Both the Care Act and the Mental Capacity Act recognise the same areas of difficulty, and both require a person with these difficulties to be supported and represented, either by family or friends, or by an advocate in order to communicate their views, wishes and feelings.

Care and Support Statutory Guidance

The right to an independent mental capacity advocate was introduced by the Mental Capacity Act 2005. The Act gives some people who lack capacity a right to receive support from an independent mental capacity advocate (IMCA).

Local authorities commission independent mental capacity advocacy services in England. Responsible bodies, the NHS and local authorities all have a duty to make sure that independent mental capacity advocates are available to represent people who lack capacity to make specific decisions; staff will therefore need to know when an independent mental capacity advocate needs to be involved.

For further information see The Mental Capacity Act 2005: Code of practice.

Independent mental health advocacy services were introduced in 2007 to safeguard the rights of people detained under the Mental Health Act 1983 (amended) and those on community treatment orders (CTOs). Independent mental health advocates (IMHAs) aim to enable people to participate in decisions about their care and treatment.

An independent mental health advocate is a statutory advocate, granted specific roles and responsibilities under the Mental Health Act. Their role is to assist people to understand the legal provisions to which they are subject under the Mental Health Act 1983 and the rights and safeguards to which they are entitled. They also assist people to exercise their rights by supporting participation in decision-making.

People are eligible to use independent mental health advocacy services in England if they are:

• detained under the Mental Health Act 1983 (excluding people detained under certain short-term sections)
• conditionally discharged restricted patients
• subject to guardianship
• subject to CTOs.

People who are being considered for treatment requiring consent and/or a second opinion may also qualify for independent mental health advocate assistance.

The NHS Complaints Advocacy Service aims to provide support to people who want to make a complaint about services provided or funded by the NHS, and need some support to do this. Support may range from receiving a self-help pack, information and options, to support from an advocate, depending on needs.

Since April 2013, the service has been commissioned by local authorities individually or in cooperation with other local authorities.

“I have seen in my many years working in self-advocacy that when people with learning difficulties move into self-advocacy they can move away from the family because they start to have more of a voice.”

Co-production workshop participant

Self-advocacy refers to an individual’s ability to effectively communicate his or her own interests, desires, needs and rights. It recognises that people are experts by experience and involves them in speaking out for themselves about the things that are important to them. It means that people are able to ask for what they want and need, and to tell others about their thoughts and feelings.

The goal of self-advocacy is for people to decide what they want, and to carry out plans to help them get it. In self-advocacy the individual self-assesses a situation or problem and then speaks for his or her own needs. A principal aim for all forms of advocacy is to support people to self-advocate as far as they are able to.

Group advocacy involves people with shared experiences, positions or values coming together in groups to talk and listen to each other, and to speak up collectively about issues that are important to them. These groups aim to influence public opinion, policy and service provision. They vary considerably in size, influence and motive. Representatives of local groups are often included on planning committees and involved in the commissioning and monitoring of health and social care services.

Individual advocacy provided by skilled professionals can be essential to ensuring that people who find it difficult to have their voices heard and rights respected receive the support that they need, when they do not fit the specific statutory eligibility criteria.

This is often referred to as “non-statutory advocacy” but may be described under many different names, including “community advocacy”, “generic advocacy” and “professional advocacy”. Non-statutory advocacy plays a vital role in ensuring that that people get their voice heard, are involved and have their rights respected, including when facing major decisions, and at times of crisis.

Non-instructed advocacy is needed when, despite the provision of assistance and support, a person is still unable to give their views and make their own decisions. If this is the case, the independent advocate needs to gather information and insights from a range of sources and use this to represent the person. The aim of non-instructed advocacy is to secure the person’s rights, promote their wellbeing and ensure their wishes are fully considered.

Non-instructed advocacy is often required to provide advocacy under the Care Act as well as that required under other legislation.

