and access to the person’s private information, including health and social care records.

Under s30 of the Mental Health Act 2007 the ‘appropriate national authority’ will be responsible for ensuring that an independent mental health advocate is available to:

  • All patients detained under MHA (except under s4, 5,135 or 136), subject to guardianship or CTO’s; or
    • Considering serious medical treatment to which s57 MHA applies; or
    • Under 18 and discussing serious medical treatment to which s58 MHA applies.

IMHA are expected to assist P to obtain information about and understanding of provisions of the MHA which he may be subject to, his rights under the MHA, medical treatment. They will have rights to meet with professionals and patients and, subject to their consent, have access to the patient’s medical/SSD records. This provision is not yet in force and it is anticipated that it will be implemented in October 2008. The Department of Health have issued draft regulations which are still subject of consultation. These statutory schemes will continue to run alongside the existing network of formal and informal advocacy

Informal advocacy, however, is largely unregulated, and can be provided at any level, if arrangements exist to fund it. The informal advocacy movement has grown up in the UK to the point where there is a sophisticated network of organisations and individuals able and willing to assist those who either want help, or who could not form or communicate their choices effectively, without help.

In health and social care, most advocacy is voluntary, so far as the client is concerned, but this does not mean that it does not have to be funded by someone. We would guess that at least half of the available advocacy services in this field are funded by grant monies from local authorities and other statutory bodies. Some of it is formally contracted for by those bodies, as a sort of out-sourced advisory and representations service for the public (under, we presume, the authority’s general welfare powers of s29 National Assistance Act). Yet another chunk of the advocacy available here is provided as an additional service by large providers who analyse what somebody might need, and then put that forward, bidding at the same time, to be the contracted provider, if the representations are accepted by the statutory purchaser which owes the provision duty to the citizen.

‘Independent’ advocacy is the title given to all these forms of help, so far as we are aware, but as can be seen, the accuracy of that epithet is a question of degree.

Here we simply offer up a legal analysis, in support of site visitors being able to come to an informed conclusion about the issue concerned – to what extent does an advocate need to work on the basis of the ‘best interests’ of their clients, as opposed to the individuals’ perceived wishes?

The advocate’s role

When someone goes to see a lawyer, they expect to be told what the options are, in terms of the law’s application to their problem, and to be given advice as to what is best in that regard, but they expect to make up their own minds and instruct the lawyer to go down one route or the other. Subject to their decisions being immoral, illegal or a fraud on the court, a lawyer must follow the client’s instructions, even if the instructions are short-sighted.

Clients seeking informal advocacy, can expect the same, if they have full capacity to make choices. But a large number of informal advocates’ clients will be less than fully ‘capable’ (so far as the law is concerned) of making choices, formulating ‘instructions’ or communicating them, even to the advocate.

There is a part of the advocacy movement which, wanting to maximise the independence of disabled people, believes that any ability to display pleasure or contentment with one’s current situation, by demeanour, constitutes capacity to make decisions. This is not true, in law – the test differs according to the complexity of the issues involved. The legal test may be found in the case of Re MB, and the Mental Capacity Act 2005, and basically turns upon the person’s ability to take in relevant information about the pros and cons of the issue in question, understand the information and its significance, retain it long enough to weigh the consequences of one option against another, and then reach a conclusion.

We agree that whenever anyone voluntarily assumes responsibility for the welfare (in any respect) of a person of less than full capacity, a duty of care may be owed, and the standard of care required will be higher for that person, than it would be for a person of full capacity.

However, we think that the advocate’s duty of care in negligence, is limited to forming a proper view about the mental capacity of the person to make decisions involving risk. After all, the heart of the role is the interpretation and communication of the person’s wishes for their future care, not actual assistance with launching the hypothetical hang-gliding client into gale-force winds.

In law, if the client enjoys sufficient mental capacity to make the relevant decisions, then the advocate is doing nothing wrong in communicating those choices, however dangerous they might be. But if the advocate makes an unreasonable mistake about the legal test of capacity, or misapplies it to the specific client’s abilities, and hence contributes to a decision to support the person in unreasonable risk-taking, or fails to take incapacity into account (perhaps because of ideology?) and hence makes no attempt to distinguish between the person’s wishes, and other objective views as to their best interests, then we think that there is a risk of liability for resultant foreseeable harm, in law.

Who really benefits from advocacy services for people with a severe mental incapacity?

We think that what advocates do, when putting forward representations to challenge the establishment position, in assessment or care planning, in respect of severely incapacitated people, is simply to act as objective proponents of social care theory, for the assistance of the local authority.

