*Marge Simpson hmmmn noise*.
I’m trying to write a response to the government’s consultation on the draft guidance for the Care Act 2014. As I’ve written about before, there’s some really exciting stuff in the guidance: we’re seeing much greater recognition of core disability rights principles such as independent living and supported decision making. But, I have to say, the draft safeguarding guidance is absolutely atrocious. Remember how ADASS and the government recently complained about the lack of legal literacy amongst social care professionals? Well, this draft guidance is a prime example of that. Can you believe that the draft guidance on safeguarding didn’t mention the deprivation of liberty safeguards, rulings like Neary which clarify the limits of local authority powers to intervene when the relevant person or their family is objecting, nor did it mention the existence of the inherent jurisdiction (which local authorities are legally obliged to consider using in safeguarding cases – see paragraph 19 of Re Z). The Care Act 2014 goes to the trouble of specifying that financial abuse is a form of abuse, yet the guidance doesn’t even mention the potential for financial abuse by those empowered under Lasting Powers of Attorney or deputyships and the role of the Office of the Public Guardian. And don’t even get me started on the footnotes, inaccurate and misleading glosses on the law and the waffly language. Can I issue a general plea to lawyers and safeguarding professionals to take a look at this guidance and respond appropriately?
But, I digress. Today I want to take you on a mindbending journey to try to understand how advocacy provisions in the Care Act 2014 and the Mental Capacity Act 2005 (MCA) intersect. Why does this matter, somebody sensibly asked on twitter? Well, it matters because their roles are different and (in my view) the Care Act advocacy provisions are more powerful for a person who wants to challenge a care plan or being involved in developing it. Moreover, the impact assessment for independent advocacy under the Care Act estimates the number of hours of support that they’ll provide at 17. By contrast, Independent Mental Capacity Advocates under the MCA (IMCAs) were originally estimated to spend 4 hours with a person, but this was increased to 8 hours. In other words, in theory, Care Act Advocates (CAAs) will have more than twice as long to spend supporting a person in comparison with an IMCA.
Different roles of IMCAs and CAAs
The roles of IMCAs and CAA’s are distinct in various respects. In the MCA itself, the IMCA role is defined as ‘to represent and support persons to whom acts or decisions… relate’, and IMCAs have statutory powers to interview the person in private and to consult local authority and/or health records (s35 MCA). Regulations issued under section 36 MCA (‘general IMCA regulations’) make provision for IMCAs to support and represent the person ‘so that P may participate as fully as possible in any relevant decision’, to obtain and evaluate information, to ascertain their wishes, feelings, values and beliefs, identify alternative courses of action and request a further medical opinion if appropriate. The regulations (regulation 6) say that IMCAs ‘must determine in all the circumstances how best to represent and support P’. They must, so far as is practicable and appropriate, consult with the relevant person and those engaged in caring for him or in a position to comment on his wishes, feelings, values and beliefs, and ‘take all practicable steps to obtain such other information about P, or the act or decision that is proposed in relation to P, as the IMCA considers necessary.’ The IMCA must then ascertain the extent of support that has been provided to the person to help them participate in the decision, they must ascertain ‘what P’s wishes and feelings would be likely to be, and the beliefs and values that would be likely to influence P, if he had capacity in relation to the proposed act or decision’ and the available courses of action. They must then prepare a report for the decision maker including ‘such submissions as he considers appropriate in relation to P and the act or decision which is proposed in relation to him.’ IMCAs have powers to challenge ‘best interests’ decisions regarding the person, but – aside from in the (widely misunderstood and ignored) circumstances of s39D(8), there is no clarity about when IMCAs should challenge decisions made regarding the person. In particular, should an IMCA challenge a decision maker if they themselves agree with the best interests decision but the person they are representing doesn’t? Evidence submitted to the House of Lords Committee on the MCA suggests that at least some IMCAs are approaching this in terms of their own judgement of the person’s best interests, rather than the person’s own objections, and official statistics suggest that formal challenges by IMCAs are few and far between.