There are four recognised approaches to non-instructed advocacy. Providers should endeavour to integrate all these when providing support:

1. A rights-based approach – we all have certain fundamental human rights that can be defined and measured.
2. A person-centred approach – based on the development of long-term, trusting and mutually respectful relationships between advocates and people.
3. A watching brief approach – placing the person at the centre of thinking about the best way to support them.
4. A witness/observer approach – in which the advocate observes or witnesses the way in which a person leads his or her life.

It is important to remember that an individual’s capacity to be involved in decision-making or to instruct an advocate may fluctuate. This provides a further argument in favour of commissioning advocacy under different legislation together, because this maximises the chances of continuity of support.

Peer advocacy refers to one-to-one support provided by advocates with a similar disability or experience or facing similar barriers to a person using services. Trained and supported paid staff and volunteers often provide peer advocacy as part of a coordinated project. Peer advocacy schemes argue that they are particularly well placed to empathise with the needs of people, to approach them as their equals and to feel strongly about, and fight hard for, their needs.

Citizen advocacy aims to involve people in their local community by enabling them to have a voice and to make decisions about the things that affect their lives. Citizen advocacy partnerships are long-term, not time-limited, and last for as long as the citizen advocate and the individual want them to. Citizen advocates are ordinary members of the local community. They are unpaid and usually operate with support from a coordinated scheme.

The QPM framework is designed for use by providers of independent advocacy. It is the independence of advocacy that allows services to be led by and responsible to the client. Research shows that independence is one of the key attributes that people coming to advocacy services are looking for.

It is essential that everyone knows what they can expect from an advocacy service. Providing clarity helps in the following ways:

• people can evaluate the support they receive
• advocates are clear about their role and its boundaries
• it is easier for appropriate referrals to be made, and to ensure that funding intended for independent advocacy is used in precisely that way.

Confidentiality is a cornerstone of independent advocacy. It establishes a relationship of trust that enables people to tell their stories and explore the options available to them. However, confidentiality should not be a barrier to the supervision and support of advocates.

It is essential that services have a clear confidentiality policy which is regularly reviewed. It is equally important that people who come to the advocacy service are given clear information about what confidentiality means, and the circumstances under which it will not be possible to maintain confidentiality.

Additional indicators relating to safeguarding were added to the updated edition of the Quality Performance Mark. This was necessary following the abuse and neglect at the Winterbourne View and Mid-Staffordshire hospitals, to ensure that advocacy providers and advocates are suitably knowledgeable and experienced in identifying safeguarding issues.

Advocacy services need to be focused on the person they are working with. One way of achieving this is to ensure that people who do, or may, use the advocacy service have meaningful influence over the direction of that service.

As advocacy is about increasing the amount of control that people have over their own lives, advocacy services need to ensure they are working in a way that fosters independence. It is important to create a culture that promotes individual empowerment, and to develop methods to determine outcomes with clients and to measure the effectiveness of the advocacy relationship.

As well as complying with equality legislation (The Equality Act 2010 in particular), it is expected that advocacy services take proactive steps to ensure equitable and easy access to them. Having equal opportunities policies is only part of the process. Proactive efforts must be made to implement such policies, to understand the barriers that different people and communities face and to deliver accessible and equitable services.

Advocacy services must be held accountable for the work they do and the way they use the funding they receive. Different stakeholders can hold advocacy services to account in different ways. Funders should be able to see that money is being spent wisely by assessing the effectiveness of the advocacy service. The service should be accountable for meeting the needs of its local community, its legal responsibilities and adhering to agreed advocacy principles. Just as importantly, individuals should be able to expect a high-quality service and should have a clear and accessible route for complaints if they are unhappy with the service provided. This must include independent support for complainants.

Policies, procedures and organisational structure count for nothing if the people delivering advocacy are not adequately trained or supported. Providing training for advocates, and ensuring adequate and appropriate supervision, are essential if services are to retain skilled advocates and ensure high-quality advocacy for people who need it.

• person-centred and focuses on outcomes
• promotes health and wellbeing for all
• delivers social value.

• is co-produced with local people, their carers and communities
• promotes positive engagement with providers
• promotes equality.

• well-led
• demonstrates a whole-system approach
• uses evidence about what works.

