4.1.7 Independent Care Act Advocacy

Audio & Quick Read Summary

1. Introduction

This policy sets out how Lancashire County Council will meet its statutory duties in relation to the provision of independent advocacy under the Care Act 2014.

2. Policy Aim

This policy aims to enable adults who have ‘substantial difficulty’ in being involved in their assessment and support planning to be supported in that involvement as fully as possible.

3. The Legal Framework

The Care Act 2014 places a duty on Lancashire County Council to arrange an independent advocate for all applicable adults.  The duty applies equally to adults with care and support needs and carers with support needs.  It also applies to children who are approaching the transition to adult care and support, when a child’s needs assessment is carried out, and when a young carer’s assessment is undertaken.

There is also a separate duty to arrange an independent advocate for adults who are subject to a safeguarding enquiry or Safeguarding Adults Review (SAR).

Lancashire County Council must arrange an independent advocate to facilitate the involvement of an adult in their assessment, in the preparation of their care and support plan and in the review of their care plan, as well as in safeguarding enquiries and SARs if two conditions are met:

• if an independent advocate were not provided then the person would have substantial difficulty in being fully involved in these processes, and.
• there is no appropriate individual available and willing to support and represent the person’s wishes who is not paid or professionally engaged in providing care or treatment to the person or their carer.

The role of the independent advocate is to support and represent the person and their views (where the person is unable to do so effectively) and to facilitate their involvement in the key processes and interactions with Lancashire County Council.

Once an adult has contacted Lancashire County Council, or come to its attention as a result of a safeguarding concern, they must be actively involved in identifying their needs through assessment, in developing their care and support plan, and in leading their care reviews, where relevant, and being involved in any safeguarding enquiry or Safeguarding Adults Review (SAR).

The aim of the Care Act duty to provide advocacy is to enable people who have ‘substantial difficulty’ in being involved in these processes to be supported in that involvement as fully as possible, and where necessary to be represented by an advocate who speaks on their behalf.

The Equality Act 2010 requires that reasonable adjustments should be made to ensure that disabled people have equal access to information and advice services.  The provision of reasonable adjustments, for example information in different formats, may reduce or remove a substantial difficulty a person may have in being involved.  The ultimate aim is for people’s wishes, feelings and needs to be at the heart of the assessment, care planning and review processes.  This needs to be just as true for those who are the subject of a safeguarding enquiry or safeguarding adult review (SAR).

Lancashire County Council must involve people in decisions made about them and their care and support or where there is to be a safeguarding enquiry or SAR.  Involvement requires Lancashire County Council to help people to understand how they can be involved, how they can contribute and take part and sometimes lead or direct the process.

People should be active partners in the key care and support processes of assessment, care and support planning, review and any enquiries in relation to abuse or neglect.  No matter how complex a person’s needs, Lancashire County Council are required to involve people, to help them express their wishes and feelings, to support them to weigh up options, and to make their own decisions.

The duty to involve applies in all settings, including for those people living in the community, in care homes or, prisons.  However, the Section 68 duty for advocacy in relation to a safeguarding enquiry and SAR would not apply to prisoners.

Lancashire County Council must form a judgment about whether a person has substantial difficulty in being involved with these processes.  If it is thought that they do, and that there is no appropriate individual to support and represent them for the purpose of facilitating their involvement, then Lancashire County Council must arrange for an independent advocate to support and represent the person.

Many of the people who qualify for advocacy under the Care Act 2014 will also qualify for advocacy under the Mental Capacity Act 2005.  The same advocate can provide support as an advocate under the Care Act and under the Mental Capacity Act.  This is to enable the person to receive seamless advocacy and not to have to repeat their story to different advocates.  Under whichever legislation the advocate providing support is acting, they should meet the appropriate requirements for an advocate under that legislation. See Independent Mental Capacity and Mental Health Advocacy policy.

4. Principles

4.1 Judging substantial difficulty

The Care Act 2014 defines four areas where people may experience substantial difficulty.

These are:

• understanding relevant information
• retaining information
• using or weighing information
• communicating their views, wishes and feelings.

If an individual is unable to do one or more of these areas, they would be considered to have substantial difficulty.

4.2 Who is an appropriate individual?

Lancashire County Council must consider whether there is an appropriate individual who can facilitate your involvement.  The Care Act 2014 states that an appropriate individual cannot be someone who:

• is already providing care or treatment to you in a professional capacity or on a paid basis.
• you do not want to support you.
• is unlikely to be able to, or available to, adequately support your involvement.
• is implicated in an enquiry into abuse or neglect or who has been judged by a safeguarding adult review to have failed to prevent abuse or neglect.

