4.1.7 Independent Advocacy in Adult Social Care

Where a placement constitutes a deprivation of liberty, see also Deprivation of Liberty (DoLS)

An urgent placement may proceed before an IMCA is referred for but an IMCA must be instructed as soon as possible after the decision.

CMBC may refer for an IMCA where the person lacks relevant capacity and:

• CMBC is reviewing accommodation arrangements previously made by CMBC as part of a review of the person’s plan, and
• The person has no appropriate family member or friend who can be consulted.

Serious medical treatment

Relevant health professionals have a duty to refer for an IMCA for anyone who lacks capacity to make decisions about serious medical treatment where there is no appropriate person who can be consulted.

Where it appears that an IMCA has not been instructed, Council staff are expected to remind relevant health professionals that an IMCA is required where they are made aware.

Safeguarding

CMBC may refer for an IMCA where a person lacks relevant capacity and is a person alleged to have cause harm.

Deprivation of Liberty (DoLS)

Circumstances which amount to a Deprivation of Liberty were defined by the Supreme Court in the case of “Cheshire West” Cheshire West and Chester Council v P.

A person is deprived of their liberty if:

• they are under continuous supervision and control
• they are not free to leave, and
• they lack capacity to consent to these arrangements

CMBC is the Supervisory Body for the DoLS in Calderdale.

CMBC will refer for a section 39A IMCA when no standard authorisation is in place where:

• a request is made for standard authorisation, and
• there is no one to represent the person during the DoLS assessment process, or
• where there is disagreement between family/friends and so independent advocacy for the person is required

CMBC will refer for a paid Relevant Person’s Representative (RPR) where there is no family or friend to act in that role for the person, or where an eligible family member or friend does not wish to undertake the role.

When a standard authorisation is in place, CMBC will refer for:

• a section 39C IMCA to cover gaps between RPRs, for example if an RPR is no longer able to act as RPR and no other family member or friend can represent the person
• a section 39D IMCA to support either the Relevant Person or an unpaid RPR if requested by the Relevant Person or the RPR, or
• CMBC has reason to believe that either the Relevant Person or the RPR would benefit from the support of an IMCA.

For Calderdale residents placed outside of the borough, a referral will be made to the Provider in the first instance. Where the Provider is not able to accept the referral, it will be referred onwards to the local provider for that area.

Referrals for a paid RPR for someone placed in Calderdale by another local authority will be the responsibility of the placing authority.

18. Out of Area IMCA Referrals

The Mental Capacity Act Code of Practice states that the IMCA service to be instructed is the one which ‘works wherever the person is at the time that the person needs support and representation’ (10.12).

In line with the MCA Code of Practice, the Provider will provide IMCA for any eligible person within the Calderdale geographical boundary.

Where a Calderdale resident placed outside of the borough boundaries requires an IMCA, the local IMCA service where the person actually is, should be instructed. Each IMCA service will cover a Local Authority, or Local Health Board, area and all eligible people in that area, whether on a permanent or temporary basis, must be referred to the local IMCA service. For example, if a person is living in a care home in Bradford but CMBC are providing the funding for that placement and there is a need to refer the person to IMCA, the Bradford IMCA service will provide the service. As the responsibility to provide an IMCA rests with the local authority where the person is resident at the time, there should be no cost implications.

Where a 39D IMCA is required to support a person or their unpaid RPR, the referral should be made to the relevant IMCA service based on the location of the person who is the subject of the DoLS authorisation, not the location of the RPR.

19. Independent Mental Health Advocate (IMHA)

People detained under most sections of the Mental Health Act 1983 (MHA), subject to Guardianship, conditional discharge or on a community treatment order (CTO) have a statutory right to support from an Independent Mental Health Advocate (IMHA).

Independent Mental Health Advocacy (IMHA) will be provided by the Provider to all Calderdale residents detained under the Mental Health Act within Calderdale and Kirklees.

