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Publication - Guidance

Independent advocacy: guide for commissioners

Published: 20 Dec 2013

Advice for commissioners on the provision of advocacy services under the Mental Health (Care and Treatment) (Scotland) Act 2003.

52 page PDF

512.3kB

52 page PDF

512.3kB

Contents
Independent advocacy: guide for commissioners
Further Reference Material/ Useful inks Appendix 3

52 page PDF

512.3kB

Further Reference Material/ Useful inks Appendix 3

The Adults with incapacity (Scotland) Act (2000) Amended by the Adult Support and Protection (Scotland) Act 2007 which states "In determining an application or any other proceedings under this Act the sheriff shall……take account of the wishes and feelings of the adult who is the subject of the application or proceedings so far as they are expressed by a person providing independent advocacy services." http://www.legislation.gov.uk/asp/2000/4/contents
The Mental Health (Care & Treatment) (Scotland) Act (2003) Section 259 states that "Every person with a mental disorder shall have a right of access to independent advocacy; and accordingly it is the duty of- (a) each local authority, in collaboration with the (or each) relevant Health Board; and (b) each Health Board, in collaboration with the (or each) relevant local authority, to secure the availability, to persons in its area who have a mental disorder, of independent advocacy services and to take appropriate steps to ensure that those persons have the opportunity of making use of those services." http://www.legislation.gov.uk/asp/2003/13/contents
Code of Practice Volume 1 The Mental Health (Care & Treatment) (Scotland) Act (2003) Chapter 6, para 140 of the Code of Practice which supports the Act states: "Where a patient has a degree of incapacity, or cannot for any reason clearly say whether or not they would like an independent advocate, an MHO/hospital managers/appropriate person should consider how an independent advocate may be involved…………The right of access to independent advocacy is for each patient and is not limited only to those who are best able to articulate their needs." http://www.scotland.gov.uk/Publications/2005/08/29100428/04289
Partnership for Care (2003) Extended the principles of the Fair for All approach across the NHS to make sure that 'our health services recognise and respond sensitively to the individual needs, background and circumstances of people's lives'. http://www.scotland.gov.uk/Resource/Doc/47032/0013897.pdf
National Health Service Reform (Scotland) Act (2004) The Act states that NHS Boards have a duty to involve patients, and the public, in the planning and development of health services and in decisions which will significantly affect the operation of those services. http://www.legislation.gov.uk/asp/2004/7/contents
Education (additional Support for learning) (Scotland) Act (2004) The Act states "Where, in connection with the exercise of an education authority's functions under this Act in relation to any child or young person, the relevant person wishes-……… another person (referred to as an "advocate") to- (i) conduct such discussions or any part of them, or (ii) make representations to the authority, on the relevant person's behalf, the education authority must comply with the relevant person's wishes" http://www.legislation.gov.uk/asp/2004/4/contents
Having your say? The same as you? The National implementation report of the advocacy sub group (2006) Made several recommendations:
  • Commissioners should ensure that there is choice in the advocacy available thus requiring that there is a choice of advocacy organisations available.
  • The needs of people with learning disabilities and autistic spectrum disorders should be taken into consideration when commissioning services and people should be involved in the advocacy planning process.
  • Local advocacy plans for each area should state how people can get advocacy support in issues such as housing, transport and the other issues that people in that area say are important.
http://www.scotland.gov.uk/Resource/Doc/113519/0027513.pdf
Better Health, Better Care: An Action Plan (2007) The Plan made a commitment to 'a mutual NHS where patients and the public are confirmed as partners rather than recipients of care'. It also signaled the development of a Participation Standard for the NHS, the development of which was led by the Scottish Health Council. In relation to advocacy, the standard covers the following criteria:
  • 'Independent advocacy services are provided and developed in partnership with other agencies and people who need them'
  • 'An individual's need for advocacy is assessed, recorded and provided where necessary'
http://www.scotland.gov.uk/Resource/Doc/206458/0054871.pdf
Adult support and Protection (Scotland) Act (2007) Amended The Adults with incapacity (Scotland) Act (2000) and states "In determining an application or any other proceedings under this Act the sheriff shall……take account of the wishes and feelings of the adult who is the subject of the application or proceedings so far as they are expressed by a person providing independent advocacy services." http://www.legislation.gov.uk/asp/2007/10/contents
The Road to Recovery (2008) Documents the Scottish Government's approach to tackling Scotland's drug problem, building the capacity of advocacy services, to help service users choose the treatment that is right for them, is part of this approach. http://www.scotland.gov.uk/Resource/Doc/224480/0060586.pdf