The role of an ‘appropriate individual’ under the Care Act is potentially fuller and more demanding than that of an individual with whom it is ‘appropriate to consult’ under the Mental Capacity Act (MCA).  Under the Care Act, the appropriate individual’s role is to facilitate your involvement, not to consult you and then make best interests decisions on your behalf.

It may not be clear at the point of first contact, or at an early stage of the assessment, whether there is someone appropriate to assist you in engaging.  As a result, an advocate may be appointed only for it to be discovered later that there is an appropriate person available.  The appointed advocate can at that stage ‘hand over’ to the appropriate individual.  Alternatively, Lancashire County Council may agree with you, the appropriate individual and the advocate that it would be beneficial for the advocate to continue their role, although this is not a specific requirement under the Care Act.  Equally, it is possible that Lancashire County Council will consider someone appropriate who may then turn out to have difficulties in supporting you to be involved in the process.  At that point arrangements for an independent advocate must be made.

Exceptions

There are times when an independent advocate should be provided for you if you have substantial difficulty even though you have an appropriate individual to support you.  These include:

• where a placement is being considered in NHS-funded provision in either a hospital (for a period exceeding four weeks) or in a care home (for a period of eight weeks or more), and it would be in your best interests to arrange an advocate.
• where there is a disagreement between Lancashire County Council and the appropriate person whose role it would be to facilitate your involvement, and Lancashire County Council and the appropriate person agree that the involvement of an independent advocate would be beneficial to you.

5. Lancashire County Council Responsibility to Provide Independent Care Act Advocacy

5.1 Referral process for Independent Care Act Advocacy

Lancashire County Council will ensure from initial contact and throughout interactions with you or your carer, that you are enabled to be fully involved in processes. Lancashire County Council will ensure that any reasonable adjustments as per the Equality Act 2010 are made to enable you or your carer to be fully involved in processes.

Following these reasonable adjustments, Lancashire County Council will judge if you or your carer continues to have substantial difficulty with the various stages of social care processes. These include:

• a needs assessment.
• a carer’s assessment.
• the preparation of a care and support or support plan.
• a review of a care and support or support plan.
• a child’s needs assessment.
• a child’s carer’s assessment.
• a young carer’s assessment.
• a safeguarding enquiry.
• a safeguarding adult review.

If you do not have an appropriate individual to assist you, as per the Care Act Duty, Lancashire County Council will advise you that they must refer you for an independent advocate to be appointed to offer this assistance.

At each step of the process, it is important that decisions and any action taken are recorded.  The first step for Lancashire County Council will be to make a judgement on whether you have ‘substantial difficulty’ engaging with the process.

If the answer to the statement is yes, then consideration needs to be given to any possible reasonable adjustment under the Equality Act 2010, i.e. provision of interpreter.

Once reasonable adjustments have been made, Lancashire County Council will make a judgement whether you continue to have substantial difficulty engaging with the process they.

If the answer to the statement is ‘yes’, then Lancashire County Council will need to consider if you have an ‘appropriate person’ that can facilitate your involvement.

If there is an ‘appropriate person’, Lancashire County Council will involve them. There is no requirement for an independent advocate in these circumstances unless there are ‘exceptional circumstances’ (see Section 3, Principles).

If there is no ‘appropriate person’, Lancashire County Council will advise you of its duty to refer you to an independent advocate. The advantages of an independent advocate will be explained to ensure you fully understand your rights and options under the Care Act.  In this case, Lancashire County Council will refer you to the advocacy service.

If after 10 working days following the referral, Lancashire County Council has not had contact from advocacy service, further contact will be made so as to not delay matters.

If you refuse to engage with the independent advocate, Lancashire County Council will review this with you. Consideration should be given regarding a joint visit with the independent advocate again, to explain their role and the advantages of the service they provide.

If you continue to refuse to engage with the independent advocate, the assessment, care and support planning etc. would need to continue.

5.2 How to refer

To access an Independent Advocate in the Lancashire County Council area, contact:

Advocacy Focus

1st Floor. The Old Tannery, Eastgate, Accrington, Lancashire, BB5 6PW.

Telephone: 0300 323 0965

Email: [email protected]

6. Further Reading

6.1 Relevant chapters

Independent Mental Capacity and Mental Health Advocacy

Mental Capacity

Assessment of Needs

Adult Safeguarding

6.2 Relevant information

Chapter 7, Independent Advocacy, Care and Support Statutory Guidance (Department of Health and Social Care)

Advocacy Services for Adults with Health and Social Care Needs (NICE)