The recent MHA review raised some habitual criticisms around the provision and accessibility of advocacy, including specific concerns about “access, eligibility, quality and commissioning of advocacy services by local authorities.” Does this sound familiar?
We don’t need to step back in time too far to hear similarly depressing messages.
“The availability of independent advocacy is spasmodic and varies across England from authority to authority, dependent on local priorities and decisions”[1].
This was written in 2014, by the DH, prior to the implementation of the Care Act 2014 and was actually part of the case for increasing access to Independent Advocacy for people who needed support and representation through assessment, planning and safeguarding processes. Indeed, the impact assessment estimated that over 150, 000 people every year would access advocacy under the Care Act.
At the same time this was written, Cheshire West happened and the subsequent tenfold rise in DoLS authorisations had a monumental impact on the numbers of people requiring Independent Mental Capacity Advocacy (IMCA) support: we estimate that the total number of IMCAs instructed within DoLS processes during 2016/2017 exceeded 16,000[2] – rising from 2314 in 2013/14[3].
So with these huge forecasts in expected need we could expect provisions to have been put in place to ensure numbers were monitored and therefore access and capacity could be accurately understood moving forward. This would allow us to now assess the changes since 2014 and get our house in order in terms of access to advocacy, right?
But the truth is there has been little to nought monitoring activity undertaken or published. There is currently no national oversight or monitoring which looks at the commissioning or delivery of independent advocacy . Therefore, we simply do not know with any certainty how Local Authorities are discharging their statutory duties to provide Independent Advocacy to those who are entitled to receive it. We are concerned that Local Authorities knowingly underfund their statutory provision and then prioritise who gets advocacy – even though all the people they are prioritising have a right to advocacy.
IMCA
To try and provide some insight into the current situation we recently instigated a study. FOIs were sent to all Local Authorities in England. The results for 2016/17 were astonishing:
139 Local Authorities responded to requests about IMCA instruction – 51 of these confirmed they do not hold data on how many people access IMCA support
Despite a tenfold increase in DoLS authorisations, some areas witnessed a real term decrease in the number of times an IMCA had been instructed in 2016/17 compared to 2013/14[4].
The proportion of DoLS authorisations which included IMCA support and representation has dropped from a steady 18% (before Cheshire West) to an estimated 7.7%. This is significantly lower than government expectations.
An obvious theme running through the study was just how patchy the recording is across Authorities. There is an absolute lack of consistent recording of advocacy data with some Local Authorities not keeping any data on the number of people who use advocacy. This prevents any objective monitoring and scrutiny of how effective advocacy is being commissioned and delivered in the local area, and also prevents the formation of a national picture which could inform some systemic or policy intervention. We simply do not know if and how many people who should be getting an advocate are actually receiving one, this matters. Advocates are often the backstop in protecting people’s rights and accessing safeguards which ensure decisions and plans promote individual best interests, consider the person views and protects rights.
Where data has been collected, the results show massive variation between Local Authorities in how many IMCAs offer support within DoLS authorisations and how many times family members are offered advocacy support. One LA reported just 3 IMCA instructions despite processing 1700 DoLS authorisations whereas another provided over 800 IMCAs within 1100 DoLS authorisations. This is in part due to some Local Authorities focusing strongly on providing 39d IMCAs whose role is to support the unpaid representative as well as the person through the complex, wieldy and often confusing DoLS process. The data showed:
10 Local Authorities provided over one hundred 39d IMCAs each
22 had provided less than ten each
5 Local Authorities instructed zero 39d IMCA across 2016/17
Local Authorities are legally obliged to provide IMCAs under section 39d where the person or their representative requests one, or where the supervisory body simply believes it is helpful for an IMCA to be involved. This data shows tremendous variations in discharging these duties – which ultimately means that many people are likely losing out in their rights to advocacy, and your chances of being provided an IMCA are really down to the local authority you happen to live within.
Care Act
Access to advocacy under the Care Act is equally patchy and arguably even more uncertain. When we asked for data on advocacy under the Care Act, only 35 Local Authorities could provide limited data on how many times an advocate was instructed. The total number of times an advocate was provided under the Care Act in these 35 areas is less than 6000. Whilst these 35 authorities represent less than a third of all LAs, we would still have expected the numbers of advocates provided to be much higher; remember the DH estimated that over 150,000 people would use advocacy and allocated 67 million pounds to pay for this service in 2017/18.
The data also reflects confusion into what should be commissioned and for whom, leading to specific gaps in advocacy provision for eligible young people going through transition planning and young carers. Two LAs explained they do not commission at all for this group, instead arranging advocacy for young people through provisions arranged under the Children Act 1989. This is hugely problematic, not just because it arguably fails to discharge legal duties to arrange advocacy for young people under the Care Act, but children’s advocates will be trained experts within Children services – not the Care Act and all of its legal provisions. Out of 35 authorities returning data, advocates had worked with fewer than 15 young people during 2017/18 to help them navigate the difficult and complex transition assessment and planning process and only 5 young carers received advocacy support under the Care Act.
Some LAs explained they simply don’t commission for specific groups which has a significant impact on low referral levels for carers. One LA told us: “carers advocacy requirements would vary according to their needs and may be very specific and as such there is no commissioned service specifically for carers. There are a number of agencies that provide advocacy and carers would be signposted to the most appropriate service or alternative provision would be made under the terms of the Care Act”.
It is difficult to imagine all carers easily navigating the system to get an advocate through their own personal perseverance and signposting information from the organisations they initial contact. Incidentally the LA who told us about the signposting, also told us that an advocate was instructed to support a carer through a carers assessment on 0 occasions in their region.
Recording and monitoring
The Data we have collected raises worrying questions around commissioning, access and provision of statutory advocacy at the national level. However, in the absence of any national monitoring or data collection we are left blind in terms of understanding the joined up national picture of advocacy provision, which groups of people most need advocacy and how advocacy is meeting local needs. This has massive implications for future funding, planning and realising capacity, not least as IMCA regulations form part of the Liberty Protection Safeguards going through Parliament right now. We call for better reporting at local and national levels so rights to advocacy are realised for all people who need and are legally entitled to this support.
Advocacy is not a luxury, it is a right[5].
[1] DH 2014 pg 70 Impact Assessment: The Care Act 2014: Regulations and guidance for implementation
[2] Projected figure based on disclosed figures from a FOI request which yielded a response of 61% of LA’s
[3] DH 2014 The Seventh Year of the IMCA Service
[4] 4% of Local Authorities who responded to our FOI reported lower numbers of IMCAs post Cheshire West than before 2014
[5] said Norman Lamb in his foreward in the DH report The Seventh Year of the Independent Mental capacity Advocacy (IMCA) Service (2014)
I'm not surprised at all. When you see some of the Dols authorisations that go through, it is obvious some LA's have little understanding of the law, so assisting a challenge to it never even occurs to them.
I think that we all know that this is how Modern Britain works. If there's a performance management or reporting requirement, it is always used to show how well some or other government initiative is working out. If there isn't one, it's because it's really helpful for public bodies (central or local) trying to avoid accountability, study/research/scrutiny or lobbying for change.
Even more worryingly for those of us who are of a cynical bent, commissioners will look at the paucity of referrals as an indication of future need and commission accordingly. If we do not become better advocates for advocacy we may be left wondering where we were when we needed us most! To the barricades brothers and sisters, to the barricades!!!