What is an advocate?
Advocates are independent professionals who work with people to help them understand their options, know their rights and say what they want. This helps to make sure that people are involved as much as possible in decisions about their health and care.
Your duty to refer
Advocacy is a statutory right for eligible people. The Mental Capacity Act and Care Act state that you must refer eligible people for advocacy. The Mental Health Act states that you must make eligible people aware of how to access advocacy.
An advocate does not:
- offer counselling or befriending
- offer legal advice
- tell people they support what decisions to make
- tell health or social care professionals what decisions to make
What do advocates do?
An advocate can support someone to:
- communicate their views and wishes
- understand their rights
- understand any processes and decisions they are subject to
- understand the options they have
- make their own choices
- challenge a decision
Even when someone can’t tell their advocate what they want, our advocates will use a range of approaches to establish their views and wishes as far as possible and secure their rights. In some circumstances, an advocate has the right to access medical or care records on behalf of the person they are supporting. An advocate may write a report that must be taken into consideration by professionals.
Who is eligible?
Use the information below to find out who you must refer. If you are unsure about eligibility, or have questions about advocacy types, contact us.
Independent Mental Capacity Advocacy (IMCA)
When to refer
Make a referral when both conditions apply:
1. the person is assessed to lack capacity in relation to a decision about:
serious medical treatment
long-term accommodation
also section 39a, 39c, 39d (Mental Capacity Act, DoLS referrals, including RPR and 1.2 Reps)
> 39a) for a person being assessed under DoLS, when there is no one appropriate to consult
> 39c) when there is a gap between appointment of Relevant Person’s Representative (RPR)
> 39d) if a person has an unpaid RPR, and the person or the RPR, asks for an advocate or the
Supervisory Body recommends it
2. there are no family or friends considered appropriate to consult about the decision
An IMCA can also support with these, although sometimes a Care Act referral is more appropriate
a care review following a long-term accommodation decision (sometimes known as a
placement review), 4-6 weeks after placement
safeguarding issues
‘Lack capacity’ means the person:
has an impairment or disturbance that affects the way their mind or brain works (e.g. a brain injury, dementia, autism, learning disabilities, mental health problems) AND
the impairment or disturbance means that they are unable to make a specific decision at the time it needs to be made
Advocate’s role
As far as possible, to:
- make sure that the person’s views and wishes are taken into account in the best interests decision
- support the person to be involved in the decision, or to represent them if necessary
- uphold the person’s rights in relation to that decision
Independent Mental Health Advocacy (IMHA)
When to refer
Make a referral whenever a person is in any of the following situations:
- detained under the Mental Health Act (even if on leave of absence from the hospital) but excluding people under short term sections 4, 5, 135 and 136
- a conditionally discharged patient
- subject to a Community Treatment Order (CTO)
- subject to a guardianship
- being considered for S58A treatment (including informal patients and people under 18)
- being considered for S57 treatment (including information patients)
Advocate’s role
To support the person:
- understand their rights and options
- understand decisions about treatment
- understand the parts of the Mental Health Act which apply to them
- have their views and wishes heard in decisions about their care or treatment
- raise anything they are unhappy with relating to their care or treatment
Care Act Advocacy
When to refer
Make a referral when all three conditions apply:
1. one of the following processes is taking place
- social care needs assessment
- carer’s assessment
- care planning
- care review
- S42 safeguarding investigation
2. without support, the person will have substantial difficulty being involved
3. there are no appropriate, able and willing family or friends to support the
person’s active involvement*
*There are some exceptions
‘Substantial difficulty’ means that, without support, the person will find it very hard to do one or more of these:
- understand relevant information
- retain that information
- use or weigh up that information
- communicate their wishes and views
Advocate’s role
To support the person to:
- understand their rights under the Care Act
- be fully involved in the assessment, review or planning process
NHS Complaints Advocacy
When to refer
Anyone who wants to make a complaint about an NHS-funded service can get our help. People can find our NHS complaints self-help resources on our website, or we can post a copy. If they need more support, you can refer them to an advocate, or they can request an advocate themselves.
Advocate’s role
NHS complaints advocates support people to complain about the treatment or care they or a family member received from an NHS service. This support is available at every stage of the complaints process.
How to make a referral
Send an email to advocacy@adapt-tynedale.org.uk, or call 01434 600599 (Option 2). If you have any questions about eligibility or advocacy types, contact us.
