CHAPTER THREE INDEPENDENT ADVOCACY
Background
Section 259(4) of the Act defines 'advocacy services' as services of support and representation for the purpose of enabling the person to whom they are available to have as much control of, or capacity to influence, their care and welfare as is in the circumstances appropriate.
Independent advocacy supports a person's right to have their own voice heard in decisions made about their health and well-being. The Millan Committee noted in its support for the availability of independent advocacy services that any person can benefit from advocacy if, for whatever reason, they find it difficult to put their own case to service providers or do not feel in a strong position to exercise or defend their rights. It is particularly helpful for people who are at risk of being mistreated or ignored, or who wish to negotiate a change in their care, or are facing a period of crisis. Advocacy can be used by people with physical or mental disorders, or by people who simply feel overwhelmed and confused by institutions and care, or by their carers. It can be difficult, for a number of reasons, for service users to speak up for themselves. Advocacy can give a route by which this may be achieved.
Section 259 of the Act states that every person with a mental disorder shall have a right of access to independent advocacy. It places a duty on NHS Boards and local authorities in collaboration to secure the availability of independent advocacy services within their relevant Boards or authority.
The State Hospitals Board for Scotland has a duty to ensure advocacy services for those detained in the State Hospital. However, in the case of a State Hospital patient who is granted a conditional discharge or for whom a compulsory treatment order has been suspended, the State Hospital is required to collaborate with the local authority and NHS Board for the area in which the former patient is now residing.
Independent advocacy organisations may provide individual or group advocacy. The Act is not specific about the type or types of independent advocacy services to which a patient should have a right of access. Any or all of the various types might be appropriate depending on the circumstances and personal preferences of the service user/patient concerned.
Our consultation indicated strong support for the availability of independent advocacy with very few respondents questioning its usefulness when properly provided. However, some concerns were reported.
Problems Identified
Our consultation highlighted the following:
- There was very strong support for the provision of high quality independent advocacy services to all.
- There is patchy availability of advocacy services in some areas.
- Many felt that advocacy services are having to be prioritised for people subject to compulsory powers to the detriment of those who are not.
- There is confusion around the role and function of independent advocacy services in relation to other relevant parties who may be representing the service user/patient. We address this in our section on mental health tribunals.
- Some concerns were voiced about a minority of advocates pursuing their own agenda rather that focussing on their clients' wishes.
- It is not clear how to make a complaint about an advocate.
- Particular difficulties in the provision of appropriate advocacy services were noted in relation to children and young people, people with a mental disorder who are in prison, people with dementia, people affected by learning disabilities, deaf, deafened and partially hearing people, and for service users from the black and minority ethnic communities.
- Collective advocacy is well developed in some areas but is non existent in others.
Discussion
The strong message we heard throughout our consultation was that independent advocacy is essential and that its availability should be improved, not just geographically but also to people with specific needs.
Advocacy is now part of the fabric of mental health and learning disability care in Scotland and we believe that should be celebrated and seen as an indication that the principles of the Act are being given due regard. However, given that the role of advocates includes challenging and questioning proposals and decisions made by professional staff, there is likely, at times, to be a degree of tension between those advocates and the staff providing care.
Notwithstanding the strength of support, there is still a degree of uncertainty amongst some staff about the legitimate role of independent advocates and a suspicion that, at times, advocates may be promoting their own views rather that those of their advocacy partners. Associated with this was a lack of clarity about what to do if staff believed that an advocate was not acting in the best interests of a client. While it appeared to us that a small minority of staff voiced these concerns, it is still vital that they are addressed, to ensure that the perception of the positive contribution of independent advocacy is not eroded.
During our consultation process, the Scottish Advocacy Independent Alliance published Principles and Standards for Independent Advocates and a Code of Practice for Independent Advocacy. These excellent documents address many of the issues highlighted by our consultation and we believe that their implementation and application would address some of the concerns we identified.
The Review Group was impressed by the role of collective advocacy where groups of users come together to give common voice to their concerns and experiences. By speaking out on behalf of their community, such groups can act as powerful protectors of civil rights and can promote social justice. By gaining information on all the issues that affect their members, they are in a good position to comment on the working, and the delivery, of the principles of the Act and by so doing they can ensure that they reflect the needs of users and is sensitive to their lives.
There is a strong argument that by promoting their members' confidence, self esteem and empowerment they make it less likely that people will be subject to compulsory powers. In addition, by acting on issues that encourage a voice, challenge stigma, promote inclusion, a rights based approach and person centred ways of working, they reduce the isolation and alienation people feel and promote better practice in the operation of the services that implement the Act.
Recommendations
3.1 The Government should, by whatever means it sees fit, ensure that there is appropriate provision, with associated funding, across Scotland, of independent advocacy services by NHS Boards and local authorities to ensure that the requirements of s259 of the Act are complied with in relation to all persons affected by mental disorder regardless of where they are and taking into account their specific needs.
3.2 The Mental Welfare Commission requested that service users or those with an interest in a case be empowered to report to the Commission failures to provide adequate access to advocacy services. Such failures should be raised in the first instance with the authorities statutorily obliged to provide the services.
3.3 Independent advocacy organisations should aim to work in accordance with the Scottish Independent Advocacy Alliance Principles and Standards and Code of Practice.
3.4 Carers' access to advocacy services should be ensured.
3.5 The appropriate scrutiny processes and bodies should promote and monitor the application of the Scottish Independent Advocacy Alliance Principles and Standards and Code of Practice.
3.6 NHS Boards and local authorities should support the development of collective advocacy groups in their respective areas.