In such cases, assuming the advocate does not put the client forward as capacitated, we do not think that an advocate takes on a duty of care at all to the ‘client’, and we have to say that a court would be more likely to attribute any negligence in that role, if the client suffered harm, to the public body concerned. If an assessment is so inadequate or incompetent that an incapacitated client suffers foreseeable harm as a result, reliance on the advocate’s representations might have been at the root of the authority’s view, and hence have contributed to the outcome.

Independence?

Parliament gives the local authority the power and the obligation of deciding what the needs of the individual are, and how to meet them, having taken the client’s wishes into account. Local authorities often grant-fund independent advocacy services, precisely because they feel very uncomfortable taking discretionary decisions to do with service provision, in the cases of those without sufficient capacity to make choices, in law, without any external input, such as they would normally get from carers and relatives. This is why we see the advocate as simply part of the authority’s efforts to inform itself as to the best interests of the client – which the authority must make a decision about, if its intervention is to be lawful, without effective consent.

Lest advocates fear that they might be joined in, as co-defendants or third parties in a claim for damages, eg. brought by estate of that hypothetical hang-gliding community care client, whose choices have been enthusiastically supported by the advocate – we do not think it would be reasonable for an authority to ‘rely’, in the legal sense, on the representations of the advocate as to capacity or best interests – s/he is an independent contractor, if a contractor at all, and certainly not the agent or delegate of the authority – nor an expert witness.

Neither do we think that the authority itself, on the current law as it stands today, would even be found negligent itself, if harm resulted from a particularly brave decision about supporting someone to take an obvious risk – for that is not the sort of decision that the judiciary will ever want to second-guess. Besides, the caselaw grants a virtual immunity against negligence liability to local authority care staff in their discharge of any statutory duties turning upon discretionary concepts such as what is a ‘need’ in the first place, and what is appropriate to meet that need.

 

Is the Best Interests approach necessary, despite the low risk of liability in negligence?

Whilst we believe that informal advocates owe a duty to take reasonable care when themselves deciding whether the person has capacity or not, when acting for moderately incapacitated clients, this means that they do have to go on to act in the best interests of the client, if they decide that the person does not have capacity. This is confirmed by the Code of Practice issued in support of the Mental Capacity Act 2005. Under s.4 of the Act a person who acts in connection with the care or treatment of an incapacitated person must act in accordance with their best interests. It is only in dong so that the person is able to rely on the defence to any legal liability afforded by s.5 of the Act

The point is, (unpalatable though it may be) that incapacitated wishes do not count, in law, as choices which have to be respected. The legal authority for (and most telling example of) this statement is Re F, in which a Court gave Hackney LBC a declaration that it would be lawful and indeed necessary for the authority physically to take an 18 year old woman (with a learning age of 5 yrs) away from her mother – and restrain or even detain her in a residential facility, and grant only supervised access to her for her mother, pending an investigation of neglect – despite the woman’s clearly expressed wish to remain at home with her mother.

We would therefore liken the position of the informal advocate to that of the Official Solicitor – the public office which can be called upon to represent those who cannot, in law, make choices as to consent to, or refusal of, medical treatment, or ongoing day-to-day care arrangements. The first thing the OS has to do, when discharging this role, is get expert advice about the mental capacity of the individual. If the person has capacity to make choices, the OS will put these forward, however undesirable the consequences might be. But if the person does not seem to have capacity, the OS will still put forward their perceived wishes, but at the same time, put forward options which she or he thinks would be in the best interests of the person – taking advice from experts. The court then decides which course of action is preferable…

Conclusion

Thus where advocates are facilitating communication of the choices of a capacitated person, we would agree that it is their instructions which must be put forward. Having heard them, the local authority must decide whether it can and will accommodate those wishes, or indeed, whether they must accommodate them, because, for instance, the Choice of Accommodation Directions give a legal entitlement to a placement in the home of one’s choice (subject to suitability, availability and price) – or because the person is refusing consent to domiciliary care services going in to their own home.

When the person lacks capacity, however, then the advocate should put forward the client’s wishes, acknowledge that they may not be capacitated wishes, but then make representations based on their own experience, insight, wisdom and resources, and access to expert evidence, as to the best interests of the client.

Ultimately, the advocate can have no greater role than the relatives or carers of that client, and needs no greater training in the concept of best interests than those people will have had – for what they have in common is the right to provide input, based on knowledge of the client.

We do not think that the role of the advocate should be combined with that of an expert witness, although we can see that an advocate may become an expert and be asked for an opinion, as a witness, in other cases. So we would sum up the skills and responsibilities of an advocate as

–     effective communication with people with disabilities,

–     awareness of the legal test of capacity,

–     an ability to probe and test others’ assumptions, and

–     good connections with experts in assessment of mental capacity and care provision.

 

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