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Peter Edwards

Solicitor and Director

Friday, November 1st, 2019

Threats to effective advocacy

Peter Edwards, Solicitor and Director

Keynote address by Peter Edwards to the National Advocacy Conference 31 October NEC Birmingham

“No (effective) advocates. No rights.”

In opening today I would like to reflect on the vital importance of your role, whatever type of advocacy you practice. By the way, I am an advocate as well, a legal advocate, and we should have a lot in common.

As I approach my 50th year of seeking to redress the balance between the powers of the state and its focus to prevent risk I reflect on your and my role.

Tens of thousands of people have substantial difficulty in being fully involved in decisions relating to their treatment care and support. They should have a right to the support of an independent advocate. This right lies at the heart of the HRA the MHA the MCA and the Care Act.

Advocacy should promote equality, social justice, social inclusion and human rights.

It aims to make things happen in the most direct and empowering ways possible.

Those of you who have attended previous conferences will know of my concern that there is a real risk that the role of the advocate can become institutionalised and therefore potentially negated.

We must be conscious of this and resist it in order to retain the purity of the role of advocacy. We are not there to make the job of the state more comfortable.

In your programme you will see an article from Catherine Pease, a very experienced solicitor at PEL who will be well known to some of you. She writes of the experience of one advocate:

“I have been asked on numerous occasions what my view is in relation to someone’s treatment, or asked to attend professionals meetings without the service user present. I am always staggered at the lack of understanding by some professionals as to my role as an independent advocate and their surprise that I do not hold a clinical view on their required treatment. I was asked by a social worker / care coordinator to contribute towards a social circumstances report for a client’s forthcoming Tribunal hearing. The social worker was genuinely surprised when I politely declined and explained that providing information to strengthen an argument in favour of my client’s ongoing detention was definitely not part of my role as an IMHA”.

On the other hand, here is how a client of hers describes the value of independent advocacy –

“Having an independent advocate is important. When I was under section having someone who could advocate for me in an impartial way was invaluable. It helped to safeguard me when I was vulnerable. I felt the staff weren’t always treating me with my best interests. The IMHA could explain to me what was going on with the MDT. When you are in the psychiatric system you do not have a voice. Having someone that knows legally your rights and can put them to the MDT is very important. I think it’s an important safeguard. The mental health system is rife with poor care. If IMHAs aren’t independent this can lead to missed opportunities to report substandard care. It’s important to me as a patient that I feel I am listened to with an unbiased and non-judgemental view”.

One of the roles of IMHAs and IMCAs is to facilitate a challenge by the client. However Dr Lucy Series from Cardiff University estimates that the rate of appeal to CoP is fewer than 1% of people subject to a DoLS authorisation during 2017, and under 0.5% of DoLS applications overall. This compares with 47% of MHA detentions being challenged in the tribunal.

Another threat to effective advocacy is the way that you are commissioned. As Lord Bichard, the former chair of SCIE wrote in his introduction to the SCIE guide on advocacy:

“Good commissioning is about more than ticking a box. It is about complying with duties and targets with the genuine engagement of people who need care and support, as well as providers and voluntary, community and user-led organisations.”

One provider traditionally funded for generic advocacy work was asked to provide Care Act advocacy with no additional funding. In another area the Care Act advocacy work had been “lumped in” with a contract to provide information and advice services. In other areas, commissioners appear not to have made any link between the funding on offer and the numbers of people likely to be entitled to Care Act advocacy, and some areas were quoting commissioning arrangements based on two hours of advocacy time per Care Act case.

So how can we maximise the efficacy of advocacy?

Advocacy does not speak with one voice. What one RPR might think are grounds for appeal another would not. Where one IMHA would regularly support detained patients at mangers hearings, another would not. Where one advocate would think it necessary when supporting someone who lacks capacity to seek information from a number of sources including families, another would not.

Human rights and how they are applied should be done so consistently.

It is not easy and there is a danger that we allow state organisations to seek credit for promoting advocacy (as organisational websites often do) whilst at the same time making it impossible for the advocate to practice effectively.

I would suggest three of the areas of focus. I am sure you can add many more

Understand rights, fight risk averse practices and let us remind others of the existence of the word ‘happiness’

Understand the rights of those on behalf of whom you advocate. When ‘agents of state control’ make decisions, they have to follow procedures prescribed by law.
In the risk averse environments of health and social services, let us remember the words of Lord Justice Munby “What good is it making someone safer if it merely makes them miserable?” in MM and that prophetic phrase of Mr Justice Jackson in the Wye Valley case warning us of the “Danger of treating capacity as a cliff-edge off which one falls into the clinging embrace of paternalism.
To paraphrase Mr Justice Hedley ‘The purpose of the MCA is to enable those who lack capacity to enjoy life to the fullness that is potentially available to them. To live life to the full is always to incur risks. That seems to me a proper approach in regard to those who lack capacity even though it is the judge (or decision maker) rather than the person who is incurring and authorising the risk. I do not think we should be afraid of this for in my view it accords with any sensible philosophy of providing for the welfare of those who, through no fault of their own, are restricted in their ability to control their lives.

 

In other words let us focus our efforts on promoting rights, fighting risk averse practices and seeing the use of legislation like the MCA as a way of promoting happiness and wellbeing.