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Catherine Pease – Consultant Solicitor Peter Edwards Law

I know their title gives it away but, surprisingly, not everyone seems to know, understand or acknowledge that IMHAs are just that – independent. Not only do they need to be truly independent, but it’s important that they must also be seen to be so.

So, why isn’t it always obvious?

I think one of the problems lies with the way in which mental health professionals view and treat IMHAs. One advocate gave me the following examples –

“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”.

Another IMHA told me about similar difficulties she faces when clinical teams don’t fully understand her role. She explained that she is sometimes asked to attend meetings in the absence of her client, not to tell them about forthcoming ward rounds, and not to inform them about their care and treatment plans “in case they get upset and cause trouble on the ward”.

The problem is that this kind of thing filters down to the patients. If the mental health professionals aren’t viewing IMHAs as being independent from the hospital, they will likely be sending this message to the patients.

As a solicitor, I have been on the receiving end of incredulous clinicians asking “Do you not realise that what you’re arguing for is not in your client’s best interests?!”.  I know many IMHAs who experience the same.

The Royal College of Psychiatrists, in one of the college reports available on its website, describes the importance of independent advocacy. Here are a few extracts –

The discrimination and stigma people with mental health problems and intellectual disability face in society can leave them disempowered, disadvantaged and vulnerable. They can be marginalised by society, often poorly informed as to their rights and excluded from key decisions that are made about their lives. The challenges they face are to have their voices heard, their views respected and their interests defended. Independent advocacy is an excellent way to ensure that an individual’s rights are upheld and that they get the care and treatment that they are entitled to.

It is crucial that advocates are independent from the people caring for and treating a patient. Effective independent advocates do not have conflicts of interest that might interfere with their ability to voice the concerns of their advocacy partner, for example, about the care and treatment they are receiving. People who are paid to care for or treat an individual have legal obligations.

Independent advocates facilitate the process to safeguard people who are vulnerable or discriminated against, or whom services find difficult to support. Sometimes people think that advocacy is about working in the best interests of an individual. In fact, sometimes the advocate is supporting an individual to do something that is not in their own best interests. Advocates do not have a legal duty to make decisions that are in the best interests of an individual. An effective advocate needs to challenge and question professionals when best interests are given as a reason for decisions made about their advocacy partner.

I’m not convinced that all psychiatrists have read it.

A related problem is when IMHAs come across, or allow themselves to be treated, as an extension to the multi-disciplinary team.

I was on one occasion forced to complain about an IMHA working with a client I represented, CD. The advocate didn’t appear to understand the requirement of independence in her role, continually referring to the ward staff as her “colleagues”. She didn’t understand my point when I questioned her choice of words. CD had no family or friends to support him (which, sadly, isn’t unusual). So who was going to help him fight his corner from hereon in? Not me. There were no remaining legal issues for which I could justify keeping my file open. That’s what prompted me to take the unusual step of complaining to the IMHA’s manager – I was nervous about leaving CD without any truly independent support. No matter what the professionals asked of him, he would always acquiesce, leaving him particularly vulnerable.

Sometimes experienced and well-meaning IMHAs act in a way which, without realising it, can lead the patients to question their independence. Examples include being given their own sets of keys so they can independently access various parts of the hospital, or waiting in a room with the members of the MDT ready for ward round as opposed to walking into the ward round with their advocate (the very person who is going to make sure their views are heard in there!).

One IMHA told me (about another IMHA)  –

“I witnessed her pushing the client notes trolley down to the ward round room in preparation for the day’s ward rounds. How can this possibly look independent to the service users?”

On the SCIE website, it identifies a number of requirements for IMHA services, including that IMHA services “must clearly define their role to ensure it is understood by people who use services, carers and mental health service staff”. It also states that “demonstrable independence from mental health services is essential”.

IMHAs play an extremely important role. That’s why it’s so important for the independence of IMHAs to be properly understood and to be demonstrated because, if it isn’t, we run the risk of service-users not availing themselves of this vital service. Often my clients don’t understand their rights under the Mental Health Act until they have seen an IMHA.  They can’t get their voice heard as they daren’t go into ward rounds alone, because they feel intimidated at the thought of walking into a room full of doctors, nurses, and often a variety of other faces they don’t recognise. They need help when their property is lost. They need toiletries because they weren’t given chance to pack before they were hauled into hospital, and don’t know what to do. They want leave, but don’t know who to ask. They want to complain about the way in which a member of staff has spoken to them.  All of these things make a real difference to a person’s experience of inpatient settings.

On a more concerning level, I recall a case in which an IMHA was able to step in and prevent ECT being given unlawfully (the RC hadn’t appreciated the importance of assessing capacity). The patient had not understood their rights until then. They just knew that they really, really didn’t want ECT.

In short, IMHAs can often be more beneficial to patients than solicitors. In fact, lots of detained patients never speak to a solicitor at any point during their admission.

Here’s how a client of mine 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”. DS

This all goes to demonstrate why potential barriers to patients receiving input from an IMHA, including any doubts over their independence, must be carefully avoided.

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