Education (additional Support for learning) (Scotland) Act 2009 The Education (Additional Support for Learning) (Scotland) Act 2009 adds to the Education (Additional Support for Learning) (Scotland) Act 2004, and states: "14A Provision of advocacy service: Tribunal (1) The Scottish Ministers must, in respect of Tribunal proceedings, secure the provision of an advocacy service to be available on request and free of charge to the persons mentioned in subsection (2). (2) The persons are- (a) in the case of a child, the child's parent, (b) in the case of a young person- (i) the young person, or (ii) where the young person lacks capacity to participate in discussions or make representations of the type referred to in subsection (3), the young person's parent. (3) In subsection (1) "advocacy service" means a service whereby another person conducts discussions with or makes representations to the Tribunal or any other person involved in the proceedings on behalf of a person mentioned in subsection (2)." http://www.legislation.gov.uk/asp/2009/7/contents
Guidance on Looked after Children (Scotland) Regulations 2009 and the Adoption and Children (Scotland) Act 2007 Provides guidance on the requirement to consider the views of the child. The underpinning principle is summarised as follows: children and young people should not be passive in decision making processes. They have the right to input into decisions about their lives and the services provided to them. http://www.scotland.gov.uk/Publications/2011/03/10110037/0
Dementia Strategy (2010) This strategy was devised reflect the importance and also to build on the significant work which was already underway in Scotland in key areas such as early diagnosis, improving care pathways, and public awareness of dementia. http://www.scotland.gov.uk/Resource/Doc/324377/0104420.pdf
Caring Together - Carers Strategy for Scotland (2010) Recognises carers as equal partners in the delivery of care in Scotland and fully acknowledges carers' expertise, knowledge and the quality of care they give. With appropriate support, especially support delivered early to prevent crisis, caring need not have an adverse impact on carers. Caring Together sets out 10 key actions to improve support to carers. The focus is on improved identification of carers, assessment, information and advice, health and wellbeing, carer support, participation and partnership. http://www.scotland.gov.uk/Resource/Doc/319441/0102104.pdf
Getting it Right For Young Carers Strategy (2010) Recognises that many young people can benefit from providing care to a relative or friend affected by illness, disability or substance misuse. However, we are committed to ensuring that young carers are relieved of inappropriate caring roles and are supported to be children and young people first and foremost. The strategy also endorses an approach which organises services around the child or young person so that all the needs of the child or young person will be identified and addressed, including the impact of caring on their health, wellbeing and education. http://www.scotland.gov.uk/Resource/Doc/319441/0102105.pdf
NHS Healthcare Quality Strategy (2010) NHSScotland Quality Strategy - putting people at the heart of our NHS http://www.scotland.gov.uk/Publications/2010/05/10102307/0
The Equality Act (2010) Provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. The Act restated and simplified 116 separate pieces of earlier equality legislation into one Act, the bulk of which came into force in October 2010. http://www.healthscotland.com/equalities/equalityact.aspx#duties
National Guidance for Child Protection in Scotland (2010) The guidance provides a national framework within which agencies and practitioners at local level - individually and jointly - can understand and agree processes for working together to safeguard and promote the welfare of children. It sets out expectations for strategic planning of services to protect children and young people and highlights key responsibilities for services and organisations, both individual and shared. http://www.scotland.gov.uk/Resource/Doc/334290/0109279.pdf
National Strategy on Self-directed Support (2010) The National self-directed support strategy states that "in agreeing to opt for a direct payment or an individual budget, it is important that…adequate support and advocacy is in place to support people to manage, drawing on the experience of those who direct their own support." The strategy also states that progress towards greater choice, control and empowerment for social care users should be recognised via a number of routes and these include a "sustainable network of advocacy and peer support organisations that support individuals to exercise choice and control." http://www.scotland.gov.uk/Resource/Doc/329971/0106962.pdf
Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Act (2011) Summary of the multi-agency practice guidelines. These are aimed at front line practitioners who are supporting victims of forced marriage. http://www.scotland.gov.uk/Topics/People/Equality/violence-women/forcedmarriage/Guidance
The Patient Rights (Scotland) Act (2011) The Act raises the status and focus of patient's rights and aims to improve patients' experience of using health services. The Act placed a responsibility on Scottish Ministers to publish a Charter of Patient Rights and Responsibilities by 1 October 2012. http://www.legislation.gov.uk/asp/2011/5/contents
