I used to receive information as an adult’s advocate/nearest relative, but recently multiple services have stopped sharing anything and say they ‘don’t have permission’. They also claim they haven’t been told about my role, even though nothing has changed. How do you challenge this, and how do you evidence your role when services deny knowledge of it?
Depends on your role - Nearest Relative OR as patients advocate - as these can be very different things.
And the consent of the patient to share information.
The role of NR is a function under the Act, and if the person is detained under Part 2 of the Act, that is a civil section, (2 0r 3) or there is a Guardianship order in place, then this triggers a number of rights and powers under the Act. For example the NR has the power of discharge from Section 2 or 3. How can the NR exercise this function/power if they are not provided updates?
If the person has decided not to share information with the NR, then hopefully the person has been informed that in doing so, this has removed a statutory safeguard.
The other power available is referrals to the MHRT. Again, how can you exercise this power if you do not have up to date information?
There is no specific lawful function for an informal advocate, though in certain circumstances it is best practice to consider the next of kin in circumstances where decisions are being made to withdraw medical live preserving treatment.
Thank you — that’s really helpful. I completely take the point about the NR’s statutory powers.
In the situation I’m looking at, the individual has given clear written consent for me to act in an advocacy role. What I’m trying to understand is how services balance two things at once:
- the NR’s legal duties and powers under the Act, and
- a position where information is withheld to such an extent that the NR cannot realistically exercise those functions.
I’m asking this in general terms because I’m trying to understand how the system is meant to work when consent, statutory roles, and safeguarding duties intersect. At the moment, information is being withheld on the basis that “there is no permission”, but that doesn’t seem to align with the documented consent that has been provided.
I can’t discuss personal details, but the permission is clear and documented. My question is really about the process: when an NR or advocate has documented consent, what should happen if services continue to refuse to share even the basic information needed for the NR’s statutory safeguards to operate?
That’s tricksy. If P is giving clear consent - although documented as such, that consent can be withdrawn at any time - then NR/advocate support should be facilitated by the care team.
I can only suggest that P and NR/advocates contact the keyworker directly, or go through PALS if that hasn’t helped. There has to be good reason for the care team to go against withes of P - safeguarding or withdrawn consent.
If I was the NR I would make a formal complaint to the hospital. I would insist on a timescale for their response, especially if the person is detained under a 2. I would ask why the hospital is not providing the necessary information for you to exercise your powers under the Act. Make specific reference to Article 5 of the Human Rights Act 1998, and express a concern that a mechanism handed down by parliament, ie the power of discharge from detention, is being flagrantly ignored.
If not satisfied with the response, then I would contact the body responsible for Inspecting the hospital. In Wales, Health Inspectorate Wales, in England, the Care Quality Commission. I would also copy your local MP into the complaint, as I have found that statutory agencies do not like any attention from the local MP. These issues tend to travel very quickly to the top of any department, meaning that doors previously closed, are opened.
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