“Are Advocates doing their job or someone else's?” Peter Edwards Peter Edwards Law Ventura House Market Street Hoylake CH47 2AE 0151 632 6699 [email protected] October 2013 PETER EDWARDS • • • • • • • Director of Peter Edwards Law President Mental Health Lawyers Association Nominated Mental Health Lawyer of the Year Peter Edwards Law Training President of mental health charity; Imagine Teacher and Broadcaster Past Appointments: – – – – – – – – – Former Director IMHL Consultant to Solicitors Regulation Authority Legal Consultant WHO Member of World Federation Mental Health Human Rights Committee Law Society Chief Assessor MHRT Panel Member of Central Policy Committee of MHA Commission Member Mental Health and Disability Committee Member NACRO Advisory Committee Member of MIND Council of Management www.peteredwardslaw.com • • • • • • Three lawyers based in London (Catherine, Padma and Lina) Admin base in Merseyside North West team Welsh speaker for North Wales, Sarah Edwards Two based in Midlands (including a tribunal judge) MHT’s and Managers hearings – – – – Human Rights Treatment issues After care and 117 High Court challenges • Community Care Law • Right to assessment and services – Representing incapacitated clients • Mental Capacity Act • Court of Protection and EPA’s / LPA’s What is advocacy? • “Advocacy is taking action to help people say what they want, secure their rights, represent their interests and obtain the services they need.” What is advocacy? • Advocacy can help people to: – – – – Make clear their own views and wishes; Express and present their views effectively and faithfully; Obtain independent advice and accurate information; Negotiate and resolve of conflict. • Some people are unclear about their rights as citizens, or have difficulty in fully understanding these rights, others may find it hard to speak up for themselves. • Advocacy can enable people to take more responsibility and control for the decisions which affect their lives. • Advocacy promotes social inclusion, equality and supports early intervention. Advocacy services • There may be times when you need help to get things done, for example if you're having difficulty accessing benefits or services. • Advocacy represents your interests and helps you obtain the services you need. • An advocate is someone who argues your case for you and makes sure the correct procedures are followed. • Knowing where to find an advocate is useful if you’re a carer or someone who needs taking care of. • Advocacy services describe what they do in different ways, but their main role is to help you when you need it Are you an advocate or an advisor? Is there a difference? • Do advocates make a difference or do you make the system appear to be respecting rights • Does the service depend on which advocate / service provider • Is there a risk that your contract will not be renewed if you are too confrontational? • Are you insured? Be clear about your role Forms of support that are related to Advocacy • Advising – Advising may also include being given advice on the best course of action to take, but it stops short of the case working that typifies advocacy. • Information, signposting and referral – Signposting is where an organization gives a person details of another party who can help them, and referral is where an organsiation makes contact with another party with the person or on their behalf. – Information, signposting and referral may form part of the advocate’s role, but it is not primarily what advocacy focuses on. • Befriending – Although befriending and advocacy may overlap the roles differ. – The most important aim of advocacy is to help someone to speak out and participate fully in decisions made about their lives, not to provide an antidote to isolation. • Professional support – Services provided by professionals around health and social care have much in common with advocacy, especially where a professional makes a case on behalf of a client, or encourages the client to express their views. – There will be times when an independent advocate is required, for example when there is a potential conflict of interest, or where the professional lacks the time or the skills to follow up case work. • Interpreting – An interpreter’s sole responsibility is to relay information from one language to another, and not to advice, advocate or intervene in any way. Making decisions The IMCA service Helping people who are unable to make some decisions for themselves OPG606 The key principles of non-instructed advocacy • The client does not instruct the advocate. • The advocacy is independent and objective. • People who experience difficulties in communication have a right to be represented in decisions that affect their lives. • The advocate protects the principles underpinning ordinary living which assumes that every person has a right to a quality life. The main elements of IMCA work • Ascertaining views, feelings, wishes, beliefs and values • using whichever communication method is preferred by the client and ensuring that those views are communicated to, and considered by, the decision-maker. • Non-instructed advocacy. • Asking questions on behalf of the person and representing them. • Making sure that the person’s rights are upheld and that they are kept involved and at the centre of the decision-making process. • Investigating the circumstances. • Gathering and evaluating information from relevant professionals and