The Children's Hearing (Scotland) Act (2011) The Act introduces a requirement to ensure that children and young people going through the Children's Hearings system will, for the first time, be able to get advocacy support. The 2011 Act defines advocacy support as, "services of support and representation for the purposes of assisting a child in relation to the child's involvement in a children's hearing. http://www.legislation.gov.uk/asp/2011/1/contents
Dementia Standards (June 2011) These standards have been developed to help people with dementia and their carers understand their rights, and how these rights can help make sure that they receive the support they need to stay well, safe and listened to. http://www.scotland.gov.uk/Resource/Doc/350188/0117212.pdf
Getting it right for every child (Getting it right) (2012) Building on what the United Nations Convention on the Rights of the Child says, makes clear reference to the central importance of the child's voice and the involvement of children and young people in decision making. It also recognises that sometimes children might need support if their feelings and opinions are to be shared. That is why good quality advocacy support - which helps children and young people to be 'respected' and 'included' - is a significant part of the Getting it right approach. http://www.scotland.gov.uk/Topics/People/Young-People/gettingitright
Charter of Patient Rights and responsibilities (2012) The Charter sets out a summary of the rights and responsibilities of patients using the NHS in Scotland, and of people who have a personal interest in such patients' welfare. The Charter states that: "You have the right to request support when making decisions about your health care. - You may ask (and if you have a mental health disorder you have a right) to have an independent advocate to help you give your views. NHS staff can help you arrange this." http://www.scotland.gov.uk/Resource/0040/00407723.pdf
A Fairer Healthier Scotland (2012) This strategy sets out the role, direction and priorities of NHS Health Scotland for the next five years. http://www.healthscotland.com/documents/5792.aspx
The Engagement Matrix (2013) A tool and guidance for improving engagement between health boards and the third sector. http://www.vhscotland.org.uk/wp-content/uploads/2013/02/Engagement_Matrix_finished_WEB_version_VHS_110213.pdf
Social Care (Self Directed Support) (Scotland) Act (2013) The Self-directed Support Act 2013, which applies to children, adults and carers, states that: The authority must give the person- (d)in any case where the authority considers it appropriate to do so, information about persons who provide independent advocacy services (within the meaning of section 259(1) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13)). http://www.legislation.gov.uk/asp/2013/1/contents/enacted
The National Person-Centred Health and Care Programme A framework to support the delivery of the person-centred aims and ambitions of the NHS Health Care Quality Strategy, using a focused improvement approach to support the testing, reliable implementation and spread of interventions and changes that are known to support health and care services and organisations to be truly person-centred. The high level aim of the Programme is that, by 2015, health and care services are more person-centred as demonstrated by improvements in care experience, staff experience and in co-production. http://www.scotland.gov.uk/Topics/Health/Policy/Quality-Strategy
Participation Standard NHS Boards need to ensure that people have a say in decisions about their care and in the development of local health services. The Participation Standard is a way of measuring how well NHS Boards do this. The criteria within Standard Section 1 relates to Patient Focus and one of the criteria includes "Independent advocacy services are provided and developed in partnership with other agencies and the people who need them." http://www.scottishhealthcouncil.org/patient__public_participation/participation_standard/participation_standard.aspx
Carers Advocacy Guidance (winter 2013) Provides guidance in relation to the provision of advocacy for carers. The Carers Strategy for Scotland 2010 - 2015 recognises that: 'Some carers, especially the most vulnerable, benefit from independent advocacy support to help them in many different ways, including supporting them in their dealings with health and social care and other professionals.'
UN Convention on the Rights of the Child ( UNCRC) The United Nations Convention on the Rights of the Child was developed in 1989 and sets out the basic human rights of children. The Convention consists of 54 Articles which encompass civil, political, economic, social and cultural rights of children and young people. These Articles form a framework against which to evaluate legislation, policy and decision-making structures. Article 12 of The Convention says that children and young people have the right to speak up and have their opinions listened to and taken seriously by adults. Implementation of the Convention is overseen by the UN Committee on the Rights of the Child, who also play an important role in interpreting its content. The Committee recognises the importance of ensuring that children are properly supported to express their views on matters which affect their lives. http://www.unicef.org.uk/Documents/Publication-pdfs/UNCRC_PRESS200910web.pdf

Contact

Email: Sandra Falconer, sandra.falconer@scotland.gsi.gov.uk

Phone: 0300 244 4000 – Central Enquiry Unit

The Scottish Government
St Andrew's House
Regent Road
Edinburgh
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