• a diverse and sustainable market
• provides value for money
• develops the workforce.

Work closely with local colleagues and stakeholders including researchers, public health, project leads, integrated care boards (ICBs), voluntary, community and social enterprises (VCSE), etc.) to gather information and data about the likely demand for independent advocacy under the duties.

This could include data on population projections, such as your local joint strategic needs assessment or national databases such as POPPI and PANSI.

The duties of an advocate under the Care Act are also more robust than other kinds of specific engagement. They focus more on enabling involvement, and this in turn may require more time and, therefore, resources. Co-production with local residents and community groups will help you understand current access to advocacy, any delays or barriers to getting the right advocacy.

Consider demand since Care Act implementation in your analysis as well as where there might be unmet need or low referral rates. Include any proposed changes or improvements in the assessment and care management pathway for people with social care needs (including children in transition to adulthood), and carers, together with the likely impact this has had or may have on the uptake of advocacy services.

Consider carefully engagement with self-funders. This includes the potential impact of the planned introduction of the cap on care costs, how this may affect the number of people undergoing assessment and care planning, and who will come in scope for advocacy under the Care Act.

Take into account the increase in demand on the system that will accompany the implementation of future funding reforms.

Review current advocacy provision and uptake, considering:

• who currently uses advocacy services
• what local people understand about advocacy services and the potential benefits
• the barriers people currently experience in accessing care, which may best be addressed through improved access to advocacy
• the types of advocacy services people want and need
• how people currently access services
• how they might choose to access services in the future
• the experience of practitioners in referring to advocacy services including wait times and responsiveness
• quality monitoring of existing contracts
• what people consider to be a good local advocacy service which meets their needs.

You should analyse demand for Care Act advocacy in conjunction with demand for needs and carers’ assessments in line with the duties under the Act.

Consider whether any particular challenges within either the Local Authority or amongst providers are impacting the provision of advocacy in your area.

Even though the Care Act should be well embedded in local practice by now, modelling and ongoing assessment against the Care Act duties should be based on your understanding of how these variables affect each area.

This could be done in conjunction with the principal social worker by auditing a small sample of assessments, making a judgement about their need for advocacy and what action has resulted. This can be used to keep improving practice and also to extrapolate in terms of demand and provision if advocacy has not been put in place or been available at the right time.

Seeking evidence and thinking afresh about the likely referral levels may be especially important, given that widespread variation in use of advocacy under the Care Act could suggest potential non-compliance with the legislation. There could also be micro-variations within a local authority area that commissioners should seek to understand. It is important that commissioners do not assume that historical referral levels alone provide sufficient indication of future needs, but instead consider carefully and draw in evidence to model and understand what full legal compliance would require.

Seek out good practice in the form of quality standards to understand the quality of local services and decide, in co-production, what mix of services will meet and continue to meet local needs. These include:

• Quality standards for independent advocacy
• The ‘Advocacy Charter’
• The ‘Advocacy Code of Practice’.

This type of reflection on good practice in advocacy should assist you in specifying the types of services most appropriate to meet demand in your area. It may also help you identify good practice that is already taking place.

Ensure any review or evolving plans are linked with overall departmental and corporate aims in relation to Care Act compliance to meet your advocacy duties under the Care Act; project future financial commitments based on likely demand. These are your responsibilities as a commissioner of independent advocacy.

Plans should have begun with an analysis of demand (as described above) and commit appropriate resources to ensure compliance with the Act on an ongoing basis.

Communicate with comparable local authorities to benchmark demand analysis and resource allocations around any areas of commissioning. If you need to identify potential partner authorities or critical friends to enable ongoing quality improvement, seek out support from representatives of different councils through the Local Government Association and the Association of Directors of Adult Social Services.

Refer to SCIE’s guide to co-production.

Develop commissioning, purchasing and monitoring activity alongside people who use services and potential users of services to ensure that the supply of advocates meets local need effectively.

Communicate with comparable local authorities to benchmark demand analysis and resource allocations around any areas of commissioning. If you need to identify potential partner authorities or critical friends to enable ongoing quality improvement, seek out support from representatives of different councils through the Local Government Association and the Association of Directors of Adult Social Services.

