Advocacy under the Care Act Slides to accompany taught sessions

Advocacy under the Care Act

Slides to accompany taught sessions

About the course

This course is for people who want to learn how to deliver advocacy support introduced under the Care Act 2015.

It supports the delivery of Unit 313 Providing Advocacy under the Care Act*:

*(City & Guilds 3610 Certificate and Diploma in Independent Advocacy)

The Care Act 2014

What is well being?

Wellbeing

The Care introduces principles of wellbeing and prevention and the recognition that an individual, their family, and/or carer must be enabled to make decisions regarding their own care.

This means that local authorities will need to refocus their activities from providing ‘one- size-fits-all’ services to promoting wellbeing by paying attention to people’s strengths, personalities and connections with the places they live.

What is wellbeing?

Having a sense of PERSONAL DIGNITY

Having good PHYSICAL AND MENTAL HEALTH

(EMOTIONAL WELLBEING)

Being PROTECTED FROM ABUSE AND NEGLECT

Having CONTROL OVER my DAY TO DAY LIFE

Being able to PARTICIPATE IN WORK, EDUCATION,

TRAINING OR RECREATION

Having a sense of SOCIAL AND ECONOMIC WELLBEING

Being able to experience DOMESTIC, FAMILY AND PERSONAL RELATIONSHIPS

Having suitable LIVING ACCOMODATION

Being able to CONTRIBUTE TO SOCIETY

Advocates and wellbeing

• How can an advocate support a person to establish their own definition of wellbeing?

• What are effective questions to use to help the person think about what promotes and what threatens their wellbeing?

• How does this change if they cannot clearly instruct you or do not understand ‘wellbeing’?

Eligibility

Who is eligible under the Care Act to receive

Independent Advocacy support?


The duty to provide independent advocacy applies to:

• Adults who need care and support• Carers of adults (including young carers) • Carers of children in transition• Children who are approaching the transition to adult services

during the processes of assessment, care and support planning, care and support review, safeguarding enquires and safeguarding adult reviews


But not everyone is entitled to an independent advocate. Two conditions must be met:

• The person has substantial difficulty in being fully involved within assessment, care and support planning and review or safeguarding AND

• There is no one appropriate and available to support and represent their wishes

Lets look at ‘substantial difficulty’ and ‘who is appropriate’ in more detail….

Substantial Difficulty

The Care Act defines four areas, in any one of which, substantial difficulty might be found. These are:

• understanding relevant information • retaining information • using or weighing up the information (as part of being

involved in the key process) • communicating their views, wishes and feelings.

Appropriate to support?

The local authority must decide if the individual has anyone who can facilitate their active involvement within the decision making process

It is not enough to know the person well, or to love them deeply, the role of the appropriate person is to support their active involvement. Paid people cannot undertake this role.

Not everyone can do this….

Appropriate to support?Individuals may not have anyone appropriate to support their involvement because they do not have family or friends who:• Know them very well• Agree to offer this support• Are able to offer this support (they themselves could have a

learning difficulty or dementia which prevents them from offering support)

• Are appropriate (they are suspected of abusing the person)• Are not able to help the person put forward their own view

(they have strong feelings and views on what the decision should be and do not support the person to express their aspirations)

That’s not all….

The local authority must arrange an Independent Advocate, even if the person has someone appropriate where:• A placement is being considered in NHS funded provision in a

hospital (for a period exceeding 4 wks) or a care home (for a period exceeding 8 wks) and the LA believes that it would be in the best interests of the individual to receive advocacy

• There is disagreement between the LA and the appropriate person, and they both agree that the involvement of an independent advocate would be beneficial to the individual

In addition, there are proposals to offer independent advocacy to people who wish to appeal against the LA decision

The Advocacy RoleIndependent advocates will offer support to the person in:

• Understanding processes • Understanding rights• Making decisions• Communicating views, wishes and feelings• Understanding plans• Challenging decisions• Accessing records

Supported Decision Making

Supported decision making

• A model to support people to make their own decisions• Draws on people (natural allies) to offer support• Advocates can play an important part• You support the individual to gather, understand and consider

information they feel is relevant• Goal is for the person to make the decision

Supported decision making

Is important because it:• Promotes rights (UN Convention on Rights of People with

Disabilities)• Helps people to take risks• Recognises that you know what is best for you• Helps people to take control of their life

Substituted decision making

• The Mental Capacity Act provides a framework for others to make decisions when a person is unable to make some or all decisions for themselves

• 5 guiding principles

• There are some concerns that the MCA is not compatible with the UNCPRD

Example of practical resource

• Think Local Act Personal have produced a booklet advocates can use with individuals when using supported decision making

• http://www.thinklocalactpersonal.org.uk/_library/Resources/Personalisation/london/Supported_Decision_Making.pdf

http://www.thinklocalactpersonal.org.uk/_library/Resources/Personalisation/london/Supported_Decision_Making.pdf




Assessment

The Advocacy Role within the Assessment Process

What is the assessment process

An assessment is how a local authority decides whether a person needs care and support to help them live their day-to-day life.

