Statutory Advocacy Services

Advocacy Services

In some cases you have the legal right to an advocate, this is called Statutory Advocacy. In England and Wales there are four different types of Statutory Advocacy which we have explained below, along with generic (sometimes called ‘community’) advocacy.

Care Act Advocacy

Who it’s for: The council will consider whether you have an ‘appropriate individual’ to support you. It can be someone in your family or a friend, but if you do not have an appropriate individual then you have the right to an Independent Care Act Advocate. Care Act advocates can support:

– Adults

– Carers of an adult or young person who is about to start using adult services

– Children or young people who are moving to adult care services

If the council is making decisions about your care and support they must consider whether you would have ‘substantial difficulty’ being involved. Substantial difficulty means that you have difficulty:

– Understanding information, what is happening and your available choices

– Remembering information

– Involving yourself in decisions about what care and support you need

– Telling people your views, wishes and needs

Why it exists: The Care Act says local councils must involve people in decisions about their care and support. An advocate can help you be heard, understand your choices and make your own decisions about your care needs. Changes brought in by the Care Act mean that any decisions about your care will consider your welfare and what is important to you so you can stay as healthy and independent as possible. Advocacy will be available during:

– Your care and support needs assessment

– Your care and support planning

– Your care and support reviews

– Having a safeguarding enquiry (if someone thinks that you may be unsafe or at risk) or arranging for a Safeguarding Adults Review

What the advocate can help with:

– Understanding what is happening

– Understanding your choices so you can make your own decisions

– Telling others what you want and about your views and feelings

– Making sure your rights get heard

– Making sure that plans say what you need them to say

– Write a report about decisions you are unhappy with

Independent Mental Health Advocacy (IMHA)

Who it’s for: If you are being detained under the Mental Health Act, you are legally entitled to support from an Independent Mental Health Advocate.

Why it exists: An IMHA provides help independently from the NHS and private healthcare teams.

What an IMHA can help with: Our specially trained advocates help people to understand their rights and participate in decisions about their care and treatment. An IMHA advocate can help you to:

– Understand and exercise your rights

– Request a review of your section

– Access information about your treatment

– Understand how to raise concerns about your experience and care

– Prepare and support you during meetings with medical and care staff

– Plan for your care

Independent Mental Capacity Advocacy (IMCA)

Who it’s for: Anyone over the age of 16 who do not have an appropriate family member or friend to consult or represent their views, and lack the capacity to make a decision about:

– Any serious medical treatments

– A move to a hospital that would be for more than 28 days

– A move to a care home that would be for more than 8 weeks

– Your safety or care is likely to result in you being deprived of your liberty

are legally entitled to an Independent Mental Capacity Advocate (if decisions are being made about serious medical treatment or a change of accommodation).

Why it exists: When someone cannot ask for an advocate themselves because they lack capacity, it does not mean their views and wishes should be discarded. Independent Mental Capacity Advocacy was introduced as part of the Mental Capacity Act. This gives people who have an impairment, injury or a disability that has meant they are unable to make a specific decision for themselves, the right to receive independent support and representation.

What the advocate can help with: They will meet with you, and the people around you, to gather as much information as possible about your current situation and your wishes. They will help you to make decisions, review care or medical records and speak to people who are involved in your care.

Our Independent Mental Capacity Advocates gather information to help decision makers, such as doctors, to reach ‘best interest’ decisions about elements of their treatment and care.

An IMCA helps to:

– Find out your views, wishes and feelings about the decision. This can be by talking to you and the people you are close to and it may involve talking to professionals who care for you.

– Communicate your views, wishes and feelings to decision makers.

– Provide information to you and to the decision makers to help work out what is in your best interests.

And make sure that decision makers:

– Apply the principles of the Mental Capacity Act;

– Act in your best interest;

– Choose the least restrictive option for you.

An IMCA can challenge decisions made by the decision maker, including the capacity assessment. IMCA’s will be allowed to meet with you in private and can ask to see all relevant health, social services and care home records.

IMCA’s can also become involved with Deprivation of Liberty Safeguard (DoLS) cases, an addition to the original Act which provide protection for vulnerable people. DoLS advocates protect the rights of those admitted to hospital, or live in residential care, lack capacity, and it appears they are being deprived of their liberty.

Our advocates work with you to ensure your rights under the Mental Capacity Act are upheld and that the deprivation is lawful, proportionate and in your best interests. The service is available to anyone over 18 who cannot understand the decisions being made about them, and do not have family or friends.

Factors that must be fulfilled before someone can be deprived of their liberty:

1. It must be to provide a specific treatment or care plan that is in the person’s best interests.

2. There is no alternative that would provide a suitable care plan, without depriving the person of their liberty. This must be assessed by doctors or care professionals.

3. The hospital or care home where the person is staying must apply to its supervisory body (PCT or local authority) for authorisation to begin the care plan.