By contrast, the role of CAA’s is somewhat different. For a start, a CAA referral is based on a person having ‘substantial difficulty’ meeting the requirements of what is essential the test of mental capacity under the MCA. This means that a referral could occur when a person has ‘borderline’ capacity, unlike the MCA which requires actual incapacity. The draft guidance on advocacy (which I think is very good) envisages their role as being less about informing best interests decisions, and more about actively supporting the person to make the decision for themselves and participating in care planning. The draft CAA regulations specify that CAA’s must assist the person in understanding, retaining, using or weighing the information and communicating their decision. Most interestingly of all, the draft CAA regulations specify that the CAA must assist with ‘challenging the local authority’s decisions if the individual so wishes’, creating a much harder duty to help the person challenge decisions – and it’s not a duty which appears to hinge on the CAA’s own views of the person’s capacity and best interests. The regulations are also very much framed in terms of helping a person to understand and exercise their rights. There is also a standalone duty to challenge decisions made on behalf of a person who lacks capacity ‘if the independent advocate considers the decision to be inconsistent with
the authority’s general duty under section 1 of the Act (duty to promote the individual’s wellbeing)’. There’s no obligation to write a report, but the draft regulations say that the CAA may do so if they have ‘concerns about the manner in which the assessment or planning function has been exercised or the outcomes arising from it’.
I don’t know about you, but I think the CAA role is much further ahead of the IMCA role in terms of modern disability rights thinking. It’s explicitly framed in terms of rights, there are clear duties to support a person in their decision making, the situations when an advocate should challenge on behalf of the person are much more explicit and they are framed in terms of whether the person wants to challenge a decision. The regulations and guidance neatly stitch together the best elements of directed and non-directed advocacy, to allow for the fact that some people may be regarded as lacking capacity but still be able to express a clear objection to their treatment, whilst others may not be able to communicate to their advocate a desire to challenge a decision but the advocate needs to be empowered to take action if they have concerns. I recognise that many IMCAs may already practice like this, but it is so much better to have this clearly spelled out in the guidance and regulations. It takes advocacy back to its roots in working with the person, in accordance with their own perspective, and clearly steps away from advocacy as some kind of quasi-best interests assessor role.
There are going to be situations in which a person could potentially be referred to either an IMCA or a CAA (or both). It seems a bit daft to me to have both types of advocate, so presumably local authorities are going to choose one or the other, but which should they choose? First we need to set out the powers and duties to make referrals to IMCAs and CAA:
Section 67 CA 2014 creates a duty for local authorities to make a referral to a CAA where:
- It is carrying out a needs assessment or carers assessment, and/or it is preparing or revising a support plan (s67(3)); and
the local authority considers that, were an independent advocate not to be available, the individual would experience substantial difficulty in doing one or more of the following: (a) understanding relevant information; (b) retaining that information; (c) using or weighing that information as part of the process of being involved;(d) communicating the individual’s views, wishes or feelings (whether by talking, using sign language or any other means); and
- the local authority is not satisfied that there is a person ‘who would be an appropriate person to represent and support the individual for the purpose of facilitating the individual’s involvement’ who is ‘not engaged in providing care or treatment for the individual in a professional capacity or for remuneration.’
- a local authority proposes to make arrangements ‘for the provision of residential accommodation for a person (“P”) who lacks capacity to agree to the arrangements, or (b)for a change in P’s residential accommodation’, unless it is a matter of urgency or ‘the accommodation is likely to be provided for a continuous period of less than 8 weeks’; and
- the local authority is ‘satisfied that there is no person, other than one engaged in providing care or treatment for P in a professional capacity or for remuneration, whom it would be appropriate for them to consult in determining what would be in P’s best interests’; and
- (via s40(1) MCA) the relevant person has no Lasting Power of Attorney or deputy with the relevant powers and has not nominated somebody ‘as a person to be consulted on matters to which that duty relates’.
So, when would these duties overlap? It seems to me that the CA duty is much more expansive than the MCA duty in (at least) three core respects:
- The CA duty occurs for any kind of needs assessment or support plan, not just moves to accommodation for more than 8 weeks in duration;
- The CA duty is engaged by borderline incapacity, not just actual ‘incapacity’;
- The draft guidance on advocacy under the CA suggests that people who might be considered ‘appropriate’ to consult under the MCA might be considered inappropriate to facilitate a person’s involvement in care planning. In particular, the draft guidance on advocacy emphasises that a person is not ‘appropriate’ if they would be ill placed to facilitate involvement in assessment and care planning because of distance or their own understanding and ability, or if they express strong opinions without consulting the person, or – crucially – if the person themselves doesn’t want them to support them. The draft guidance makes clear that if they’re a carer they can still be consulted, but that’s not the same as playing a facilitative role in support planning. Meanwhile, the MCA seems not to envisage such limitations on who is ‘appropriate’ to consult, and it would appear that a person could be deemed ‘appropriate’ (and so wipe out the MCA IMCA referral duty) even if their view of a person’s best interests was at odds with the person themselves’ view, or if they were ill placed to facilitate involvement (as opposed to give their own view on best interests) or even if the person didn’t want them to be involved. And in addition, the MCA duty to refer to an IMCA is wiped out where there is an appropriately empowered person to make the relevant decision under an LPA or a deputyship (for obvious reasons: the local authority shouldn’t be making accommodation decisions at all in these circumstances). In other words, you could have a situation where there is somebody ‘appropriate to consult’ under the MCA, so not require an IMCA, but the CAA advocacy duty would survive it because they’re not ‘appropriate to facilitate involvement‘ which is a different thing altogether.