people who know the person well. • Carrying out any necessary research pertaining to the decision. • Auditing the decision-making process. • Checking that the decision-maker is acting in accordance with the Act and that the decision is in the person’s best interests. • Challenging the decision if necessary. • Different types of advocacy: – Citizen Advocacy Short term, issue based or crisis advocacy Self Advocacy Peer Advocacy Bi-lingual Advocacy Health Advocacy Non-instructed advocacy IMCAs Legal Advocacy • Missing from their list – The NHS Complaints Advocacy Service (The Health and Social Care Act 2001 (s. 12) – IMHAs IMHA • The MHA1983 details the responsibilities and requirements of an IMHA service: • The IMHA must help the patient to obtain information about and to understand: – their rights under the Act; – the rights which other people (eg NRs) have in relation to them under the Act; – the particular parts of the Act which apply to them (e.g. the basis on which they are detained) and which therefore make them eligible for advocacy; – any conditions or restrictions to which he is subject by virtue of this Act; – what (if any) medical treatment is given to him or is proposed or discussed in his case; – why it is given, proposed or discussed; – the legal authority under which treatment is, or would be, given; and – the requirements of this Act which apply, or would apply, in connection with the giving of the treatment to him; – help in obtaining information about and understanding any rights which may be exercised under this Act by or in relation to him; and • The help which IMHA services must provide also includes helping patients to exercise their rights, which can include representing them and speaking on their behalf. • But IMHA services are not designed to take the place of advice from, or representation by, qualified legal professionals. • However there is nothing to prevent IMHAs accompanying patients to tribunals and hospital managers¡¦ hearings and speaking on their behalf. IMHAs will want to be able to understand and offer: • • • • • • • • • • • • Information about detention and SCTs Information about consent to treatment Information about seeking a review of detention or SCT Information about the Commission Information about withholding of correspondence (where applicable) Information about patient rights and how to exercise these which may include advocacy representation Information about NR and what their rights are within the Act in relation to the patient Information for informal hospital in-patients (many IMHA services will not be commissioned to work with informal patients but it is important their rights are understood) Information for those subject to guardianships Information about SOADs Awareness of the emergency applications of detention This list is not exhaustive. IMHA services will want to be familiar with: • The MCA Code of Practice (including the five principles of the Act and best interests checklist) • The assessment of capacity within the MCA • Deprivation of Liberty Safeguards (DoLS) Code of Practice • Interface between the Mental Health Act and Mental Capacity Act • The role of the Independent Mental Capacity Advocate (IMCA) IMHA services will therefore be required to have an understanding and practical working experience of noninstructed advocacy, which will include: • A non-instructed advocacy policy • An understanding of non instructed advocacy approaches • A referral process for clients unable to instruct themselves • Prioritisation policy that includes those less able to instruct an advocate • Information for third parties including professionals about non instructed advocacy IMHAs should be able to access training that supports them in their role which may include: • • • • • updates on relevant case law; aspects of community care law; non-instructed advocacy; working with children; safeguarding (including adults and children) as well as • refresher training on the MHA and MCA. • This list is not exhaustive. Role of the IMHA in First-tier Tribunal [Mental Health] Hearings - Practice Direction May 2011 • Grey areas in relation to the conduct of individual tribunal hearings are likely to arise occasionally. • These might include issues relating to the IMHA’s – (1) attendance at the hearing; – (2) seating arrangements; – (3) relationship with the legal representative; – (4) role in relation to any procedural issues; – (5) giving of evidence; – (6) asking questions and addressing the panel; and – (7) right of access to the tribunal’s decision. Procedural Issues • 5.1.5. In general, the role of the IMHA in relation to the conduct of the hearing would be that: – ensuring, if necessary, that the patient has understood the issues, and – assisting with the communication of the patient’s views to the tribunal. Asking Questions and Addressing the Panel • 6.3 In general, it is not the role of the IMHA to ask questions on the patient’s behalf or • address the panel when the patient has a legal representative whose role it is to do so. The challenges for the future for advocacy • Avoid being sucked in by an inadequate system • Avoid raising patient / client expectations – E.g. If legal advice required do you check and advise on eligibility criteria for legal aid? – http://www.justice.gov.uk/legal-aid/assess-your-clientseligibility/civil-eligibility/civil-eligibility-calculator • Avoid giving advice that you are not qualified to deliver • What else?