CONSULTATION ON INDEPENDENT ADVOCACY – GUIDE FOR COMMISSIONERS

3. The importance of Independent Advocacy

3.1 Advocacy becomes an organised activity because:

• Some people in our society are more likely than others to be treated unfairly, either because of other people's prejudice, or their own vulnerability or both
• Some people have no connections to family or friends or the wider community who could support them
• For some people family and friends are part of the problem
• Some people may only have professional paid workers involved in their lives. No matter how good the relationship may be, or how well supported they may feel, situations can arise when the person's wishes are not what the paid worker may feel is the right way forward
• A paid professional may be constricted by their role, their legal responsibilities or by their employer.

3.2 In order to be completely on someone's side in this way, to support them to claim their rights and safeguard their individuality, it is important for advocates to be as free as they can be from conflicts of interest.

3.3 Advocates, whether paid or unpaid, must be clear that their loyalty lies with the person who needs advocacy, not to the agencies providing or involved in that person's care or to other significant people.

3. 4 The Mental Health (Care & Treatment) (Scotland) Act 2003 identifies that every person with a mental disorder (as defined under section 328 of the Act) has a right to independent advocacy. The Act places a duty on local authorities and the NHS to ensure that such services are available. For the purposes of the Act, independent advocacy is advocacy provided by persons other than a Local Authority or a Health Board responsible for providing services in the area where the patient is to receive care or treatment, or a member of those bodies or any other person involved in their care or treatment or in providing services to them. The Act also identifies the need for independent advocacy organisations to have policies in place to identify and manage/minimise the risk of any conflict of interest.

3.5 The Code of Practice Volume 1 for the Mental Health (Care & Treatment) (Scotland) Act 2003 provides additional clarification and states that provision of independent advocacy may be for one to one or group or collective advocacy. There are different models of one to one advocacy. The Code further states that: 'Any or all of the various types might be appropriate depending on the circumstances and personal preferences of the patient concerned.'

3.6 This guidance is designed to support Local Authorities and NHS Boards to ensure that they understand and comply with their duties and obligations under the 2003 Act. The guidance can also be applied when commissioning other types of advocacy support.

3.7 There are key factors which underpin good independent advocacy:

• advocacy groups should be firmly rooted in, supported by and accountable to a geographical community or a community of interest
• advocacy groups and those involved as advocates should be constitutionally and psychologically independent of local and national government
• advocacy groups should not be involved in the care or provision of other services to the individual who requires advocacy
• different approaches to independent advocacy are needed; there is no best model
• advocacy groups should maintain a clear and coherent focus of effort
• advocacy groups should undergo regular independent evaluation of their work, and commissioners should provide financial support for this.

3.8 Non-Independent Advocacy

3.8.1 It is important that whatever the setting advocates work in a clear, accountable and transparent way. Commissioners should also therefore seek to encourage the use of this guidance in the monitoring and evaluation of non-independent advocacy services and to identify the potential conflicts of interest, ways of managing these conflicts and also take action to enhance independence.

3.8.2 Commissioners should give consideration to the unique role of unpaid carers as care providers and equal partners in care when commissioning advocacy services. In order to avoid potential conflict of interest between carers and the people they care for, advocacy services for carers should be distinct from those provided to service users. This may be achieved through commissioning local carer organisations to provide a carer advocacy service, or by the appointment by an independent advocacy organisation of dedicated carer advocacy workers. Commissioners should also seek to encourage the use of the guidance for carer advocacy in the commissioning, monitoring and evaluation of carer advocacy services available from autumn 2013.