Independent advocacy
Care Act 2014
Outline of content
 Introduction
 What independent advocacy under the Care Act 2014?
 Interface with the Mental Capacity Act 2005
 When the Care Act independent advocacy duties apply
 Summary
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Supporting a person’s involvement
Might this
person have
difficulty in
being
involved?
Do they still
have
‘substantial
difficulty’ in
being
involved?
Yes
Can they be better
supported to
enable their
involvement?

Yes
Provide
support and
make
adjustments
Yes
Agree
‘appropriate
individual’
No
Duty to
arrange for
independent
advocate
[Reasonable
adjustments under the
Equality Act 2010]
Yes
Is there an
‘appropriate
individual’ – a
carer, friend or
relative – that can
facilitate their
involvement?


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Judging ‘substantial difficulty’ in
being involved
Understanding
relevant
information
Retaining
information
Using or
weighing up the
information
Communicating
their views,
wishes and
feelings
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An ‘appropriate individual’ to
facilitate the person’s involvement
Considerations
Must
Must NOT
• Who is
appropriate to
support and
represent the
person?
• Be able to
facilitate the
individual’s active
involvement with
the process
• Be someone who
is already
providing care or
treatment
professionally or
paid
• Is a family
member or friend
an appropriate
individual?
• The person who
is supported must
agree to the
suggested
‘appropriate
individual’
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Independent advocacy under the
Care Act
Role
• Support and represent
• Facilitate involvement
When?
• Substantial difficulty
• No one appropriate is
available
Who for?
• Adults
• Carers
• Children in transition
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The role of an independent
advocate under the Care Act
 Advocates should represent the individual, always with regard to their
wellbeing and interests, including helping a person to:
 Understand the process
 Communicate their wishes, views and feelings
 Make decisions and challenge those made by the authority
 Challenge a decision made by the local authority
 Understand their rights
 Support and represent them in the safeguarding process
 Look at records and to talk to those who can help
 Consult both the records and the family and others if the person does
not have capacity
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Representation
Advocate has
concerns
Must write a
report outlining
their concerns
Local authority
should convene a
meeting and
provide a written
response
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Who can act as an independent
advocate under the Care Act?
 Independent advocates must have:
 a suitable level of experience
 appropriate training
 competency in the task
 integrity and good character
 the ability to work independently of the authority
 arrangements for regular supervision
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Mental Capacity Act (MCA) 2005
 All relevant people involved in the key care and support planning
processes, and all independent advocates, are expected to understand
and apply the Mental Capacity Act
 They must be able to:
 evidence that they are using the MCA principles
 understand supported decision making; and the importance of
considering least restrictive interventions
 understand how capacity assessments are made; how best
interests decisions are made, and what a deprivation of liberty is
 They are expected to have some knowledge of relevant case law and
key messages from the Court of Protection
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Independent Mental Capacity
Advocates (IMCA)
 The Mental Capacity Act gives some people who lack capacity to make
a specific decision a right to receive support from an Independent
Mental Capacity Advocate (IMCA)
 IMCA services are provided by organisations that are independent from
the NHS and local authorities
 An IMCA safeguards the rights of people who are facing a decision
about change in long-term accommodation, and serious medical
treatment decisions, and lack capacity to make a specified decision (at
the time it needs to be made), and have nobody else who is willing and
able to represent them or be consulted
 IMCAs must have: specific experience; IMCA training; integrity and a
good character; and be able to act independently
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Interface with the Mental Capacity
Act
 There are similarities with the MCA, but the duty to provide independent
advocacy under the Care Act is broader and applies to a wider set of
circumstances e.g. it provides support both to people who have
capacity but who have substantial difficulty in being involved and to
those who lack capacity
 The local authority must meet its duties in relation to working with an
Independent Mental Capacity Advocate and those in relation to an
independent advocate under the Care Act
 The same advocate can provide support as an independent advocate
under the Care Act and under the Mental Capacity Act, if trained and
qualified to do both
 There are many advantages of having one independent advocate, or
one organisation, providing both services
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When the Care Act independent
advocacy duties apply
 From the first point of contact, and at any subsequent stage of the
assessment, the identification of a potential need for independent
advocacy may arise from the person themselves, carers or family or
others
 Consideration of whether a person has substantial difficulty in
involvement applies throughout any subsequent part of the care and
support planning and review processes
 The local authority must consider whether there is anyone appropriate
who can facilitate the person’s involvement, and if not, arrange for an
independent advocate
 There is also a separate duty to arrange an independent advocate for
adults who are subject to a safeguarding enquiry or safeguarding adults
review
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Providing an independent advocate
where there is an appropriate person
 There are times when an independent advocate should be provided
even where the person has family or others involved. These are:
 when it is suspected that the family member or other person is
abusing the adult
 when a placement is being considered in NHS-funded provision
and the local authority believes that it would be in the best interests
of the individual to arrange an independent advocate
 where there is a disagreement between the local authority and the
person who would facilitate the individual’s involvement, and they
both agree that an independent advocate would be beneficial to the
individual
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Summary
 The local authority must involve the individual in the key care and
support processes of assessment, care and support planning and
review, or safeguarding
 If the individual has substantial difficulty being involved, and there is
no one appropriate to support them, the authority must provide an
independent advocate
 Independent advocates support and represent individuals to be
involved as fully as possible
 This widens the use of independent advocacy beyond current Mental
Capacity Act considerations, and will apply to people who have
‘capacity’ and to those who are judged to ‘lack capacity’
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