The Care Act - Independent Advocacy Policy Guidance Defining the Independent Advocacy Offer Version 1 Document to be refreshed July 2015 1. Introduction The Care Act 2014 requires that local authorities make provision for people that are judged to be in substantial difficulty to have an Independent Advocate to support them engage in decisions about their care and support or in safeguarding investigations (including Safeguarding Adult Reviews (SARs)). This includes carers. This guidance will define Royal Greenwich Council s offer of Independent Advocacy. In particular it will set out when a person should be offered independent advocacy, what role an Independent Advocate is expected to fulfil and clarify the meaning of Independent in this context. This guidance is to be used in conjunction with the Independent Advocacy Referral Form. The content below is based on the Dept. of Health s Statutory Care Act Guidance (October 2014). See for more information see: https://www.gov.uk/government/publications/care-act- 2014-statutory-guidance-for-implementation (pages 113 to 130) 2. When is Independent Advocacy Required? The duty to offer somebody Independent Advocacy arises if three criteria are met. They are: - The person is engaging with the Local Authority about care and support arrangements or is involved in a Safeguarding investigation or Safeguarding Adults Review (SAR). - The person has been judged to have substantial difficulty in that engagement. - There is not an appropriate person available to support the person in that engagement. All three of these criteria must be met for the duty to apply. The criteria apply equally to carers. Consideration of whether or not to offer somebody Independent Advocacy applies from the point of first contact by, or with, an individual, i.e. before any assessment of care and support needs has been carried out. However, before considering if an Independent Advocate is required, Officers should consider if other reasonable adjustments can be made to enable an individual to participate in our processes, e.g. by providing an interpreter. If, having made such adjustments, the individual is still in substantial difficulty and there is no appropriate person available to support them then Independent Advocacy should be offered. 1
The judgement of whether or not somebody would have substantial difficulty in engaging with the Council considers four aspects. - Understanding relevant information - Retaining information - Using or weighing information as part of engaging - Communicating their views wishes and feelings If a person is judged to have substantial difficulty in one or more of these areas then consideration must be given to whether there is an appropriate person to support them or, if not, if they should be offered Independent Advocacy. In some cases people will only need an Independent Advocate temporarily or periodically. This may be because their ability to engage improves over time or varies or because their appropriate person is temporarily unavailable. For others, their ability to engage with the Council may decrease with time, e.g. people with degenerative conditions such as dementia. Hence, the test of whether or not to offer people an Independent Advocate should be applied at each engagement. 3. Role of the Independent Advocate An Independent Advocate will support individuals in those areas where a judgement of substantial difficulty has been made. In line with the general themes that run through the Care Act, the Independent Advocate must always consider the wellbeing of the individual and support them to exercise choice and have control over the way their assessed needs are met. The methods and activities that Independent Advocates use to support individuals should be person-centred; tailored to the needs and preferences of the person who needs advocacy. For example, the Statutory Guidance uses a case study where an advocate uses film of their client who is non-verbal engaging in activities they enjoy in order to demonstrate things that are important to them. The Independent Advocate should establish the best way to engage with each client they work with. In line with the Statutory Guidance, Independent Advocacy will include the following. - Assisting a person to understand Royal Greenwich s eligibility thresholds, assessment process, support planning, review process, safeguarding process and any other relevant procedure, e.g. financial assessments. - Assisting a person to communicate their views, wishes and feelings to Council staff and others involved in care and support processes. - Assisting a person to understand that they have choices around how their needs can be met and supporting that person to exercise those choices and make decisions as a full and equal member of society. 2
- Assisting a person to understand their rights under the Care Act and their wider rights as full and equal members of society. - Assisting people to challenge decisions or to challenge decisions on the person s behalf if they are unable to do so, even with assistance. - In addition to all of the above, in safeguarding procedures to assist a person to: Decide what outcomes they want Understand the behaviour of others that are abusive/neglectful Understand what actions of their own may expose them to abuse and neglect Understand what action they can take to safeguard themselves Understand the information, advice and support that is available to help them, including from the criminal justice system Understand what parts of the process are within their control, either fully or partly Explain what help they want to avoid reoccurrence and recover from the experience. 