“You can’t get an advocate if you’ve got anyone else who’s able to speak for you”

Advocacy funded by the local council is a wonderful thing, assuming the advocates know what they are talking about. The notion of a duty to fund advocacy for people who can’t cope with assessment and care planning or safeguarding is based on the idea that the European Convention on Human Rights outlaws discrimination in the enjoyment of other rights and freedoms under the Convention, and that therefore cognitively impaired people must be made equal in the context of the practicalities of getting their entitlement under the Care Act.

Why it doesn’t apply to the application of the decision support tool in the context of eligibility for Continuing Health Care is anyone’s guess, but that is life.

The rules about advocacy say that if you would suffer substantial difficulty were it not for an independent funded advocate, to take on the role of supporting your engagement as much as possible then you get an advocate (whether you want one or not, ironically, but never mind).

There is an exception to that right, though, if you have someone else, who’s appropriate to support you informally, and willing to do so.

Enter stage right, most people’s spouses, relatives, or friends, you would think, and therefore the myth has grown up that you can’t have an advocate under the Care Act if you have got someone else to speak up.

That is not the law however. There are extra caveats. The person is not allowed to count as appropriate to support you informally, IF they are involved in your care or treatment (not your support, please note) for money. So a person whose relative is paid out of their direct payment to do some of the meeting of needs is not allowed to be an informal supporter, because they are excluded, however wonderful they are.

Secondly, even if your relative is keen to do this informal role, and not inappropriate for any obvious reason, and all set to do it, there is one further crucial aspect that is often overlooked, and which makes the myth a myth. It is this: the person who would qualify for an independent funded advocate, were it not for their informal supporter being all set to go, must be asked for their consent to the specific person taking on that role. So the service user, with substantial difficulty in engaging, is still entitled to say ‘I don’t want my Dad doing the talking or being there’. They don’t have to give reasons, and acquiescence is not enough.

In all cases where consent is not given by the person to be assisted with the statutory processes,  the council still has to appoint an independent funded advocate for that person. The point is that not only may that be less uncomfortable for the person, but also the advocate may KNOW a lot more than a person’s relative about how the Care Act works, and what is conceivably able to be fought for, and what must be given up, as impracticable or unaffordable, by any reasonable standards.

What if the person lacks capacity, though, you might well say, even to give consent. That is covered in the regulations, the reference to it then being a question of best interests, to be decided by the council, if the person wanting to be the informal supporter is not otherwise inappropriate. The lower any level of apparent objection or discomfort on the part of the person there is, the more likely it is that the willing person will be given the informal support role, unless there is some other concern about that other person’s good faith or ability to support engagement without taking over or hijacking the person’s assessment.

There is a further situation when one is still entitled – even forced to have an advocate even though one’s informal supporter is ready to undertake the role, and hasn’t SO upset the council already that they’ve declared the supporter to be beyond the pale as too disruptive or whatever.

It is this exception to the exception to advocacy rights: where

4(3)      

         (a) there is disagreement on a material issue between the local authority and the person referred to in section 67(5) [ie the informal supporter] … in the case of the individual;

and

b) the local authority and that person agree that making arrangements under section 67(2) of the Act in relation to the individual would be in the best interests of that individual.

We would be hard pushed to think of a situation where either the council or the relative could conceivably NOT agree that that would be a good thing to do, in all honesty, but in real life we know that this happens. If we were relatives with a lot of anxiety, we would WANT advocates if they were at least competent advocates, but people don’t necessarily see it that way.

If the council wants to appoint, but the relative doesn’t want to give way, then on paper the council does not HAVE to appointe, but there is nothing to stop it. The risk for the entrenched parent here is that he or she will be politely told that they are not going to be seen as the informal supporter and neither as the person’s best interests consultee under the MCA, and in both cases, what does the parent or other relative intend to do about that then? Very few will want to spend the money on challenging that decision and by the time a complaint is made, rejected and considered by the Ombdudsman, time will have marched on and more serious decisions likely made!

So these are the situations where having a relative willing to speak for you does not take away your right to an advocate.

It makes it clear that being a person’s next of kin, isn’t enough for the role of informal supporter, let alone formal advocate, but in a good way, we think, overall.

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