The assessment must be carried out by an appropriately trained assessor, for instance a social worker, who will consider a number of factors, such as:• the person’s needs and how they impact on wellbeing – e.g a

need for help with getting dressed or support to get to work• the outcomes that matter to the person – for example,

whether they are lonely and want to make new friends• the person’s other circumstances - for example, whether they

live alone or whether someone supports them

What are the requirements for assessment?

The assessment:• must be provided to all people who appear to need care and

support, regardless of their finances or whether the local authority thinks their needs will be eligible

• must be of the adult’s needs and how they impact on their wellbeing, and the outcomes they want to achieve

• must be carried out with involvement from the adult and, where appropriate, their carer or someone else they nominate, including an independent advocate

Additional requirements:

• The local authority must consider other things besides services that can contribute to the desired outcomes.

• The assessment must be appropriate and proportionate

• Assessors must have appropriate training, for instance experts should carry out complex assessments such as for people who are deafblind.

• If the person agrees and has capacity, they may also carry out a self-assessment, where the person takes the lead in identifying their needs and outcomes.

Trudi lives at home with her husband who provides care and support for most of her needs. She is unable to get out of bed and uses the only downstairs room as a bedroom. She is having an assessment after a neighbour called the local authority and asked for help.

John has fluctuating needs and is looked after by his son who has mental health needs. They get on very well together and appear to be asking for the same things: respite support and employing a PA to help with cooking and cleaning

Krista is the early stages of dementia. She can communicate well but has some problems remembering information. Her son contacted the local authority to ask

for help after Krista scolded herself and kept forgetting to turn the oven off.

Ruth is 78 years old and lives alone in a house that she used to share with her husband (who died 6 months ago). She suffers from serious respiratory problems, is frail and has

restricted mobility. She has been referred by the GP for pulmonary rehabilitation but her care needs are being assessed because the GP has expressed concern about her ability to

continue to manage at home on her own.

Felipe is 42 and has motor neurone disease (MND). Whilst he has full mental capacity the MND makes communication very difficult. He has requested an assessment as he feels his needs have recently increased. He has a clear idea about his needs and how these can be

met and is meeting an advocate to help him express these.

Eligible needs

In considering whether an adult with care and support needs has eligible needs, local authorities must consider whether:• The adult’s needs arise from or are related to a physical or

mental impairment or illness.• As a result of the adult’s needs the adult is unable to achieve

two or more of the specified outcomes (which are described next slide)

• As a consequence of being unable to achieve these outcomes there is, or there is likely to be, a significant impact on the adult’s wellbeing.

An adult’s needs are only eligible where they meet all 3 conditions

Outcomes

• Maintain and maintaining nutrition• Maintain personal hygiene• Managing toilet needs• Being appropriately clothed• Being able to make use of the home safely• Maintaining a habitable environment• Developing and maintaining relationships• Accessing and engaging in work, training, education or

volunteering• Making use of facilities and services in local community• Carrying out caring responsibilities

Carers (eligible needs)

The Act also introduces a national carers’ eligibility threshold as carers can be eligible for support in their own right regardless of whether the person for whom they care has eligible needs. Carers will be eligible for support if:

• they have needs due to providing necessary care for an adult• as a result of those needs they are unable to achieve one or

more specified outcomes (see next slide) or their health is (or is at risk of) deteriorating; and

• as a consequence there is a significant impact on their wellbeing.

Outcomes (carers eligible needs)

• Carrying out any caring responsibilities the carer has for a child

• Providing care to other persons for whom the carer provides care

• Maintaining a habitable home environment• Managing and maintaining nutrition• Developing and maintaining family or other significant

personal relationships• Engaging in work, training education or volunteering

Following assessment (eligible needs)

The person must be given a copy of the assessment. A copy must also be shared with anyone else the individual requests the local authority to share a copy with.

If the local authority is required to meet needs or decides to do so it must:• prepare a care and support plan or, or support plan,• tell the person which (if any) of the needs that it is going to

meet in the person’s case may be met by direct payments, and

• help the person with deciding how to have their needs met.