Where the Provider is unable to accept the referral due to capacity, a referral will be made to the appropriate local provider. Equally where the local provider is unable to support cases for non-Calderdale residents detained at the Dales Unit, the Provider will accept these referrals.

In most circumstances, a referral for an IMHA and non-statutory Mental Health Advocacy is made by the mental health trust. However, where no IMHA is already involved, CMBC will offer the support of an IMHA to anyone involved in Adult Social Care who is living in the community and is entitled to support from an IMHA.

The Provider will also provide generic mental health advocacy to Calderdale residents admitted on an informal basis to the inpatient psychiatric unit at the Dales hospital. This service will only be provided within the Calderdale Borough Boundaries until the point the person is discharged from inpatient services.

20. Continuity of Care

A person with care and support needs may decide to move home to be closer to family, or to pursue education or employment opportunities, or because they want to live in another area.

Continuity of care is the process local authorities must follow to ensure a person’s care and support continues, without disruption, during and after the move.

Where a person with needs for care and support in which an advocate is involved moves from one area to another, the same advocate will remain involved wherever practicable.

21. Commissioning Requirements for Independent Advocacy

CMBC will commission advocacy services which are independent of:

• CMBC, and
• Organisations to which CMBC has delegated responsibility for carrying out assessment, planning and review functions on behalf of CMBC.

CMBC will commission independent advocacy services which can demonstrate its advocates work in line with the Advocacy Charter.

22. Dissatisfaction / Complaints

CMBC requires independent advocacy services that it commissions to have a complaints process. Anyone who is dissatisfied with the services of an independent advocate should first raise their concern with the relevant advocacy service provider.

Where the complainant has exhausted all stages of the advocacy service provider’s complaints process and is not satisfied with the outcome of the complaint, the complainant may make a complaint to CMBC.

Any person who is dissatisfied with Council services, a Council decision and / or feels that they have been treated unjustly has the right to make a complaint to CMBC.

If the person is still not satisfied with the outcome of the complaint, the complaints team will provide them with contact details of the Local Government and Social Care Ombudsman. However, the ombudsman will only look at CMBC’s response, not at the providers handling of the complaint.

Any person who wishes to make a complaint to CMBC will be provided with information about how to do so.

23. Implementation

The requirements of this policy will be communicated to:

• staff in Adult Social Care, Safeguarding and Commissioning teams
• any person or organisation authorised to carry out assessment, support planning and / or review processes on behalf of CMBC, and
• any person or organisation commissioned by CMBC to provide independent advocacy services on behalf of CMBC.

24. Monitoring and review

This policy will be monitored through:

• manager / supervisor oversight of assessment, planning and safeguarding processes
• internal audit of adult social care records
• such processes as have been agreed with external persons or organisations authorised to carry out assessment, planning and review processes on behalf of CMBC
• routine contract management and monitoring activities by commissioners.

Appendix 1 – Definitions

Advocate – Advocates represent people’s wishes by supporting them to speak or by speaking up on their behalf. They are independent of CMBC.

Advocates help people to express their needs and make decisions about the options available to them.

They make sure that CMBC follows the correct procedures and can challenge decisions made by Councils and other organisations.

CMBC commissions four types of independent advocacy:

• Care Act Advocacy
• Mental Capacity Advocacy
• Mental Health Advocacy
• Health Complaints Advocacy

Appropriate person –  In the context of this policy, an ‘appropriate person’ is someone who:

• is willing to act an informal representative for someone likely to have substantial difficulty in being involved in Adult Social Care processes and
• CMBC agrees is appropriate to do so.

The ‘appropriate person’ needs to be able to understand Adult Social Care processes when explained to them, know the person who needs support well and be able to set aside their own views.

CMBC has to agree that someone (usually a family member or friend) can act as the ‘appropriate person’.

Assessment – An assessment is how CMBC works out what someone’s social care needs are. It is a conversation between CMBC and the person (and sometimes other people who know them well or their representative).

The assessment looks at how people manage everyday activities such as looking after themselves, household tasks and getting out and about.

