Independent Advocacy

Having substantial difficulty is not the same as lacking mental capacity.

See: The Care Act 2014, Determining Substantial Difficulty for information about how to determine substantial difficulty.

See the Mental Capacity Act 2005 Resource and Practice Toolkit, with guidance about assessing capacity and making best interest decisions.

An appropriate person for general representation purposes is not the same as an appropriate person for independent advocacy under the Care Act.

See: The Care Act 2014, An Appropriate Other Person for information about the difference and how to establish whether there is already an appropriate person.

A person can act as an appropriate person if:

1. They are not engaged in providing care or treatment for the adult at risk (in either a professional or paid capacity);
2. They are not implicated in the safeguarding adults concern;
3. The adult at risk has capacity and is able to consent to being represented and supported by them;
4. The adult at risk lacks capacity to consent, but the Local Authority is satisfied that being represented and supported by the person wishing to do so would be in their best interests;
5. They have demonstrated that they have adequate direct contact with the adult in order to represent and support them effectively;
6. They haves demonstrated adequate knowledge of safeguarding processes;
7. They have demonstrated they are able to act independently from the Local Authority;
8. They are not employed by or involved with the Local Authority in any way;
9. There is no conflict of interest or dispute between the adult at risk and the person wishing to represent them; and
10. Where the adult at risk lacks capacity there is no conflict of interest or dispute between the person wishing to represent them and the Local Authority about what is best for the adult at risk.

Note: The Local Authority has the final decision about whether someone is appropriate.

Note: It is not sufficient for a person wanting to support and represent an adult under the s68 of the Care Act to know them well or love them deeply. They must demonstrate that they are able to support the person to be actively involved with safeguarding adults' process.

The role of an independent advocate appointed under the Care Act is not the same as the role of a general advocate or any other type of advocate (for example an Independent Mental Capacity Advocate or an Independent Mental Health Advocate).

An independent advocate appointed under the Care Act must both facilitate and maximise the involvement of the adult with substantial difficulty in the safeguarding process that is taking place.

For information about the ways in which an independent advocate should fulfil their role, see: The Care Act 2014, The Role of an Independent Advocate.

Adults who lack capacity will likely be legally entitled to advocacy under both the Care Act and the Mental Capacity Act 2005.

The Care Act statutory guidance recognises that it would not normally be appropriate or practical for an adult to have 2 advocates and gives the local authority the responsibility to make a decision about the best type of advocacy support.

There are various factors that should influence this decision (such as existing rapport with an advocate or whether any important decisions are likely to be the outcome of the safeguarding process) and the local authority must ensure that whatever it decides, it does not deny the adult any of the specialist advocacy skills they need or are entitled to.

Adults eligible for an Independent Mental Health Advocate (IMHA) under the Mental Health Act 1983 will likely be entitled to advocacy under the Care Act.

The Care Act statutory guidance recognises that it would not normally be appropriate or practical for an adult to have 2 advocates and gives the local authority the responsibility to make a decision about the best type of advocacy support.

There are various factors that should influence this decision (such as existing rapport with an advocate or the likely outcome of the safeguarding process) and the local authority must ensure that whatever it decides, it does not deny the adult any of the specialist advocacy skills they need or are entitled to.

The advocacy referral can be made at any time and should be made without delay as soon as the duty applies.

Advocacy referrals should be made in line with local processes and requirements.

Regardless of whether or not independent advocacy is available in the local area the duty to provide it still applies. A failure to do so is a breach of this duty and of the law. It is the role of commissioners to ensure that advocacy services are in place and available when required, and it is the role of practitioners to make timely referrals to advocates to prevent unnecessary delays in the meeting of its duty.

If you are aware that advocacy support is required and is not yet available, urgent interim measures during planning discussions/meetings may need to be agreed without an advocate in place in order to reduce immediate risk to the adult from inaction. However, you must not proceed to close the case, or make long term or irreversible decisions until it is in place.

The duty upon the local authority is to make independent advocacy support available to any adult who requires it. Once made available the duty is met.

If an adult decides that they do not wish to engage in the advocacy support that has been made available to them they do not have to do so, but the local authority must still provide it.

The local authority is expected under the Care Act to support the adult to understand the role of an advocate and promote its benefit to them so as to reduce the likelihood that they will not engage.