CONSULTATION ON INDEPENDENT ADVOCACY – GUIDE FOR COMMISSIONERS

5. Commissioner's Statutory Responsibilities

5.1 The Mental Health (Care & Treatment) (Scotland) Act 2003 Section 259 states that:

"Every person with a mental disorder shall have a right of access to independent advocacy; and accordingly it is the duty of-
(a) each local authority, in collaboration with the (or each) relevant Health Board; and
(b) each Health Board, in collaboration with the (or each) relevant local authority, to secure the availability, to persons in its area who have a mental disorder, of independent advocacy services and to take appropriate steps to ensure that those persons have the opportunity of making use of those services."

The Code of Practice which supports the Act states:

"Where a patient has a degree of incapacity, or cannot for any reason clearly say whether or not they would like an independent advocate, an MHO/hospital managers/appropriate person should consider how an independent advocate may be involved…………The right of access to independent advocacy is for each patient and is not limited only to those who are best able to articulate their needs."

5.2 This right applies to everyone who has a mental disorder, and to all types of independent advocacy. The term mental disorder includes any person with a mental illness, a personality disorder or a learning disability. People with dementia and acquired brain injury are also covered by the Act. People do not have to have a medical diagnosis to access independent advocacy.

5.3 Commissioners thereby have a legal duty to ensure that everyone with a mental disorder in their NHS Board or Local Authority area can access independent advocacy. This duty applies to children and young people as well as adults. It also applies to people living in the community with a mental disorder and not solely those who are detained under the Act's powers.