So, there will be a fair few situations where there is a duty to refer to a CAA but not to an IMCA. But, aside from these differences, there are going to be situations where either type of duty could have teeth – when a person is deemed to lack capacity, when an accommodation move is proposed and where there is nobody ‘appropriate’ to consult even on the MCA’s approach. Which type of advocate do you refer to then? Does one duty have priority?
I’m experiencing a certain amount of brainmelt at this point, so do bear with me… [I’m just going to leave that typo in there to illustrate that point]. I don’t think it’s at all clear from the statutes themselves which has precedent. Perhaps I’m missing some footnote or provision somewhere?
The first point to note is that the CAA duty is going to kick in earlier than the IMCA duty, because the CAA duty arises at the point of needs assessment, whereas the IMCA duty arises at the point at which an accommodation move is proposed. So in those cases, with the CAA already on the scene, I don’t think there’ll be a need for an IMCA. It might be argued that the MCA duty to refer to an IMCA still stands because there is nobody appropriate to consult, but I wonder whether the CAA themselves isn’t an appropriate person to consult? I know that they’re acting in a professional capacity and remunerated, but they aren’t ‘providing care or treatment’.
But, sometimes you might not spot that a person needs a CAA until later on (perhaps circumstances have changed, perhaps a person understood the assessment process but is struggling with care planning, etc). There might be situations where the point at which you notice the need for a CAA is the point at which an accommodation move is being proposed, what then?
*Marge Simpson hmmmmmmmmmmmn noise*
The IMCA duty hinges on their being no appropriate person to consult; if the CAA is an appropriate person to consult, then a CAA referral would extinguish the duty to make an IMCA referral. But I’m not sure the converse is true. As already discussed, the CAA role is much more expansive (and better resourced) than the IMCA role. And the duty to make a Care Act referral occurs when a person would have substantial difficulty in understanding, retaining, using or weighing the information or communicating their views. So if the IMCA is able to exercise their role in a way which alleviates this difficulty, then the Care Act duty might be extinguished, but the trouble is, the IMCA role isn’t (unlike the Care Act role, as set out in the regulations) explicitly about supporting understanding, retaining, using/weighing information and communicating, it’s about ascertaining the support the person needs to participate in the decision, ascertaining his wishes, feelings, values and beliefs and communicating these to the decision maker. Certainly some IMCAs do interpret their role as being about supported decision making (see this study), but their obligations to do so are far less clear cut. In addition, they are less well resourced than a Care Act advocate, so it might be that they simply don’t have the time to put into facilitating involvement which a Care Act advocate could. In other words, it is possible that an IMCA referral could extinguish the obligation to make a Care Act referral, provided they were able to adequately support the person’s decision making, but it’s equally possible that they might not be able to within the limits of that role.
So, I think that basically it’s going to come down to this: you need some kind of advocate who can meaningfully facilitate involvement in care planning and support a person to make a decision. This could be achieved by an IMCA within their role, although their role doesn’t explicitly require it and they may not be resourced for it and report writing might bite into this time. If it wasn’t being achieved by any IMCA, then you’d have to make a CAA referral. I think. What do you think?
Similar issues arise regarding safeguarding, although here we have a ‘clash’ of a duty and a power (rather than two duties). Section 68 CA creates a duty to make a referral to a CAA where:
- The local authority is carrying out a safeguarding investigation; and
‘were an independent advocate not to be available, the individual would experience substantial difficulty in doing one or more of the following’: (a) understanding relevant information; (b) retaining that information; (c) using or weighing that information as part of the process of being involved; (d) communicating the individual’s views, wishes or feelings (whether by talking, using sign language or any other means); and
the local authority is not satisfied that there is a person ‘who would be an appropriate person to represent and support the individual for the purpose of facilitating the individual’s involvement’ who is ‘not engaged in providing care or treatment for the individual in a professional capacity or for remuneration.’
Meanwhile, the ‘expansion of role’ regulations say that a local authority may instruct an IMCA if:
- the local authority proposes ‘to take or have taken, protective measures in relation to a person (“P”) who lacks capacity to agree to one or more of the measures’ concerning an allegation that P is being or has been neglected or abused; and
- the local authority is ‘satisfied, that it would be of particular benefit to P to be so represented’.
