3. The importance of Independent Advocacy
3.1 Advocacy becomes an organised activity because:
- people can be treated unfairly as a result of institutional and systemic barriers as well as prejudice and individual, social, and environmental circumstances that make them vulnerable
- some people have no connections to family, carers or friends or the wider community who could support them
- For some people family, carers and friends may have conflicts of interest
- some people may only have professional paid workers involved in their lives. No matter how good the relationship may be, or how well supported they may feel, situations can arise when the person's wishes are not what the paid worker may feel is the right way forward
- a paid professional may be constricted by their role, their legal responsibilities or by their employer.
3.2 In order to be able to ensure the individual's views are heard and understood and that they receive support to ensure their rights are not infringed, it is important for advocates to be as free as they can be from conflicts of interest.
3.3 Advocates, whether paid or unpaid, must be clear that their loyalty lies with the person who needs advocacy, not to the agencies providing or involved in that person's care or to other significant people.
3.4 It is vital that anyone who might benefit from using an advocate feels confident about making that contact, without any real or perceived worries about conflicts of loyalty on the part of the advocate.
3. 5 The Mental Health (Care & Treatment) (Scotland) Act 2003 (Part 17, Chapter 2, Section 259) identifies that every person with a mental disorder (as defined under section 328 of the Act) has a right to independent advocacy. The Act places a duty on local authorities and the NHS to ensure that such services are available. (See provisions set out in Section 5 and 6)
3.6 For the purposes of the Act, independent advocacy is advocacy provided by persons other than a Local Authority or a Health Board responsible for providing services in the area where the patient is to receive care or treatment, or a member of those bodies or any other person involved in their care or treatment or in providing services to them.
3.7 The Code of Practice Volume 1 for the Mental Health (Care & Treatment) (Scotland) Act 2003 provides additional clarification and states that provision of independent advocacy may be for one to one or group or collective advocacy. The Code further states that: 'Any or all of the various types might be appropriate depending on the circumstances and personal preferences of the patient concerned.' In addition it identifies the need for independent advocacy organisations to have policies in place to identify and manage/minimise the risk of any conflict of interest.
3.8 This guidance is designed to support Local Authorities and NHS Boards to ensure that they understand and comply with their duties and obligations under the 2003 Act. The guidance can also be used in relation to the provision of advocacy support for anyone within their area who needs it. Appendix 3 provides links and references to other pieces of legislation and material which recognise the importance of the provision of independent advocacy for people who need it.
3.9 There are key factors which underpin good independent advocacy:
- advocacy groups should be firmly rooted in, supported by and accountable to a geographical community or a community of interest
- advocacy groups and those involved as advocates should be constitutionally and psychologically independent of local and national government
- advocacy groups should not be involved in the delivery of care services or the provision of other services to the individual who requires advocacy
- different approaches to independent advocacy are needed; there is no best model
- advocacy groups should maintain a clear and coherent focus of effort
- advocacy groups should undergo regular independent evaluation of their work, and commissioners should provide financial support for this.
3.10 Non-Independent Advocacy
3.10.1 It is important that whatever the setting advocates work in a clear, accountable and transparent way. Commissioners should also therefore seek to encourage the use of this guidance and the application of the principles given in Appendix 1 as appropriate and where possible in the commissioning, monitoring and evaluation of any advocacy services and to identify any potential conflicts of interest, ways of managing these conflicts and also take action to enhance independence. Links and references to legislation and material which provide further advice and guidance are given in Appendix 3.
3.10.2 Commissioners should give consideration to the unique role of unpaid carers as care providers when commissioning advocacy services. A practice guidance for carer advocacy has been produced and will be available in 2014. It will be of interest to everyone involved in working with and supporting unpaid adult carers to provide a wide understanding of the role and boundaries of advocacy for carers. It demonstrates the benefits of advocacy for adult carers and gives guidance on best practice in planning, commissioning and delivery of advocacy services.
Email: Sandra Falconer, email@example.com
Phone: 0300 244 4000 – Central Enquiry Unit
The Scottish Government
St Andrew's House