6. Principles and Standards for Independent Advocacy Reflecting Commissioners' Statutory Responsibility
6.1 The Mental Health Act (Care & Treatment) (Scotland) Act 2003 defines independent advocacy in section 259 as follows:
(5)For the purposes of subsection (1) above, advocacy services are "independent" if they are to be provided by a person who is none of the following-
(a) a local authority;
(b) a Health Board;
(c) a National Health Service trust;
(d) a member of-
(i) the local authority;
(ii) the Health Board;
(iii) a National Health Service trust,
in the area of which the person to whom those services are made available is to be provided with them;
(e) a person who-
(i) in pursuance of arrangements made between that person and a Health Board, is giving medical treatment to;
(ii) in pursuance of those arrangements, is providing, under the National Health Service (Scotland) Act 1978 (c. 29), treatment, care or services for; or
(iii) in pursuance of arrangements made between that person and a local authority, is providing, under Part II of the Social Work (Scotland) Act 1968 (c. 49) (promotion of social welfare) or any of the enactments specified in section 5(1B) of that Act, services for the person to whom the advocacy services are made available;
6.2 The Code of Practice Volume 1 for the Mental Health (Care & Treatment) (Scotland) Act 2003 (Para 99) states that:
"Independent advocacy organisations may provide individual or group advocacy. The Act is not specific about the type or types of independent advocacy services to which a patient should have a right of access. Any or all of the various types may be appropriate depending on the circumstances and personal preferences of the patient concerned."
6.3 The Code of Practice Volume 1, Chapter 6 (Paras 108, 109 and 110) further expands on the 2003 Act definition of independent advocacy to give the following guidance:
"108. Independence is key in the patient's right to advocacy, because it is vital that the role of independent advocacy is not compromised in any way. Independence ensures that the advocacy services provided are divorced from the interests of those persons concerned with the patient's care and welfare. Conflict might occur for example, if a person providing advocacy services was also a care provider and a patient wanted to raise issues about their care. It is clear that in those circumstances, the advocate's ability to support that patient would be severely compromised.
109. The Act therefore, makes specific provision that to be "independent", the advocacy services must be 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 treatment or in providing services to them. Any independent advocacy organisation should have policies in place to identify and manage/minimise the risk of any conflict of interest.
110. Independent advocacy should be provided by an organisation whose sole role is independent advocacy or whose other tasks either complement, or do not conflict with, the provision of independent advocacy. If the independent advocacy service or advocate has a conflict of interest, they should inform all relevant parties of this, and should withdraw from acting for the patient."
6.4 These requirements are now reflected in the Principles and Standards included as Appendix 1 to this Guide. Commissioners should therefore ensure that advocates and advocacy organisations commissioned to provide independent advocacy services in their area under the Act comply with these Principles and Standards.
6.5 Commissioners should pay particular attention to Principle 3 which states - "Independent Advocacy is as free as it can be from conflicts of interest." In relation to this principle and in line with the requirements set out above commissioners have a duty under the Mental Health Act is to ensure that the following standards are met when commissioning independent advocacy:
Standard 3.1 - Independent advocacy providers cannot be involved in the delivery of welfare or care services or in the provision of other services to the individual for which it is providing advocacy.
Standard 3.2 - Independent advocacy should be provided by an organisation whose sole role is independent advocacy or whose other tasks either complement, or do not conflict with, the provision of independent advocacy.
Standard 3.3 - Independent advocacy looks out for and minimises conflicts of interest
6.6 An organisation providing independent advocacy should be able to demonstrate that the advocacy services it provides meet the standards set out above and are as free as they can be from conflicts of interest. Standards 3.1 and 3.2 above differ from the standards within the SIAA Principles and Standards for Independent Advocacy (mentioned earlier at paragraph 4.4) but do not stop Commissioners from applying the SIAA standards if they wish.
6.7 Advocacy should be provided by an organisation which operates independently from other service providers involved in the treatment and care of the individual. This reduces potential conflicts of interest and minimises the restrictions on the work of advocates and the organisation. Appendix 2 provides further advice in relation to the requirement to have policies in place to identify and manage/minimise the risk of any conflict of interest.
6.8 Nurses, social workers, care staff, doctors, teachers and other professionals look out for and speak up for the people they serve. It's their job, it is part of their professional code of conduct but they are not independent.
6.9 Independent advocates do not have the same potential conflicts of interest as professional workers who are expected to make decisions based on an individual's clinical needs and on the most efficient way to use NHS resources. Because advocates do not have this sort of power over people and do not control access to resources they are in a better position to see things from the person's point of view rather than the system's point of view. They can focus on representing the interests and wishes of the people who need an advocate, and be clear that this is their role. Independence doesn't mean seeking the 'best interest' of a client but in helping a client to express their wishes and preferences.
6.10 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, advocates have to be structurally and psychologically independent of the service system. Independent advocates - whether paid or unpaid - are clear that their primary loyalty and accountability is to the people who need advocates, not the agencies providing health and social services, and not to the government.
6.11 Psychological independence - independence of mind - is even more important than structural or financial independence. Some independent agencies are funded in part or wholly by statutory agencies and therefore have a responsibility to account to their funders for how they are spending the money.
6.12 But independent-minded advocates do not ask the funders for permission to disagree with them. Instead, they challenge agency policy and practice where these are compromising the well-being of the people they represent. They do not expect to be popular with everyone, but they do seek to ensure they are respected for the quality and integrity of their work.
6.13 Good advocacy agencies do not seek confrontation but they maintain the principle of primary accountability to the people they serve. Good commissioners welcome this spirit of independence, even if it makes their life harder.
6.14 Ideas on how to ensure independence
- Be committed as commissioners to this essential component of good effective advocacy.
- The advocacy organisation should work within the Principles and Standards set out in Appendix 1 of this guide and have policies in place to identify and manage/minimise the risk of any conflict of interest (See appendix 2 for suggested areas for consideration and inclusion in this policy.)
- Ensure that projects have security of funding for periods of at least three years, allowing time to grow and confidence to challenge.
- Encourage advocacy organisations to diversify their funding streams, while remembering that NHS Boards and Local Authorities still have statutory duties.
- Respect the advocacy organisation's policies, especially referral policies and procedures and confidentiality policies recognising that difficulties may arise during monitoring processes where characteristics are noted and advocacy partners may not feel comfortable with this.
- In conjunction with the advocacy organisation draw up working protocols for referrals.
- Make sure your own staff can have the opportunity to understand the role of independent advocates and involve advocacy organisations, or organisations like the Scottish Independent Advocacy Alliance, in training on the role of independent advocacy.
- Make sure service information includes clear statements not only about your commitment to advocacy but also stresses the independence from Local Authority and Health Board services.
- Have a clear agreement on what will happen if there are difficulties that cannot be resolved between you as the commissioner, and the advocacy organisation.
Email: Sandra Falconer, email@example.com
Phone: 0300 244 4000 – Central Enquiry Unit
The Scottish Government
St Andrew's House