So, again, which of these provisions has priority? Do they wipe each other out? I think it’s pretty clear that if the local authority chooses not to exercise its discretion to make a safeguarding IMCA referral, the CAA duty will still stand. But what if the local authority is willing to make an IMCA referral?
I think there are two possible ways of reasoning about this. The first is the same as for accommodation – basically, it depends on whether or not the IMCA actually satisfies the CA requirement that the person is supported to make the decision and appropriately involved. It’s also going to be pertinent that the IMCA power kicks in at the point that protective measures are actually proposed, rather than the investigatory stage – which will be earlier, and is when the CAA duty arises.
The second way of looking at it focuses on the fact that the power to refer to an IMCA depends on whether it’s going to bring ‘particular benefit’ to the person. At present it undoubtedly would, because the alternative to an IMCA is (usually) no advocate at all. But once the CA is in force, the alternative to an IMCA is going to be a CAA, so what ‘particular benefit’ would an IMCA referral bring then? I’m not sure what ‘particular benefit’ an IMCA would bring over a CAA, given that the CAA’s role is more broadly drawn and better resourced than IMCAs. In other words, I’m not sure what the point is in a safeguarding IMCA referral, once the Care Act advocacy provisions are in force. Even a CAA could write a report if they were concerned that the local authority’s proposed course of action conflicted with the wellbeing principle.
And what about DoLS…?
Are you in brainmelt territory yet? If you’re not, let’s move on to DoLS. The MCA also contains various provisions for IMCA referrals when a person is subject to the DoLS. In these situations s39A and s39C IMCAs have a role which is quite similar to the relevant person’s representative, and 39D IMCAs play a role in helping the relevant person and their (unpaid) representative in understanding and exercising their rights and s39A IMCAs . I’ve written plenty of times before that I feel that the IMCA role under DOLS is different, because it should (in part) be about ensuring a person is assisted in understanding and exercising their Article 5 rights – including their right of appeal under Article 5(4). But the statistics suggest that these referrals aren’t happening when they should and that people still aren’t being assisted to appeal when they should be.
So, let’s say that a person’s needs are assessed and a support plan is drawn up that will involve some deprivation of liberty. Presumably the CAA referral has already happened during the needs assessment (or safeguarding investigation) stages. Can that same advocate then take on an IMCA role under DoLS? Generally speaking, it would make sense for them to, since they’ll already know the person and it will increase continuity of support (which the advocacy guidance points out). My initial concern was that if the CAA had played a central role in developing the support plan, how effectively they’d be able to step back and challenge it if the need arose. But on further reflection, the CAA role is so closely tied to supporting the person to make their own decisions, representing their wishes, feelings, values and aspirations (not ‘best interests’), to challenging when the person wants to challenge, that in theory a situation shouldn’t arise where the CAA has actively supported a support plan which the person themselves objects to.
…But, as an afterthought, it occurs to me that you might have a s39D IMCA referral to support the unpaid representative. There might be circumstances where the unpaid representative takes a different view to the relevant person regarding the support plan. In those circumstances, I’m not sure that it would be appropriate for the same advocate to have acted in the CAA role supporting the relevant person’s wishes and feelings, and then to act against those wishes and feelings when they’re supporting the representative. What do you think?
In summary, then…
The Care Act and the MCA contain powers and duties to make referrals to different types of independent advocate, whose roles are spelled out in statutes and regulations. The CA advocacy role is (in my view) much better than the IMCA role – it’s more in tune with modern human rights values, it’s more expansive, it’s more in keeping with traditional directed advocacy whilst making provision for where that’s not possible, and they’re better resourced to boot. The Care Act duties to refer to an advocate are more expansive than the MCA’s, and so there’ll be lots of circumstances when a person needs an advocate under the Care Act but not the MCA. But there are some circumstances where these duties overlap, and in those situations it’s not immediately apparent (to me) which type of referral takes precedence. I think that you could make either in certain circumstances, but unless IMCAs act in a way that also fulfills the Care Act advocacy role, then the Care Act duty to make a referral may not be extinguished by the fact an IMCA is on the scene. Basically, I think if you find yourself in circumstances where either statute could apply, I’d opt for the Care Act advocate. But there will be situations – primarily where decisions are being made by the NHS or where it involves serious medical treatment – where the IMCA role is all that’s on offer.
Maybe I’m missing something here, but why didn’t they just repeal the IMCA roles where they overlapped with Care Act advocacy, that would have made everything a lot simpler…