Following assessment (ineligible needs)

If the local authority has completed the needs or carer’s assessment but is not required to meet those needs and decides not to, it must give the person concerned• written reasons for not meeting needs,• advice and information about what can be done to meet or

reduce the needs;• what can be done to prevent/delay development of needs in

the future.

The advocate can remain involved under the Act to help the person understand the decision, support a person who wants to appeal or to challenge the decision if the advocate feels the process or decision was not in line with legislative frameworks.

Making the advocacy offer

• At the point of first contact, the local authority must consider if the person should be offered advocacy support

• If local authority decides the person is not eligible they should provide the person with information about this decision and where to go for further advice

Care and Support Planning

Advocacy role within the care and support planning process

Person centred planning

Under the Care Act, care planning can be undertaken in flexible and proportionate ways led by the adult concerned. It can be undertaken by the adult themselves, their carer, family or friends, or by a specialist broker or support organisation as requested/ organised by the person accessing services.

However, whilst the care and support plan can be worked on by any of the above people in conjunction with the Council, the decision as to the appropriateness of the plan (sign-off) rests with the Council.

Person centred care and support planning

• Everyone’s needs for care and support are different, and needs can be met in many different ways

• The process must involve the the person, any carer they have and any other person they ask the authority to involve, including the advocate

• The local authority must produce a plan that sets out the detail of what was agreed.

Personal budget

Plans must include information about the personal budget

Local authorities must provide information to the person about their right to request direct payment – and which eligible needs the DP can be used against

Meeting needs

Meeting needs’ is an important concept under the Act and moves away from previous terminology of ‘providing services’

Some examples of how the LA can meet needs could include:• the local authority directly providing some type of support,

for eg a reablement or short-term respite service;• the local authority arranging for a care and support provider,

for eg by commissioning or contracting with a provider;• making a direct payment, which allows the person to

purchase their own care and support; or• some combination of the above

What is included within the plan

The following elements must always be included in the final plan. • the needs identified by the assessment;• whether, and to what extent, needs meet eligibility criteria;• the needs that the authority will meet, and how it will do so;• for a person needing care, which of the outcomes care and

support could be relevant;• for a carer, the outcomes the carer wishes to achieve,• the personal budget• information and advice on how to reduce needs or delay the

development of needs in the future;• Information on the direct payment

Planning for people without capacity

• Principles of the Care Act and Mental Capacity act apply if the person lacks capacity

• Capacity must be assumed unless otherwise established• All practicable support must be offered • People have a right to make unwise decisions• Decisions must be taken to promote best interests

Role of advocate

When supporting a person who lacks capacity to agree or consent to the care plan, the role of the independent advocate is to:• support and represent the person to facilitate their

involvement in decision-making in the care planning process;• assist the person in communicating their wishes, feelings,

value and aspirations where possible; and• to challenge the local authority’s decisions if necessary to

represent the person’s wishes or to promote the person’s wellbeing and rights to security, liberty and family life.

Deprivation of Liberty

Advocates will need to:• Check compliance with principles of the MCA• Check if any restrictions or restraints lead (or may lead) to a

deprivation of liberty• Raise concerns directly with the LA if they are concerned

there is a risk of deprivation of liberty which has not been authorised

• The advocate may make an application to the COP

The advocates’ role within planning

Potentially 4 approaches the advocate can take:

Instructed:• Supporting a person to write the plan themselves• Representing a person (with capacity)

Non instructed:• Representing a person (without capacity)• Gathering information to inform the plan on behalf of the

person (without capacity)

What people want in care and support planning taken from TLAP

The process from assessment through to review is transparent and clear. I know what to expect and when to expect it, and people do what they say they will do.

Can an advocate help deliver this?

What people want in care and support planning

If I need help to plan, I can choose who supports me to plan and put the plan into practice.



People who support me to plan have a flexible, open, honest, positive, solution-focused attitude



I am trusted to write my own care and support plan with whatever help I need



I can involve friends and family if I choose



I have all the information I need to plan, when I need it, in an accessible way, including signposting to what is available locally



I am supported to take risks, and know it is okay to make mistakes and change my mind



My care and support plan is about the whole of my life and not just about assessed needs or money



I am encouraged and supported to think creatively about ways to achieve my outcomes



My review is person centred, focused on me and my life, my outcomes and what is working and not working, not just the money. Through my review I can also contribute my views to improving the system.


Review process

Advocacy role within the review process

Review processes

Reviewing plans regularly is an essential element of the planning process.

Without a system of regular reviews, plans can become quickly out of date meaning that people do not obtain the care and support they require to meet their needs.

