A Nearest Relative is concerned that the Independent Advocate appointed by the Local Authority is not representing the Patient’s wishes, as known by the NR. The NR has challenged the Advocate on the issue, but the Advocate is defensive and unco-operative. What options (if any) are there to get the Advocate replaced?
Hi, I’m assuming this is about an independent mental health advocate. The situation may not be as straightforward as the NR is describing. Advocates can sometimes be perceived as the ‘baddie’ when there are unresolved family dynamics at play. It is possible that the patient is saying one thing to their NR and another to their advocate. And sometimes people will say ‘don’t tell my mother this, because I’ve told her something different, but…’. If that’s what is happening, then the NR would describe the scenario you have outlined. In other words, it might not be the the advocate which is the problem here.
All speculation, of course.
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Is it curious, too, that the Local Authority have appointed an advocate if there is an involved family member or person who may be able to represent their relative in complex decision making? I am also thinking out loud and am very rusty in these matters, but it might be worth establishing why there is an advocate involved. And I agree with Nick about the complexity of family dynamics…
As a more straightforward answer to the question itself, how does a person go about requesting a change of advocate? I imagine if the LA has appointed them, they’d be a good place to start.
My experience of advocates is also sometimes as being somewhat unwavering which can be very disconcerting!
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Leaving aside the possible family dynamics. The advocate is involved because the MHA provides a legal entitlement to anyone subject to the MHA to be represented by an independent mental health advocate (IMHA). The system is meant to work as an opt out rather than an opt in, so anyone detained on a ward, subject to a community treatment order or guardianship should be offered the option of referral to the appropriate advocacy service for input from an IMHA. If the NR has concerns these can be raised with the advocacy service either informally or formally as a complaint.
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I am a Trustee of an Advocacy Charity in Scotland. I would expect someone in that position to raise and issue with someone in Management and if dissatisfied with the response involve the Organisation’s Complaints Procedure. These differences of Opinion will arise from time to time, and hopefully can be resolved satisfactorily
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If the person is detained they are entitled to an Independent Mental Health Advocate (IMHA) even if they have family involved . It sometimes is that the the IMHA has been asked by the person not to speak to family. Family sometimes think that the IMHA is not sharing information but if the person has capacity the IMHA is instructed by them not the NR.
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Yes I think the issue is that P is saying one thing in hospital where he feels insecure and hopeless that he will get out, and another thing on the 'phone to his family - or at home when he has been allowed a home visit. (In another case I know of, all contact is supervised by hospital staff, and P is reluctant to say anything to displease them, fearing that it will affect how he is treated when the visitor has gone.)
The family feel that the IMHA is not looking past surface appearances. I have only heard from the family, I do not know what the IMHA says about this. The hospital and local authority claim that P is not able to live safely at home, and that he does not have mental capacity to decide where to live. The family suspect that the IMHA is eliciting the views of the hospital and local authority through P. This could be happening also with a solicitor appointed by the Mental Health Tribunal to represent P.
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If the local authority have carried out an assessment and found him to lack decision making capacity for an accommodation decision then they need to move to making a decision in his best interests and recording this as such. They should follow guidance set out in the Mental Capacity Act Code of Practice and arrive at the best interest decision following consultation with the person, any other interested parties (including advocacy) and family members unless family are deemed ‘inappropriate’ to consult.
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Hello Barry, I would say that the family are possibly correct that the advocate is being used by the hospital/council to push through an already decided decision (that P should not live at home). This is likely, common practice with council funded advocates (one possible reason why council’s employ them). If P is in a psychiatric unit then the family will have very limited ‘private’ access to talk to him and staff are always listening (I have experienced this personally) but the council advocate (and SW or other staff) can talk to him whenever they like and in ‘private’ from the family’s ears. This is how capacity tests are carried out and the outcome of these is often open to question as well. Manipulation of vulnerable patients by social services happens (I know from personal experience) and this is hard for family to stop (or prove). Best interests decisions can serve the same purpose, to push through NHS/council decisions. All very tricky and the cause of so much worry, heartache and stress to relatives and the patients. There is a power imbalance in the system which gives NHS/Councils too much control and family/patients too little. Whole thing needs opening up with full genuine transparency with family given proper authority equal to state power. The family need to get their own solicitor now to fight the tribunal appointed one.
