Advocacy Referrals for Professionals

The right to an IMHA was introduced in 2007 under the amendments to the Mental Health Act (1983). This is a statutory right and is protected by law.

Those entitled to IMHA support include anyone sectioned under the mental health act (with the exception of sections 4, 5(2), 5(4), 135 and 136), people on CTO (Community Treatment Order) and people subject to Guardianship under the Mental Health Act.

The IMHA service can also be available to people being considered for treatment to which Section 57 (re neurosurgery) applies, and people under the age of 18 and being considered for ECT (Electro Convulsive Therapy) or any other treatment to which Section 58A (re ECT) applies.

Please see link below for more information on the IMHA role from SCIE

https://www.scie.org.uk/independent-mental-health-advocacy/resources-for-staff/understanding/

This video is also useful:

https://www.scie.org.uk/independent-mental-health-advocacy/resources-for-staff/understanding/video.asp

IMHA referrals can be made by professionals, family, or self-referral.

The IMHA role continues until the person is discharged or they decline the service.

It’s important to note that the IMHA service can only be effectively provided if the person wants the service, if at all possible please ask before you refer.

General advocacy covers a wide variety of issues, but the issues have to be related to navigating the health and social care system.

Please note we don’t cover benefits.

Some examples of the types of general advocacy we carry out:

• Someone wants support from social services but doesn’t know how to access it
• Someone isn’t happy with the way their GP is treating them
• Someone with children has children's social services involved with their family and they need support to understand what’s happening
• Someone is going through child protection proceedings

There are other providers of advocacy for certain issues, for example:

• IDVA (independent domestic violence advocate – providers include My Sisters Place and Harbour)
• ISVA (Independent Sexual Violence Advisor, https://archteesside.org/indep...)
• Independent NHS complaints advocate (https://teesvalleyccg.nhs.uk/c...)
• Benefits advisor (Citizens Advice Bureau)

General advocacy referrals can be made by professionals (with the individual’s permission) and by individuals who wish to self-refer (friends/family can also make referrals with the individual’s permission).

General advocacy is issue specific, meaning once the issue on the referral is addressed as far as is possible, the case is closed. There is no time limit on general advocacy, meaning cases may be open for extended periods – in these cases, effective advocacy work must be ongoing.

1.2 representatives provide advocacy for people who are under ‘community DoLS’ (Deprivation of Liberty Safeguards approved by the Court of Protection for people who lack capacity around care and accommodation, are under continuous supervision and control, and are living in the community).

A 1.2 representative’s role is to assess the care package, the restrictive measures, and the proposed deprivation to see that they are appropriate, necessary and proportionate, and least restrictive. The 1.2 representative writes a report for the court of protection confirming that they have done these things, explaining what they have found, and raising any concerns. The role can differ from case to case and authority to authority.

Generally, the 1.2 representative will continue to visit the person for the duration of the authorisation (the amount of time covered by the court order) visiting every 3 months, or more frequently if called for. During this time the 1.2 representative will raise any concerns regarding care, wellbeing, and restrictions to the care provider or commissioner (local authority or health care). In extreme cases the 1.2 representative can also raise concerns directly with the Court of Protection (CoP).

Once the authorisation ends, the 1.2 rep would normally close the file – unless there were outstanding concerns.

1.2 representatives should be referred for once the court process is in place, however, in some cases they are requested at an earlier stage so that they can be involved in planning and consultation. Referrals can be made by the commissioning authority (eg the local authority social worker or legal department, or a representative from continuing healthcare).

Before you make a referral please consider the following:

As a minimum the 1.2 representative will require the following documentation, without which they cannot carry out their role:

• All relevant care plans and associated assessments
• A relevant, recent capacity assessment
• The court application for the authorisation

The 1.2 representative must have a named contact within the local authority (or commissioned by them) who is able to access relevant information, this would normally be someone within the local authority legal team but can be a private solicitor or social worker if they are taking the lead.

The 1.2 representative must be provided with a copy of the sealed order from the Court of protection as soon as possible so that they can continue to represent the person to which the order relates.

Care Act advocacy falls under the Care Act (2014) and aims to ensure that service users who would otherwise find it difficult to participate, are as fully involved as possible in actions and decisions regarding their care and accommodation. Sections 67 and 68 of the Care Act (2014) cover advocacy https://www.legislation.gov.uk...

The legislation requires advocates to be involved when qualifying persons are subject to

• Needs Assessment
• Carer’s Assessment
• Preparation of care and support plan
• Revision of care and support plan
• Childs needs assessment
• Child’s carer’s assessment
• Young carer’s assessment

An advocate should be considered if the person would have substantial difficulty in

• Understanding relevant information
• Retaining that information
• Using or weighing that information as part of the process of being involved
• Communicating the individual’s views, wishes or feelings (whether by talking, using sign language or any other means)

An advocate is not necessarily required if the person already has someone involved who does not work for them in a paid capacity and who can assist them to understand and be involved in the process.