Refer to SCIE’s guide to co-production.

Develop commissioning, purchasing and monitoring activity alongside people who use services and potential users of services to ensure that the supply of advocates meets local need effectively.

Review what happens locally and seek to understand what works well now and how this could be expanded if required. This includes what currently works well, and where there is over- and under-supply of services.

Map current provision and uptake of services against the current level of demand and the service user pathway to understand fluctuations and barriers to accessing advocacy services. Check this against your equalities data, to understand if any cohorts are missing out or to understand discrepancies.

Analyse and explore the impact of any changes to advocacy services on users and seek to understand the implications of any changes in line with the Equality Act 2010.

Consider the performance of existing advocacy services in your area (statutory and non-statutory). In light of this analysis, you may decide to review the provision of all advocacy services and consolidate them into one contractual arrangement. There may, of course, also be benefits to having a number of advocacy providers either accessed via a lead provider arrangement or through a number of contracts. Key to effective commissioning is recognising that ‘one size does not fit all’ and the local context (population, geography, local views and provider capacity) should play a role in determining the appropriate model.

Agree outcomes for the provision of advocacy to meet Care Act duties that signal your future commissioning intentions for the local area.

Integrate the ongoing collection and analysis of demand information, good practice, financial resources, benchmarked costs, co-production and involvement plans as well as a wider analysis of advocacy in the local area to amend and review a clear commissioning strategy and/or plan.

Have a process of engagement with existing and potential providers, as well as co-production with local people who use services, around a clear strategy setting out legal duties and intentions of independent advocacy provision under the Act. Positive working relationships between commissioners and providers will enable services to continue to develop.

Remain vigilant about the risks of not complying with the Care Act or underestimating the possible increases in demand for advocacy services. Needs may have changed or increased through the pandemic too. Review contracting options and consider the use of outcomes-based service specifications that enable more flexible purchasing arrangements with providers. You may want to consider:

• arrangements in which an expected minimum level of support to individuals and core services (including awareness-raising), and a commensurate level of funding, are specified together with additional funding as demand increases
• arrangements for flexibility between different elements of advocacy provision, where these are combined, to allow for peaks and troughs
• arrangements whereby awareness-raising and service delivery are balanced: time can be spent on the former to enable your local authority to meet its duties
• joint commissioning arrangements with NHS colleagues, and with children’s services.

Develop mechanisms for ongoing dialogue with local partners (including the NHS and related local authority services) and existing and potential providers in order to build consensus on the implications of the commissioning plans for your area. These mechanisms might include forums, individual discussions, ‘meet the buyer’ events, and feedback through email or online chatrooms.

It is important to involve potential providers at an early stage of the process. They will provide insight and constructive challenges to your plans. Ensure this includes smaller community advocacy services that may have the trust of particular communities.

Using your needs analysis, continuous assessment and monitoring, you should always model a range of options that will offer a good mix of advocacy services for your area (including maintaining the status quo). Review existing contracts to see how well they align with these models. Seek to understand the financial implications of each model.

Work with decision-makers to ensure they understand the significance of the Care Act requirements. Be clear about possible business risks and costs of non-compliance. Develop evidenced cases to present to senior staff and politicians.

Ensure that advocacy forms a key part of the business case and of financial planning for ongoing Care Act implementation.

Use co-production to assess and understand how advocacy is working in your area. This enables local people to contribute to the design of services and the standards expected, and maximises control over services once they are established. Please see information on co-production and other sections on co-production in this commissioning guide.

You should ensure that any current provision or future plans and strategies prioritise the ability of people to choose appropriate and proportionate support at each stage of their care pathway. Establish a clear link with your strategy for delivering Care Act duties to provide information and advice.

Ensure that any potential implications of new services have been analysed in line with the requirements of the Equality Act 2010.

Ensure advocacy entitlements are clearly linked with corporate and departmental communication plans for ongoing Care Act implementation. Be clear and consistent about messages to citizens, providers and staff about the process and timescales for commissioning any new service.