4. The Offer The timetables below illustrate how an Independent Advocate s involvement might work out. In practice, their level of involvement will vary. The Council must allow the Independent Advocate reasonable time to get to know their client and to prepare for meetings with the Council and should not unreasonable restrict the Independent Advocate s access to records and other information about their client. Although the Independent Advocate should be given time to get to know their client and to prepare for an assessments etc., they should not unduly delay the individual from engaging in the Council s processes. Case Study 1 First Assessment Mr A is a 19 year-old man with learning disabilities and autism. He has been a Looked-After Child since he was 10 years old. Mr A is non-verbal and has limited communication skills. He has no contact with his birth family and his foster carers have stated that they do not wish to support him in adulthood. The Transition Panel has agreed that Mr A requires a Community Care Assessment to determine whether or not he is entitled to receive a care and support package as an adult. The Transitions Team has met with Mr A and judged him to have substantial difficulty in three of the four relevant criteria. Mr A s foster carers are not willing to support him and there is no one else that he is close to that can support him during the assessment. Consequently he has been referred to an Independent Advocate for support. Having received the referral, the Independent Advocate has agreed the following outline timetable for supporting Mr A. Preparation Initial meeting, including discussions with foster parents Telephone interviews with relevant individuals, e.g. Mr A s former teacher and children s social worker 1 hour 1.5 hours 1.5 hours 3
Follow up meeting with Mr A First assessment process and meeting(s) Support planning Total 3 hour 5 hours 5 hours 17 hours Having met with Mr A and his foster carers the Independent Advocate establishes that Mr A is able to use an ipad to communicate and express his desires. However, he is easily distracted and does not concentrate on anything for very long. Therefore the Independent Advocate arranges a series of 20 minute sessions with Mr A to understand his needs and what is important to him. Mr A and his advocate meet three times a week for four weeks to discuss his Care Act Outcomes and put together a set of pictures and photographs that illustrate how Mr A would like to lead his life. The Independent Advocate supports Mr A to show these pictures to the Assessing Officer and subsequently to his Support Planner. In the final analysis the Independent Advocate provides Mr A with 25 hours of direct support and spends a further two hours reviewing Mr A s records and talking to other individuals. Case Study 2 Review Ms B is 44 year old woman with early onset dementia. She has been in receipt of services for two years and her annual review of needs is now due. Ms B is generally lucid but has poor short-term memory and her Home Care provider has reported that she seems to be increasingly forgetful. The Reviewing Officer telephones Ms B to arrange the review. On the basis of that phone call the Reviewing Officer judges that Ms B does not have the capacity to retain relevant information and would hence have substantial difficulty engaging in the review process. Ms B is single and has no children. The rest of her family do not live locally and she has no close friends. Although she does receive some informal support from a neighbour, Ms B has stated that she does not want them to be involved in her review. The Reviewing Officer decides that there is no appropriate person to support Ms B and offers her an Independent Advocate, which Ms B accepts. On receipt of the referral the Independent Advocate arranges to meet with Ms B. On the basis of that meeting, the Independent Advocate proposes the following timetable. Initial meeting Review of Ms B s records Pre-review meetings with Ms B Review meeting Support planning Total 0.5 hour 1.5 hours 2.5 hours 8.5 hours The Independent Advocate meets with Ms B on two more occasions before the review meeting in order to establish her desired outcomes. Each meeting takes an hour and a half. The review itself is relatively straightforward. Deterioration in Ms B s condition is noted and it is agreed to increase the number of hours Home Care she receives. Ms B is able to state that she does not want or need any additional services and it is agreed that no further support planning is required. Overall the advocate provides Ms B with 6.5 hours of direct support and spends an hour reviewing her records. 4
Case Study 3 Safeguarding Investigation Mr C is a young man with learning disabilities. He was formerly a looked after child and has no family. He manages his own bank account, although he needs support to ensure he pays his bills, rent etc. His Personal Assistant has noted that he is often visited by another young man and that he has not had enough money recently to pay his utility bills. They are concerned that this person is financially abusing Mr C and raise a safeguarding alert. Mr C does not seem to understand that a friend can be causing him harm and so it is judged that he has substantial difficulty in understanding relevant information. A referral is made to the Independent Advocacy service. The Independent Advocate proposes the following timetable for working with Mr C. Review of Mr C s records Introductory meeting with Mr C Strategy Meeting with Safeguarding Adults Manager (SAM) Other involvement in the investigation Action planning Total 0.5 hours 1.5 hours 8 hours The Independent Advocate establishes that Mr C is very fond of his friend