Care Act Advocates may also be required during safeguarding enquiries if the above conditions regarding ‘substantial difficulties’ are met.

This short video explains the care act.

Care Act advocacy referrals tend to be made by social workers or health care workers, there is no limit on the time a case can be open for, but they tend to be closed as soon as the assessment/review/decision/safeguarding is concluded.

Care Act advocates are not decision makers and do not stand in for the person at assessments or reviews, their main aim is to enable the person to be as fully involved as possible. If a person is not able to attend assessments or meetings the care act advocate can represent their wishes.

RPR’s work with people who have been deprived of their liberty in line with the Mental Capacity Act (MCA, 2005). The MCA provides a set of safeguards for people who lack capacity and are considered to be under ‘continuous supervision and control and are not free to leave’ (deprived of their liberty). Under these safeguards, someone can only be deprived of their liberty if certain conditions are met:

• They have a mental disorder and have been assessed as lacking capacity to consent to stay for care or treatment
• They are over 18
• They are living in a hospital or care home (people in the community are covered by the Court of Protection)
• The detention is in the person’s best interests, is necessary to prevent harm to the person, and is proportionate to the likelihood of the person suffering harm and the seriousness of that harm
• There are no refusals (such as an a valid advance decision, or the objection of someone with power of attorney or a deputy)

There are many elements to the RPR role:

• Visit the relevant person every month and find out their wishes and feelings
• Assess whether they are objecting to their care or the placement they are living in
• Check care records to ensure care is being carried out properly and in the least restrictive way
• Check that care files are complete, comprehensive, regularly reviewed, and appropriate
• Raise any concerns with the appropriate professional (care staff, social worker, CHC manager, DoLS team, Court of Protection)
• Write a report for the appropriate local authority DoLS team every 3 months
• Engage the services of a legal professional to challenge the DoL if the person is objecting (21A challenge)

RPR referrals come from the local authority DoLS team – a team of professionals who coordinate DoLS authorisations within their local authority area.

The RPR role continues until the DoLS authorisation ends.

There are many misunderstandings about the DoLS process and the RPR role within it. Please note that anyone who meets the conditions for a DoLS should have a DoLS applied for, whether they are objecting to their care and treatment/placement or not. The RPR does not replace a family member, they do not take people around care homes to visit, they do not collect belongings from people's houses, they do not arrange funerals, they do not make decisions on restrictive practice, covert medication, DNAR orders etc. They can however be consulted about these things and will raise objections if necessary.

The MCA Code of Practice can be found here:

https://assets.publishing.serv...

The DoLS code of practice can be found here:

https://www.cqc.org.uk/files/d...

Various forms are used during the DoLS process – examples of these can be found below:

https://www.gov.uk/government/...

The DoLS will be replaced in the next year or two by the Liberty Protection Safeguards at which time paid RPR’s will be replaced by IMCA’s:

https://www.gov.uk/government/...

IMCAs work with people who have been assessed as lacking capacity in one or more areas. To qualify for an IMCA the person must also have a specific decision to be made and have no one else appropriate to consult.

IMCAs help with the following long-term decisions/situations:

• Change in accommodation (Must be instructed if stay is over 8 weeks)
• Serious medical treatment (must be instructed)
• Care reviews (may be instructed)
• Adult Safeguarding (may be instructed)
• Assessment to see if someone is being or should be deprived of their liberty – 39A IMCA (must be instructed)
• Someone is on a DoLS but there is a gap in RPR provision - 39C IMCA (must be instructed)
• Someone is on a DoLS and has an unpaid RPR who needs help fulfilling their role – 39D IMCA (may be instructed)

For decisions around change in accommodation, or serious medical treatment, the IMCA will work with a decision maker. In these cases, the IMCA role follows a general pattern:

• Information gathering from relevant professionals and documentation
• Consultation with the person who lacks capacity to find out their views and wishes
• Creation of a report which considers all of the circumstances, opinions, wishes, views, and information. The report must provide a balanced view of the decision and the available options, and must provide a conclusion as to which option appears to conform with the mental capacity act as well as relevant case law, whilst factoring in best interests, and the least restrictive option.

PLEASE NOTE:

• The IMCA is not the decision maker
• For the majority of IMCA cases there must be a decision maker and they must be identified to the IMCA
• The IMCA cannot discharge people from hospital
• The IMCA will not take people to visit potential care homes
• The IMCA will need to consult with the person 
• The IMCA will need a period of time to gather information (except for emergency referrals)
• The IMCA must be involved in meetings regarding the decision where at all possible
• The IMCA must be involved at a meaningful stage of the process (I.e. not after the decision has been made)

39A IMCAs must also provide a report to conclude whether a person is being deprived of their liberty and whether this deprivation is appropriate and proportionate.

IMCA DoLS information:

https://www.scie.org.uk/mca/im...

General IMCA information:

https://www.scie.org.uk/mca/im...