Develop an understanding of providers through:

• market testing/‘meet the buyer’ events
• involving users of existing advocacy services
• site visits
• provider questionnaires.

Engage in regular and productive dialogue with providers that encourages consensus and partnership-orientated relationships to develop services in line with your population needs, rather than the historical awarding of contracts. Continue to review, reassess and, where necessary, re-commission to meet your population needs.

Using the above mechanisms:

• work with providers to ensure diversity of available services and encourage collaboration where possible to develop the market
• work with people who use services, potential service users and providers to design services that meet the needs identified in the earlier or ongoing analysis.

Build any plans for commissioning advocacy services into market position statements, and work with providers to understand the market and the potential challenges your commissioning plans present.

Consider encouraging the development of partnerships between larger organisations and smaller, local ones. This could be developed through peer-to-peer evaluation and support or more formal consortium arrangements. Consider whether it might be appropriate to “reserve” contracts for local or small VCSE organisations.

Be clear about the legal requirements for providers (see the section Advocacy duties in this guide). Consider and specify the requirements for organisations or consortiums to enable them to deliver this service and ensure compliance with your legal duties.

Consider the level of training and expertise individual advocates must have in relation to the wide range of processes through which they will need to support people. You should ensure that contracts allow for sufficient time and adequate arrangements for staff training and support, along with continuing professional development.

Specify the funding model for the service, and use the intelligence from the last few years, considering the growth in demand over the life of the contract and your analysis of demand and available resources. Ensure flexibility and funding stability for providers. Carefully specify the expected outcomes, developed locally with key stakeholders, including potential users of services. Specify a mechanism for ensuring the independence of the service – it is good practice to identify the means of safeguarding independence in funding agreements and contracts. This would include, for example:

• Having a clear system for resolving disputes which could be included in an engagement protocol. For example, this could allow the service to raise issues in relation to independent advocacy referral at a senior level within the local authority.
• The commissioning authority not being involved in any matters of staff deployment or discipline. This would include not trying to determine whether a particular advocate does or does not support and represent a specific individual.
• The commissioning authority avoiding stepping into how cases are managed.

Be clear about the pathway for referral/instruction in any services, and about how this fits with any proposed redesign of the assessment and care management processes of your local authority.

Specify the need for co-production of quality assurance and clear feedback mechanisms for users of, and referrers to, the new service, to both provider and commissioner for ongoing monitoring and quality improvement.

Specify a clear requirement to collect and provide information about protected groups, in line with equalities and human rights legislation.

Specify requirements for any provider to promote and market their service, both alongside the council in its duty to provide information and advice, and independently, particularly within ‘seldom heard’ groups. Ensure contracts enable access and influence for commissioners in relation to the effective operation of the service and consider the results of feedback from referrers and users of the advocacy service.

Consider using the Advocacy Outcomes Framework developed by NDTi as a basis for the approach you want the advocacy provider to take. An outcomes-based approach may be more beneficial for clients to help ensure the quality and focus of advocacy provision and it allows very clear measures by which you can evidence the quality of service within commissioning.

In determining the length of contract to offer, it may be helpful to consider the potential advantages of long-term flexible contracts that:

• avoid regular disruption to advocacy support to your population
• ensure consistency of services and relationships between advocates and their clients
• more effectively embed advocacy and advocates with in the wider professional and community groups they engage with across your population
• leverage expertise and knowledge within advocacy providers, to ensure continual improvement throughout the contract term.

Be open and transparent about any communication with potential providers. Ensure you offer the same opportunities for communication to all, and be clear about the requirements of any procurement process you seek to pursue.

Procurement should be led by the strategic analysis of need over the life of the contract and in terms of the relationship with other services. Consider joint commissioning with other agencies including other local authorities, health services and children’s services.

Work with providers to understand how you can build flexibility into the delivery of services and the ability to respond quickly to changes in demand.

Maintain good and consistent dialogue with providers and the users of services so that issues of delivery can be picked up quickly and easily, before they become a contractual issue.

