This chapter was introduced in May 2016.
The Care Act 2014 confers the right to an independent advocate to facilitate the involvement of a person in their assessment, in the preparation of their care and support plan and in the review of their care and support plan if two conditions are met:
- The person has substantial difficulty in being fully involved in these processes and
- There is no one appropriate available to help them.
The person is also entitled to the support of an advocate to help them make use of advice and information or to make a complaint (see Complaints).
This right is substantially different to the right to an Independent Mental Capacity Advocate (IMCA) conferred by the Mental Capacity Act 2005 or an Independent Mental Health Advocate (IMHA) conferred by the Mental Health Act 1983 and should not be confused with either.
The customer may feel they would benefit from the services of an independent advocate in other areas of their life, but the local authority is only required to fund one in the circumstances described above. Any agreement to fund further advocacy would depend on the individual’s particular circumstances and would be the exception rather than the rule.
2. The Role of an Independent Advocate
The role of the independent advocate is to support and represent the customer and to facilitate their involvement in the key processes and interactions with the local authority. The ultimate aim is for the customer’s wishes, feelings and needs to be at the heart of the assessment, care planning and review processes.
3. When and for whom an Advocate must be Appointed
The worker should use their professional skills to give all practicable support to the customer to enable him / her to participate in the assessment, support planning and review process before concluding that the customer is experiencing substantial difficulty.
A customer experiences substantial difficulty if s/he cannot carry out a task even with support, or if doing so causes significant distress, anxiety or pain. The Act defines four areas where substantial difficulty in engaging with the care and support process may be found:
- Understanding relevant information;
- Retaining information;
- Using or weighing the information as part of engaging;
- Communicating their views, wishes or feelings.
The customer may have a friend or family member to support and represent them and this should be encouraged unless it appears that the representative is putting forward his or her views and not those of the customer. In the interests of promoting independence and self-reliance, the customer should be encouraged to make use of their existing support networks wherever possible and only if there is no one available who is suitable, willing and able to support and represent the customer should an independent advocate be considered.
A customer who needs the support of an advocate is entitled to have one appointed to help them to engage with any part of the care and support process but the decision about the need for advocacy is time specific; that is the person may need the support of an advocate at some times and not others. For example, a customer at the point of contact may be experiencing such a high degree of distress and anxiety about their condition and circumstances that it renders them unable to fully participate in the assessment and support planning process and leaving them in need of an independent advocate. By the time of the first review, their distress and anxiety may have lessened to the point that they are able to participate, meaning they no longer need an advocate. The need for advocacy should be reviewed as part of the usual process of reviewing the care and support plan.
4. Independent Advocacy and other forms of Representation
A customer who is entitled to the support of an independent advocate may also be entitled to the support of an IMCA, an IMHA or an interpreter. These roles are all very different and have different criteria governing their use, but if the customer wants the same person to fulfil multiple roles, then subject to qualification, this is perfectly acceptable.
5. Funding for Advocacy
If someone is likely to need an advocate for the foreseeable future, the funding for this should be identified and agreed as part of the personal budget setting process. If someone needs an independent advocate to support and represent them in the assessment and support planning processes, it is unlikely they would have a personal budget at that point; an application for funding for advocacy must be made to the Team Manager.