Under the Mental Capacity Act, getting an advocate called an IMCA is dependent on a view that a person lacks mental incapacity with regard to specific listed issues – long term accommodation in care homes or a hospital where the council or CCG is making the arrangement, or serious medical treatment, as examples.
Under the Care Act, getting an advocate depends on substantial difficulty in engaging with the processes of assessment and care planning or safeguarding and revisions of care plans – all processes where the council is obliged to ensure one is as involved as much as possible.
We think that a lesser degree of cognitive difficulty as the trigger for Care Act processes, because these processes are intellectually trickier to understand, than the question of implementing a decision of the nature mentioned above, under the Mental Capacity Act, in the best interests of the person, if they appear to be objecting. So many more people should be qualifying for advocacy under the Care Act than for IMCAs under the MCA.
The prior decisions before a care plan is actually implemented, as to eligibility and what is needed, adequately and appropriately to meet needs, under the Care Act, are NOT Mental Capacity Act decisions. They are public law decisions, and the council’s making them does not require the person’s consent, capacitated or otherwise. Funding advocacy is one way of limiting the risk that the system is not operating properly, and that’s important, because if that were to happen, it would impact disproportionately on people with cognitive impairments, and not merely those lacking in capacity, and that would be discriminatory, at the very least.
That concept of ‘substantial difficulty’ is not something that applies just because of language barriers, ignorance of how the system works and what the council’s duties are, or intellectual inability or one’s level of education. Those issues can be solved with interpreters, better advice and information, and the right of anyone who is struggling just because it IS hard to have a person of their own choosing be involved with the person, by the council. (See s9(5) for that right).
‘Substantial difficulty’ is specifically related to cognitive functioning and the approach to it echoes the 4 stage process in the MCA – absorbing the information, retaining it, weighing it and communicating one’s position. So things like a degenerative deterioration or a disability or a condition that goes to (ie has an effect on) how one processes information, will raise the possibility of entitlement to advocacy.
The question is not whether a person can make a decision, which is not necessary under the Care Act – but whether they will struggle to be involved. But in the end, an assessment is an assessment and a care plan is a care plan, whether or not someone has engaged with it, or understood it, let alone consented to it.
One really important difference between generic advocacy that might be grant funded, locally, and this kind of special advocacy is that the council is the only organisation that can make the decision about whether Independent Funded Advocacy is triggered; a voluntary agency that is funded to do generic advocacy cannot simply respond to a request for it, with a yes, without that judgement being made by the council or its delegate in a given person’s case.
The regulations do not define substantial difficulty, but they do provide for a set of considerations which cannot be left out of account; it is illegal not to apply those factors when considering someone’s likely engagement with the customer journey through the social care decision-making process, and whether their difficulties have to be seen, objectively, as substantial.
The criteria are as follows: regulation 3
3. In deciding whether an individual would experience substantial difficulty of the kind mentioned in section 67(4) of the Act (difficulty in understanding information etc.), a local authority must have regard to—
(a) any health condition the individual has;
(b) any learning difficulty the individual has;
(c) any disability the individual has;
(d) the degree of complexity of the individual’s circumstances, whether in relation to the individual’s needs for care and support or otherwise;
(e) where the assessment or planning function is the carrying out of an assessment, whether the individual has previously refused an assessment; and
(f) whether the individual is experiencing, or at risk of, abuse or neglect.
It is definitely not right to think of Care Act advocacy as triggered by the same factors as trigger IMCA advocacy under the MCA, or that incapacity is any part of the test for accessing independent funded Care Act advocacy.