and does not want to accuse him of any wrong doing because he is afraid of losing his friendship. Mr C also wants to maintain his financial independence. These are the two outcomes he wants to achieve from the investigation. The advocate supports Mr C to understand that it is not right for his friend to always ask him for money. The advocate supported the young man in working out and then sharing with the SAM the steps he would take if his friend pestered him for money in future or fraudulent used his bank card (calling the bank, cancelling the card, calling the police) and steps he was taking to monitor his account. A single meeting is all that is required with the SAM to conclude the investigation and agree an action plan. Mr C is satisfied that his outcomes have been achieved. In total the Independent Advocate provides 4.5 hours of direct support. Case Study 4 Carer s Assessment Mrs D is a 75 year-old woman who cares for her husband. Mr D is a wheelchair user and is now too frail to transfer himself from his wheelchair into bed, onto the toilet etc. He is also unable to access the community without someone to push his chair. Mrs D supports her husband to do these things. The nature of Mr and Mrs D s relationship is complex. In particular, Mr D does not seem to appreciate that his wife has her own support needs and he expects her to be available to support him at all times. The couple have two children, both of whom are adults and live abroad. They are otherwise socially isolated and do not have any close friends. Mrs D is known to be her husband s carer and is offered a Carer s Assessment by his Reviewing Officer. She does not appear to understand the concept of a Carer s Assessment and cannot decide whether or not she should accept the offer. She becomes noticeably distressed. Consequently, the Reviewing Officer judges that she has substantial difficulty in understanding relevant information and in using that information to weigh up a decision. Furthermore, the Reviewing Officer decides that her husband is not an appropriate person to support her because he will put his own wellbeing above that of his wife s. 5
The Reviewing Officer advises Mrs D that she doesn t have to make a decision now and asks her if she would like to talk to someone about it. Mrs D accepts the offer and the Reviewing Officer refers her to the Independent Advocacy service. On receipt of the referral the Independent Advocate proposes the following timetable. Initial meeting Review of Mrs D s records Pre-assessment meeting Assessment meeting Support planning (if required) Total 0.5 hour 0.5 hours 1 hours 6 hours The Independent Advocate meets with Mrs D. Although it takes some time the advocate is able to explain what a Carer s Assessment is and that Mrs D may be entitled to her own package of support. However, Mrs D decides that she does not want any help. The Independent Advocate is satisfied that Mrs D has properly understood her entitlement and has made an informed choice. Overall the Independent Advocate provides of direct support to Mrs D. 5. Process if an independent advocate is required If independent advocacy is required to support an individual, please see process below: a) Referrer completes an Independent Advocacy referral form and confirm judgement of independent advocacy input with referrer s manager b) Send the referral form (with the document password protected [File Info Protect Document Encrypt Password] - see box overleaf) to one of the Independent Advocacy organisations below: Advocacy Organisation Email Telephone Advocacy for Older People in Greenwich (55+) info@afop.org.uk 020 8269 0298 Greenwich Advocacy Partnership (all others) gap@metrocharity.org.uk 020 8305 5003 c) Scan the referral form and record on frameworki d) Initial response from advocacy organisation should be received within two working days (the document password and more information may be requested from the advocacy organisation in this period) e) Timetable sent to referrer for approval of advocacy plan (which should include - tasks; costs; timeframe; contact details of advocate) within five working days f) Referrer approves or queries the advocacy plan as soon as possible g) Referrer confirms the advocacy contact on Frameworki and uploads the finalised advocacy plan h) The referrer stays in contact with the advocacy organisation to ensure timescales are kept to and a good advocacy service is provided 6
NB When approving the advocacy plan, the referrer should note the timeframes and costs. The individual should have unrushed advocacy support but in a timely and cost effective manner. 6. Making Representations The Statutory Guidance makes it clear that the Independent Advocate has a duty to make representations to the Council if they are concerned about: - the way the Council has acted - decisions made - Proposed outcomes. The Independent Advocate must advocate on behalf of an individual if that person does not have capacity or is otherwise unable to make representations themselves. In order to make representation the Independent Advocate must put their concerns in writing and send their report to the appropriate Service Manager for consideration. The Service Manager must consider the report and investigate the concerns. The Statutory Guidance says that the Service Manager should arrange to meet the advocate to discuss their concerns. However, if there is a clear breach in procedure the Service Manager should ensure that it is rectified at the earliest opportunity. Where the matter requires further investigation the Service Manager must arrange to meet the advocate as part of that investigation. The Service Manager must always provide the Independent Advocate with a written response once the matter is concluded. It is anticipated that Phase 2 of the Care Act implementation will bring in a formal, independent appeals process. Further guidance on the role of the Independent Advocate in the appeals process will be provided in due course. 