Unpaid carers can have a carer’s assessment of their own needs, separate from the needs of the person they care for. Carer assessments look at what might help the carer’s health or managing other aspects of their lives.

Best interests decision –  If someone cannot make a particular decision for themselves (for example about their health or their finances), CMBC will make a decision based on what is in the person’s best interests.

If the person has a registered Lasting Power of Attorney/Court Appointed Deputy (for the relevant decision), they would be the decision-maker not CMBC.

The law does not define what ‘best interests’ are but sets out what has to be taken into account when deciding what is best for someone.

This includes the person’s wishes and feelings, what is important to them, what close family members and friends think the person would want, and all the person’s circumstances.

Care Act Advocate – local authorities have a duty under the Care Act 2014 to involve people in decisions about their care and support needs.

There is a duty to arrange an independent Care Act Advocate for anyone who has no ‘appropriate person’ to act as their informal representative if they are likely to have ‘substantial difficulty’ in being involved in:

• their assessment
• making or revising their plan
• a safeguarding enquiry or a Safeguarding Adults Review

Independent Care Act Advocates support:

• adults who need care and support
• carers
• young people under 18 including young carers who are moving to Adult Social Care (often called transition).

Carer / young carer – Carer: Somebody, of any age, who provides support or who looks after a family member, partner or friend who needs help because of frailty, physical or mental illness, or disability. This would not usually include someone paid or employed to carry out that role, or someone who is a volunteer.

Young Carer: someone aged 18 or under who helps look after a relative with a disability, illness, mental health condition, or drug or alcohol problem. This includes a sibling with a disability or mental health condition.

Commissioning – Commissioning is how CMBC plans services for people who live in Calderdale. It doesn’t always mean paying for services but making sure that services people need are available in Calderdale.

Consent – Consent is a freely given and informed decision to agree to an act taking place. This is usually given by the person concerned but it may be given by another person:

• where they are authorised to provide consent for an adult who lacks capacity (such as LPA, Deputyship, Court Order).
• with parental responsibility for a child or young person, where the young person (over 16) lacks capacity for that decision.

Deprivation of liberty Safeguards – A person is deprived of their liberty if:

• they are under continuous supervision and control
• they are not free to leave, and
• they lack capacity to consent to these arrangements

In Calderdale, where the person is in a care home or hospital, the deprivation of liberty must be authorised by CMBC (the Supervisory Body). A standard DoLS authorisation is only granted when all six qualifying assessments are met so that people are not arbitrarily detained (see Deprivation of Liberty Safeguards policy for further details).

Where the person is deprived of their liberty in the community, such as at home, a supported living placement or Shared Lives arrangement, it can only be authorised by the Court of Protection.

Independent Mental Capacity advocate (IMCA) – This is a person who supports and represents someone who lacks capacity to make a specific decision, where that person has no one else who can support them (exception for Safeguarding situations). They make sure that where significant decisions for a person who lacks capacity are made, that the person has independent representation.

Local authorities have a duty to appoint an IMCA when decisions have to made about:

• Long term accommodation
• Serious medical treatment
• Safeguarding
• Deprivation of Liberty Safeguards (DoLS)

Independent Mental Health Advocate – An IMHA is an advocate specially trained to help people know their rights under the Mental Health Act 1983 (MHA) and help (IMHA) them while they are detained or under a section of the MHA. IMHA listen to what people want and speak for them.

People have a legal right to have an IMHA if they are:

• detained in hospital under a section of the MHA. In England, people cannot have an IMHA if they are under sections 4, 5, 135 and 136 of the MHA;
• liable to be detained under Mental Heath Act 1983, even if not actually detained, including those who are currently on leave of absence from hospital or absent without leave, or those for whom an application or court order for admission has been completed;
• under MHA guardianship, conditional discharge and community treatment orders (CTOs);
• an informal/voluntary patient and certain treatments, including neurosurgery are being considered.