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I’m having a similar issue, where the Litigation Friend for P (under the MCA) insisted that they knew what was best for P and point blank refused to represent P’s own views to the court. The judge was very relaxed about P’s (loudly expressed) views being ignored. I’m looking into a complaint to the Solicitors Regulation Authority.
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I am not liking the viewpoint that LAs employ advocates to ‘push through’ their decisions.
I am an IIMHA, and an Independent Care Act Advocate and there is no possibility I would agree with a LA decision over my client’s own viewpoint, and none of my colleagues would be doing so either.
If a Best Interest meeting is held at which the attendees are asked whether they agree with the decision made, I will always respond with the information that it is not part of my role to agree or disagree and I am only there to represent my client’s wishes, which I would then reiterate.
Unfortunately, the process/right to appeal a decision was not, in the end, included in the Care Act, as it had been intended to and the only means to object is through a ‘feedback’ form, but that is a different issue.
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To add to Chris Dack’s comments, statutory advocates such as IMHAs, IMCAs and Care Act advocates are not employees of the local authority. They are commissioned by the local authority as required by the relevant legislation, but they are employed by independent advocacy organisations which in my experience fiercely defend their independence.
I may sometimes have had concerns in the past on the role that advocates have played, but it has generally been a concern that they have at times overstepped their role, rather than act as a vehicle for the council’s decision-making.
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I think that the lack of accountability of the advocate/ litigation friend/ relevant persons representative/ IMCA is a significant issue. In the case in which I was involved, they used their independence to do as they thought best without any regard to P’s wishes & feelings or P’s rights under the MCA or Human Rights, and insisted on overly restrictive arrangements directly against P’s wishes & rights.
There was no oversight and no way to bring them to account, nor even to get them to explain why they considered their actions to be in P’s best interests. They just said they knew best.
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I’ve been following this thread for a while and only got involved this morning. I think the answer is pretty straightforward, and at the same time quite problematic.
There are often conflicts of interest between different people in these circumstances (patient, family, NR, care team, including within the MDT)
It is important that people are clear what is the advocate’s role.
For standard directed advocacy, it is to represent the patient’s (or service user’s) wishes and act as their spokesperson, as they are likely to be less able to express their wishes due to the illness or impairment they are experiencing.
This may well be against the wishes of the family or carers, and often against the views of the NHS or local authority.
If the person lacks capacity, and the advocate is acting in an IMCA role (under the Mental Capacity Act), then (in non-directed advocacy) the advocate has a duty to support the person through the process, ensure their voice is heard, and ensure that the statutory decision-making process is followed. Again, this may not go down well with other network members (professionals or otherwise).
Any concerns that the advocate isn’t working to their remit should be addressed to the advocacy organisation, ideally after raising it direct with the advocate. As the commissioner of the service (I repeat this is the statutory requirement), a complaint to the local authority would seem to be in order.
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Thank you Chris and Steve.
In addition I would add the role of Litigation Friend is quite distinct from the roles of independent advocacy already outlined. The role of LF in the court of protection is to ensure the person’s views/wishes/values/beliefs are brought before the court, to promote the person’s (P) participation in the case (maximising capacity and involvement), to conduct the case on P’s behalf (as they will have been assessed as lacking capacity on this decision - hence it is before the court - and in most circumstances, unable to litigate for themselves, although we cannot assume this). They may also access legal aid and instruct a solicitor. The LF is there to also there to assist the court, and to come to a conclusion about what they believe to be in the best interests of the person (with evidence), even if this is not in agreement with the P’s views. In this regard, this latter point underlines how the role of LF is very different from independent advocacy, and is a very difficult and challenging role. If you are involved in a court case like this as a family member, there is nothing to stop you becoming a party to proceedings, or making your own submissions to the court. Family members can also ask to be the LF in these cases.
As regards family having more power in decisions, the right to make one’s own decisions is a fundamental right, one that is strengthened by independent advocacy when people find themselves disadvantaged by clear power imbalances, and this can not only include NHS/LAs but also at times family members. I am not saying here that families have ulterior motives when most clearly do care, but at times family/friends can be overwhelmed by their own emotional involvement, and as such promote their own wishes/views./worries/fears rather than the persons. Unfortunately we are involved in cases when family do have these motives. As a long-time advocate myself, all my training and experience, promotion of the person’s views, etc, can (understandably) fall by the wayside when it comes to issues involving my close family/friends. It is difficult to promote my father’s views around his mental health, when I know his choices will have serious consequences for my mother’s wellbeing.
