Interaction between statutory advocacy duties
Published: October 2014
Updated: March 2015
Independent advocacy under the duty imposed by the Care Act 2014 is similar in many respects to independent advocacy under the Mental Capacity Act. Regulations have been designed to enable independent advocates to carry out both roles. However, the duty to provide independent advocacy under the Care Act is broader and applies in a wider set of circumstances, providing support to:
- people who have capacity but have substantial difficulty in being involved in the care and support process
- people in relation to their assessment and/or care and support planning regardless of whether a change of accommodation is being considered for the person
- people in relation to the review of a care and/or support plan
- people in relation to safeguarding processes (though independent mental capacity advocates may be involved if the authority has exercised its discretionary power under the Mental Capacity Act)
- carers who have substantial difficulty in engaging, whether or not they have capacity
- people who have someone who is appropriate to consult for the purpose of best interests decisions under the Mental Capacity Act, but where that person is not able or willing to assist with advocacy in any other capacity.
There are likely to be people who qualify for advocacy under the Care Act but not for an independent mental capacity advocate. However, most people who qualify for independent advocacy under the Mental Capacity Act will also qualify for independent advocacy under the Care Act. To enable a person to receive seamless advocacy and not to have to repeat their story to different advocates, the same person can provide support in both roles, provided they are trained and qualified to do so.
If someone has previously had access to an IMHA and is being jointly assessed by the NHS and local authority (often under what is called a Care Programme Approach), they should be considered for an advocate under the Care Act, if they have substantial difficulty in being involved and if there is no appropriate person to support their involvement.
Local authorities do not have to commission one organisation to provide the different types of advocacy but, over time, there may be advantages to this.
The Care Act extends the range of situations and people to whom there is a duty to make advocacy available. Nothing in the Act prevents advocacy being provided in other circumstances.
All SCIE resources are free to download, however to access some of the following downloads you will need a free MySCIE account:
- Care Act 2014: Commissioning independent advocacy
- Commissioning independent advocacy guide
- At a glance summary of Care Act 2014: Commissioning independent advocacy
- Easy read summary of Care Act 2014: Commissioning independent advocacy