In Calderdale:

IMHAs are usually referred for by Mental Health professionals but may occasionally be referred for by Adult Social Care staff for people living in the community who qualify for an IMHA.

Mental Capacity – A person’s ability to make a specific decision at a specific time.

A person may lack capacity because of a wide range of conditions including dementia, a learning disability, mental health problems, a brain injury or stroke.

Just because a person has a diagnosis does not mean they lack capacity to make a particular decision. A lack of capacity can be temporary, for example when someone has been in an accident and is unconscious.

A legal definition is contained in Section 2 of the Mental Capacity Act 2005.

Plan – A written plan is agreed after CMBC has made an eligibility decision and has agreed to meet needs. The plan shows how the person wants their needs to be met.

The plan may be known as a care plan or a care and support plan.

Plans are reviewed regularly in case needs have changed. If they have, needs will be re-assessed and the plan revised.

Relevant Person’s Representative (RPR) – When a DoLS standard authorisation is granted, a RPR must be appointed to represent and support the person (usually a family member or friend). The person can recommend their own RPR if they have the capacity to do so.

An RPR must be:

• 18 years of age or over;
• able to keep in contact with the relevant person;
• willing to be the relevant person’s representative;
• not financially interested in the relevant person’s managing authority;
• not a relative of a person who is financially interested in the managing authority;
• not employed by, or providing services to, the relevant person’s managing authority, where the relevant person’s managing authority is a care home;
• not employed to work in the relevant person’s managing authority in a role that is, or could be, related to the relevant person’s case, where the relevant person’s managing authority is a hospital; and
• not employed to work in the supervisory body that is appointing the representative in a role that is, or could be, related to the relevant person’s case.

Safeguarding – Safeguarding adults is about keeping adults with care and support needs who may be at risk safe from abuse, neglect or being exploited, and ensuring that people deemed to be ‘unsuitable’ do not work with them.

CMBC investigates if it receives information which suggests that someone is being abused, neglected or at risk. A protection plan is put in place if abuse is happening.

CMBC works with other organisations to protect adults with care and support needs from abuse and neglect through the Calderdale Safeguarding Adults Board.

Section 39A Independent Mental Capacity Advocate (IMCA) – The 39A IMCA role is to represent the person in relation to a DoLS assessment.

They may only be instructed when a standard authorisation is not in place. There are two possibilities:

• A request has been made for a standard authorisation.
• A best interests assessor has been appointed by the supervisory body to check whether a person is being unlawfully deprived of their liberty.

In both cases the person should have no one appropriate to consult.

Section 39C Independent Mental Capacity Advocate (IMCA) –  The 39C IMCA role can be understood as covering gaps in the appointments of relevant person’s representatives. The role ends when another relevant person’s representative is appointed.

Section 39 D Independent Mental Capacity Advocate (IMCA) – 39D IMCAs are only available when a DoLS standard authorisation is in place and the person has an unpaid relevant person’s representative.

Where a person has an unpaid representative, a 39D IMCA must be instructed if:

• The Relevant Person asks the supervisory body for the support of a 39D IMCA.
• Their representative asks the supervisory body for the support of a 39D IMCA.
• The supervisory body believes that the Relevant Person or their representative would benefit from the support of a 39D IMCA.

Standard Authorisation – When the supervisory body grants authorisation to deprive a relevant person of their liberty in the relevant hospital or care home, after completion of the statutory assessment process.

Substantial difficulty – By ‘substantial difficulty’, we mean when someone is likely to have problems with one or more of these:

• understanding information about social care decisions
• remembering information
• using the information to be involved in the decisions
• being able to tell other people their views, wishes and feelings

Transition – is when young people with health or social care needs move from children’s services to adult services.

Transition needs to be carefully planned so that there are no gaps in the care young people receive. Young people and their families should be fully involved in the process of planning what support a young person will need when they turn 18.

Carers may need support too. Young carers caring for adults may become eligible for support under the Care Act when the young carer turns 18.