4. The supervisory body must conduct six assessments to confirm that deprivation of liberty is lawful and appropriate:

· Age assessment: confirm aged 18+

· No refusals assessment: to ensure the proposed treatment does not conflict with a valid decision already made by an attorney or deputy on the person’s behalf, or with a decision made in advance by the relevant person themselves

· Mental capacity assessment: to confirm whether the person being deprived of liberty lacks capacity to consent to the arrangements made for their care and treatment

· Mental health assessment: to check whether the person being deprived of liberty is suffering from a mental disorder as defined in the Mental Health Act 1983 (as different rules may apply)

· Eligibility assessment: to confirm whether the person is eligible to be deprived of liberty under the MCA DOLS

· Best interests assessment: to confirm whether it is in the best interests of the person to be subject to the authorisation, necessary to prevent them from coming to harm

Independent Health Complaints Advocacy (IHCA)

Who it’s for?

– Anyone who requires support to make a complaint about their NHS care.

– Anyone who wishes to complain on behalf of a friend or relative, provided that person has given written consent where they are able to do so. We can also support with complaints about the treatment of someone who has died.

– Young persons (under age 18) are entitled to complain independently. The NHS cannot consider a complaint made on behalf of a young person unless they are sure the young person is unable to complain themselves.

Why it exists: to provide statutory, independent NHS complaints advocacy supporting people who want to make a formal complaint about the care and/or treatment they have received using the NHS Complaints Procedure. This can be about any aspect of NHS-funded healthcare.

The two stages of the NHS Complaints Procedure:

1. Local Resolution, where you raise your concerns with the NHS provider responsible for your care.

2. Parliamentary and Health Service Ombudsman (PHSO) who you can request to review your complaint if you are dissatisfied with the outcome of stage 1. Swan Advocacy can support you through each stage. We also have a ‘Self Help’ pack to guide your through the process if you feel able to deal with your own complaint.

What to expect?

– An investigation into the issues raised in your complaint.

– An explanation for when something has gone wrong.

– An apology where appropriate.

– An indication of the lessons the health provider has learned from the complaint and the steps taken to improve services for the future.

If you have a complaint about the NHS, you can download one of our Self-Help Toolkits that will guide you through the process, or contact us for guidance and information.

What the advocate can help with:

– Understanding and guiding you through the NHS complaints process. – Referring you to other agencies where appropriate.

– Letter writing: A complaint is more likely to be resolved quickly and successfully if it is expressed clearly. We can help you work out what you want to say and to help you draft letters

– Preparation for and attendance at Complaints Meetings.

– Referring cases to the Parliamentary and Health Service Ombudsman.

– Ensuring your views, feelings and concerns are listened to by the appropriate NHS body.

Throughout the complaints process we can provide as much or as little support as you need. We will never ‘take over’ your complaint, or communicate anything that you have not agreed to in advance. If you’d rather write your own letter, we are happy to talk you through this and discuss how best to get your points across. Or, you may welcome an advocate in a meeting with NHS professionals.

The advocate cannot:

– Investigate NHS complaints.

– Get involved in the legal process, but we can refer you to the relevant agency.

– Give opinions on medical matters or make decisions for you.

– Get an individual disciplined or struck off.

– Support you with complaints about privately funded treatment.

Time Limits Aim to make your complaint as soon as is practical. However, under the NHS Complaints Procedure, you have up to 12 months from the incident in question or from when you became aware of the issue to complain. If you are not able to complain within this time limit, it is possible to ask the NHS to use their discretion, but they are not obliged to investigate.

Generic Advocacy

What it is: Advocacy that is not required under the Care Act. This will include people from all groups, including carers and will be time-limited and issue-based.

Who it’s for: Disadvantaged or vulnerable adults aged 18 and over who:

– Find it difficult to get your views across to other people,

– Feel like people are making decisions about you without your input,

– Find it difficult to speak up as to how you feel during meetings,

– Are unhappy with a service or organisation and feel you need support to be able to make your voice heard or complain,

– Are having difficulty considering your options and making decisions because of difficult circumstances.

Why it exists: Generic Advocacy offers support for a variety of day-to-day difficulties. We work with individuals who may have difficulties being involved in decisions that affect them, such as those with learning difficulties, physical health problems, mental health problems, acquired brain injury and dementia. Advocates serve as independent professionals within care settings and ensure that your views are not overlooked.

The advocate may operate as a mediator between care providers and service users, representing individuals at important meetings or support the service users to represent themselves effectively by assisting them with agenda points, opening statements and probing questions.

What the advocate can help:

– Have your voice and views heard by others

– Gain access to relevant information, professional advice and guidance

– To consider options, make decision and act on information and advice

– To be afforded fair and equal treatment

– Liaise with doctors, nurses, social workers and anyone involved with your care and treatment

– Support you to make complaints