As the commissioner of the advocacy service you play a vital role in conjunction with both your colleagues in the local authority and the advocacy service, to facilitate effective advocacy provision and ensure that the duty to refer to advocacy is complied with.

This includes:

• ensuring that information about advocacy is provided
• encouraging training of front-line local authority staff
• ensuring local authority systems and processes remind and encourage professionals involved in assessment, planning, review and safeguarding to make a referral whenever legally required and, if in doubt, to make appropriate enquiries, including seeking clarity from the advocacy service provider.

You also play an important role in developing a culture which embraces challenge from advocacy. ADASS reminds senior managers and commissioners to “embrace and promote receiving challenges from advocates as an essential way of safeguarding people’s human rights and voice and role model this behaviour.”

Training and development for staff should be embedded as standard so that they are aware of the advocacy duties under the Care Act, and how this impacts upon their roles and responsibilities. Everyone involved in social care locally needs to have a clear understanding of advocacy, including:

• why it needs to be independent
• its various forms
• the legal context
• its role in implementing the Care Act wellbeing principle
• its duties in relation to prevention as well as supporting peoples’ involvement in their care.

To develop an understanding of advocacy and roles in promoting and supporting access and uptake, those involved should look at capacity building and support for commissioners and frontline staff, including the development of co-produced training.

Review the pathways for people using services and ensure that assessment processes are effective in picking up a potential need for advocacy services every step of the way and case management systems prompt referrals.

Work with people who use services and their carers to test approaches and improve or develop information and support materials to enable people to access services quickly and easily if they are required.

Ensure information and guidance support continues to align with the Care Act advocacy duty.

To judge whether they give value for money:

• review the service against specified deliverables
• ensure reviews are evidence- and outcome-driven
• consider the development of service user involvement in contract monitoring
• use measures that enable you to assess uptake and demand for services in real time and to work flexibly with providers to help them respond
• use continuous feedback from people and professionals to adapt and make changes as and when required
• create mechanisms or forums for shared learning, if you haven’t already.

Ensure that procurement and contract monitoring activities are proportionate to risk and promote the delivery of outcomes. Building the evidence for impact with user and community-defined outcomes, rather than outputs, is central to sustainability. This should be supported by a simple and agreed system for data collection that supports meaningful and proportionate monitoring. Data might include:

• access rates
• demographic detail
• outcome measures
• descriptive accounts of trends in use of advocacy services, partnership working and co-production
• case studies.

Dialogue between commissioners and providers is key. Work in positive partnership with providers, to understand where performance may be falling short and how they might address any issues.

Consider decommissioning when services fail to meet outcomes or do not provide value for money, and where efforts to work in partnership have failed to improve performance. This should be evidence-based, with any proposed plans for recommissioning new or different services based on a detailed knowledge of supply and demand and the needs and knowledge of people who use services.

In any situation where there are concerns about service failure or viability, commissioners need to be ready to put contingency arrangements in place so legal duties to provide advocacy can continue to be met. Mitigation might include making arrangements with advocacy services in neighbouring boroughs, to manage or supply advocates until longer-term arrangements can be implemented.

Keep clear and consistent records of the commissioning activities described above. Work with commissioners in other local authorities and national improvement agencies (such as SCIE and NDTi) to benchmark your own performance and keep up with good practice. Discuss and reflect on your commissioning of independent advocacy under the Act with colleagues.

When reflecting on commissioning arrangements, consider the tendering process and how you can ensure all providers are given sufficient opportunity to engage with the process. Ways this can be done include: market engagement activities; offering opportunities to clarify any queries or concerns; and well published and thought-through timelines, which will allow providers to develop well-considered and appropriate responses to a tender, and for panels to have sufficient time to assess bids.

When establishing timetables for the tendering and implementation of advocacy, ensure a period of at least three to six months for implementation of a new contract, or handing over of a service to a new provider. Work with the outgoing and incoming providers to support a smooth transition of any staff, advocacy clients, and to make sure professionals who need to know about service changes are informed in good time. The implementation period of when contract is officially awarded and the start date of a new contract should not be shorter than three months.