Publication - Advice and guidance

Independent advocacy: guide for commissioners

Published: 20 Dec 2013

Advice for commissioners on the provision of advocacy services under the Mental Health (Care and Treatment) (Scotland) Act 2003.

52 page PDF

512.3 kB

52 page PDF

512.3 kB

Independent advocacy: guide for commissioners
5. Commissioner's Statutory Responsibilities

52 page PDF

512.3 kB

5. Commissioner's Statutory Responsibilities

5.1 The Mental Health (Care & Treatment) (Scotland) Act 2003 Section 259 states that:

"Every person with a mental disorder shall have a right of access to independent advocacy; and accordingly it is the duty of-

(a) each local authority, in collaboration with the (or each) relevant Health Board; and

(b) each Health Board, in collaboration with the (or each) relevant local authority,

to secure the availability, to persons in its area who have a mental disorder, of independent advocacy services and to take appropriate steps to ensure that those persons have the opportunity of making use of those services."

5.2 The Code of Practice (Volume 1, Chapter 6, para 140) which supports the Act states:

"Where a patient has a degree of incapacity, or cannot for any reason clearly say whether or not they would like an independent advocate, an MHO/hospital managers/appropriate person should consider how an independent advocate may be involved…………The right of access to independent advocacy is for each patient and is not limited only to those who are best able to articulate their needs."

5.3 This right applies to everyone who has a mental disorder, and to all types of independent advocacy. The term mental disorder includes any person with a mental illness, a personality disorder or a learning disability. People with dementia and acquired brain injury are also covered by the Act. People do not have to have a medical diagnosis to access independent advocacy.

5.4 Commissioners thereby have a legal duty to ensure that everyone with a mental disorder in their NHS Board or Local Authority area can access independent advocacy. This duty applies to children and young people as well as adults. It also applies to people living in the community with a mental disorder who may be supported by a wide range of care providers in community settings and also prisoners and is not solely those who are detained under the Act's powers.


Stripped of pride and dignity

we've struggled for this day

The law to mandate patient power,

our right to have a say

A long time in the coming

Too soon to count the cost

of sanity held ransom

and the lives of friends we've lost

Tired of being overlooked

Sick of being mad

We're standing up for reason

and the rights we've never had

The power of lock and key

they've wielded, drugs and ECT,

must now be balanced

with the check of reciprocity

The principles enshrined in law

our welfare to protect,

and those to come who're subject to

the judgement of this Act

We've advocated wisely,

we're victors to the cause

We've stood up to insanity

and now WE'VE GOT A VOICE!

(Jo McFarlane, AWOL, 2013)


Email: Sandra Falconer,

Phone: 0300 244 4000 – Central Enquiry Unit

The Scottish Government
St Andrew's House
Regent Road