If you feel you should have more say, and crucially the person concerned agrees with this viewpoint (and has capacity on the issue) there are mechanisms in place that can promote this, and the person concerned can apply to the Office of the Public Guardian for LPAs for health/welfare and/or Property/Affairs. If the person lacks capacity on these issues, then family can apply direct to the court of protection for Deputyship.
All independent advocates have to achieve qualifications on advocacy generally, and their specific area of expertise to be able to practice. As already mentioned, if you are struggling with understanding the role of advocacy, you are within your rights to ask for an explanation of how they operate, even if they cannot go into specifics of the case (it is confidential, they may have been told not to by the person themselves not to discuss it for example). If you feel the advocate is acting unprofessionally, not in line with the Advocacy Charter, then their are complaints mechanisms open to you.
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The IMHA is employed by one of the main advocacy agencies. Fierce independence (distancing from the family) and objectivity might be part of the problem. It is suspicious that the views of P as reported by the IMHA are aligned with those of the hospital and LA, and different from those which P expresses directly to his family.
In a completely separate case (in Scotland) the IMHA reports that P does not want his mother to visit (until he is released) but does want her to be his Named Person. Because of this the hospital is refusing family visits and involvement in CPA meetings, claiming they must uphold P’s wishes (but not his wish to leave hospital). The IMHA is not looking behind P’s inexplicable bald statement which conflicts with the close bond with his mother.
Hello All, I would not want to say that ‘all’ advocates are bad or any other person involved in these disputes are not acting properly but it does happen and when it does it causes lots of problems. My own personal experiences with the system have informed my views on this I am sorry to say; previously I was much more trusting of NHS/Council/legal systems but not anymore. To all the good guys/gals who do try and genuinely help, keep on doing it.
Many thanks for your engagement and description of how the process should work, but unfortunately it did not work in this MCA case, because the RPR/LF point-blank refused to pay attention to what P wants, or represent P’s wishes to the court or to offer any explanation. The RPR/LF said their role was to recommend what was in P’s best interests, not to represent P’s views to the court.
Naturally I understand about people having different views, family dynamics, that P might be saying different things to different people etc., but in this case the views P is expressing are consistent with their views prior to their loss of capacity, and have been documented repeatedly in care notes.
I raised the issue with the local authority (LA) who said, in effect, that they were happy. The LA kept reappointing this same RPR for each new DoLS.
The court case has now finished, so I have lodged a complaint with the mental health organization employing the RPR/LF, and may also complain to the Solicitors Regulation Authority regarding the litigation friend’s solicitor.
I have acted as a paid RPR in relation to a person subject to a DoLS authorisation, although I am not a trained advocate. I was appointed specifically due to the person’s objection to their placement and with the knowledge that an appeal to the Court of Protection under MCA s21A would be necessary. I acted as the person’s litigation friend throughout the proceedings.
It is important to know that a litigation friend is not an advocate. Their role is not simply to advocate on behalf of the person, and there is various case law to back this up.
For someone lacking capacity to litigate, the litigation friend is expected to act in the person’s ‘best interests’.
This can create a tension between the person’s Article 6 rights to a fair trial and their Article 8 rights to private and family life.
In the case I was involved in, I was of the professional view that the risks of the person returning to the community were far too great and it was in their best interests to remain in 24-hour care.
However, I supported the application to the court, and ensured the court understood the person’s wishes and feelings. I was able to state that I was unable to support their argument myself.
And current guidance states the litigation friend is not required to argue an ‘unarguable case’.
However, as the Court of Protection Handbook states, “in all cases that a litigation friend acts for P…although they do not act as their advocate, it is vitally important that they take all necessary steps to relay P’s wishes and feelings to the court upon the relevant issues in the case.”
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Thanks SteveC. I shall use the quote from the Code of Practice 
In this instance the advocate was offered a large body of evidence of P’s past and present wishes and feelings (written messages, audio & video recordings, care notes, witness statements) which gave a very clear picture of what P wants P has been incredibly verbal and consistent on what they want, given their loss of capacity and other challenges. The advocate ignored all of it, and blandly said to the court that it’s difficult to ascertain what P wants. Sigh.