Other statutory advocacy duties (not related to the Care Act 2014)
Published: October 2014
Updated: March 2015
Local authorities have a number of other statutory duties to ensure access to advocacy which are described below. You should work closely with colleagues in assessment and care management as well as accessing legal advice to gain a full understanding of these duties and how they interact.
The Mental Capacity Act 2005
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.
Local authorities have commissioned 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, and so any staff affected will 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.
The Mental Health Act 2007
Independent mental health advocacy services were introduced to safeguard the rights of people detained under the Mental Health Act 2007 and those on community treatment orders (CTOs). Independent mental health advocates (IMHAs) aim to enable qualifying users 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 qualifying patients 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 qualifying users 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 Health and Social Care Act 2012
The NHS Complaints Advocacy Service was set up in April 2013, replacing the Independent Complaints Advocacy Service (ICAS), which provided support to people wishing to make a complaint about the NHS. This service was centrally commissioned by the Department of Health on a regional basis, but the new service is now commissioned by local authorities individually or in cooperation with others.
The service aims to provide support to people who want to make a complaint about 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.
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