Are Advocates doing their job - or someone else`s?

“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
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
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
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
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
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
Legal Advocacy
• Missing from their list
– The NHS Complaints Advocacy Service (The Health
and Social Care Act 2001 (s. 12)
• 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
• 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
• 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
• A referral process for clients unable to instruct
• 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
• 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?
• Avoid giving advice that you are not qualified to
• What else?

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