7. Defining Independence The independence of the service is an important consideration for all commissioners. For services to be meaningful and acceptable to those they are designed to support they must have the confidence of individuals, carers and the public. Anything compromising that independence could easily undermine confidence. The Care Act regulations for independent advocacy are clear: providers of advocacy must be independent of the local authority, with their own constitution, code of practice and complaints procedure. Advocates under the Care Act will be managed by, and primarily accountable to, the advocacy organisation that recruits and employs them, thereby maintaining their independence from the local authority. The Statutory Guidance also states that the Independent Advocate cannot be someone that works for an organisation that is commissioned to carry out assessments, care and support 7
plans or reviews for the local authority nor if they are providing care or treatment to the individual in a professional capacity. Independent Advocates and the organisation they work for will need to confirm that they are not otherwise supporting an individual that is referred to them. Where the Independent Advocate or their employing organisation is involved in supporting an individual in another capacity they must inform the Council so that an alternative provider can be sought to provide advocacy services. 8. Supporting Independent Advocates The Council will support Independent Advocates by - Recognising that they have a duty to support and represent individuals in their engagement with us. - Making others aware that an Independent Advocate is acting on behalf of an individual, e.g. the individual s care and support provider. - Assisting the Independent Advocate to contact relevant people and facilitating access to relevant information. - Liaising with the Independent Advocate to address concerns and resolve disputes. It will be a requirement that the providers of Independent Advocacy services ensure that staff acting as Independent Advocates are suitably experienced and that they hold or are working towards achieving the National Qualification in Independent Advocacy (Level 3). 9. Training There are two half hour e-learning courses available for staff to access The Appropriate Individual and The Independent Advocate. This training can be accessed at: http://careactcustomereval.melearning.university/user/multi_level/view/6 10. Independent Mental Capacity Advocacy (IMCA) The Mental Capacity Act 2005 introduced a legal duty on NHS bodies and local authorities to refer eligible people to the statutory IMCA service. The role of the IMCA is to represent and support people without capacity, without family or friends to support them, in specific important decisions made about serious medical treatment and changes of residence with the Council/NHS. Regulations passed in the autumn 2006 extended the powers of local authorities and the NHS to instruct IMCA s in certain cases involving care reviews and adult protection cases. The IMCA's advice must be taken into account in the decision. There is significant overlap between IMCA and the Care Act s advocacy obligations. The provisions of the Care Act are however wider and apply to care planning irrespective of whether it may result in a change of accommodation decision. People for whom there is a power to instruct an IMCA in relation to care review will (in nearly all cases) also qualify for 8
independent advocacy under the Care Act. The Care Act however creates a duty rather than a power in relation to advocacy and care reviews. The Care Act guidance states that it is preferable for one advocate to be used for IMCA and independent advocacy. 11. Independent Mental Health Advocacy (IMHA) The Mental Health Act 1983 (Independent Mental Health Advocates) (England) Regulations 2008 came into force on 1 April 2009 and set out the IMHA service. IMHA s are an important safeguard that help and support patients with mental health difficulties to understand and exercise their legal rights. IMHA s are available to most detained patients as well as patients on supervised community treatment or guardianship. IMHA services exist to give patients with mental health difficulties access to dedicated, reliable, independent support in getting the information they need to understand what is happening to them and what their choices and rights are, and in getting their voice heard and listened to. IMHA services provide an additional safeguard for patients who are subject to the Mental Health Act, and are specialist advocates who are trained to work within the framework of the Act. These services will not replace other advocacy services currently available to patients, but are intended to operate in conjunction with them. Those people who do not retain a right to an IMHA, whose care and support needs are being assessed, planned or reviewed should be considered for an advocate under the Care Act, if they meet the independent advocacy criteria. Advocacy Organisation Email Telephone IMCA PoHwer pohwer@pohwer.net 0300 456 2370 IMCA (May 2015 onwards) Advocacy for All info@advocacyforall.org.uk 020 8300 9666 IMHA Greenwich Mind 020 8301 8301 N.B. This document will be refreshed in July 2015. If you any contributions to the refreshed document please contact Jonathon.horn@royalgreenwich.gov.uk initially 9