Review processes

Plans must be kept under review

- First reviewed (‘light touch’) review after 6-8 weeks of being agreed

- No later than 12 months (planned review)

- Can be requested (unplanned review)

Good review processes (1 of 2)

The review should be a positive opportunity to consider:

• Have the person’s circumstances and/or needs changed?• What is working in the plan, what is not working, and what

might need to change?• Have the identified outcomes been achieved or not?• Does the person have new outcomes they want to meet?

Good review processes (2 of 2)

The review should be a positive opportunity to consider:

• Does the personal budget meet their needs and outcomes • Is the current method still the best one option what they want

to achieve, e.g. should direct payments be considered?• Has there been any changes which might mean they are at

risk of abuse or neglect?• Is there a need to request a re-assessment

Safeguarding

The Advocacy role within Safeguarding processes

Safeguarding

The Care Act puts adult safeguarding on an explicit statutory footing Each local authority must: – set up a Safeguarding Adults Board (SAB)– make enquiries, or cause others to do so, if it reasonably

suspects that an adult is subject to, or at risk of, abuse or neglect

– arrange, where appropriate, for an independent advocate to represent and support the adult

When do duties apply?

The safeguarding duties apply to an adult who:• has needs for care and support (whether or not the local

authority is meeting any of those needs) and;• is experiencing, or at risk of, abuse or neglect; and• as a result of those care and support needs is unable to

protect themselves from either the risk of, or the experience of abuse or neglect.

What is abuse?Exploitation, in particular, is a common theme in the following list of types of abuse and neglect.• Physical abuse• Domestic violence• Sexual abuse• Psychological abuse • Financial or material abuse• Modern slavery• Discriminatory abuse• Organisational abuse• Neglect and acts of omission• Self-neglect

Safeguarding Enquiry

Where a local authority has reasonable cause to suspect that an adult has care or support needs or is at risk of neglect or abuse and is unable to protect themselves from neglect or abuse, it must make whatever enquiries it thinks necessary (or cause, by instructing, others, to make enquiries), to inform decisions about what actions should be taken and by whom.

Aims of safeguarding

The aims of safeguarding are to:• establish facts;• ascertain the adult’s views and wishes;• assess the needs of the adult for protection, support and

redress and how they might be met;• protect from the abuse and neglect, in accordance with the

wishes of the adult;• make decisions as to what follow-up action should be taken

with regard to the person or organisation responsible for the abuse or neglect; and

• enable the adult to achieve resolution and recovery.

Safeguarding Review

Local authorities must carry out a review of an individual’s care and support where

- there is reasonable cause for concern about how the SAB, members of it or other persons with relevant functions worked together to safeguard the adult where an adult has died and and the SAB knows or suspects that the death resulted from abuse or neglect

OR - if the adult has not died, the SAB knows or suspects the adult

has experienced serious abuse or neglect

Advocacy role

In terms of safeguarding, an advocate can assist a person to:• Decide what outcomes/changes they want• Understand the behaviour of others that are

abusive/neglectful• Understand which actions of their own may expose them to

avoidable abuse or neglect• Understand what advice and help they can expect from others

(inc criminal justice system)• Understand what parts of the process are completely or

partially within their control• Explain what help they want to avoid reoccurrence and also

recover from their experiences

Modern context of advocacy

How does advocacy under the Care Act interact with other

forms of advocacy?

Modern Context of Advocacy

•Right when making a complaint under the Children Act 1989Children and Adoption Act 2002

•Duty to instruct to represent a person lacking capacity and unbefriendedMental Capacity Act 2005

•Offers support to ‘qualifying patients’Mental Health Act 2007

•IMCA instructed to represent a person subject to DoLS authorisationDeprivation of Liberty Safeguards (2009)

•Right when accessing and using the NHS complaint systemNHS complaints•Available to people who face substantial difficulty and have no-one appropriate to supportCare Act 2014

•Advocacy has a long tradition of supporting vulnerable or seldom heard groups (carers, people from BME groups, LD etc)Non statutory advocacy

When is an IMCA instructed?

The LA/NHS must consult the IMCA where• a decision is being made about either serious medical

treatment or long term moves and • the person does not have capacity to make that decision and • there are no family or friends appropriate to consult

The LA/NHS may consult an IMCA where the person does not have the capacity to agree to the arrangements for; • accommodation reviews, where there are no family or friends

able to support and represent the person• adult protection proceedings, for victim or alleged perpetrator

regardless of family/friend involvement

Overlap

• If an assessment, care and support plan or review leads to a change in accommodation, an eligible person could receive both types of advocacy

• People subject to safeguarding concerns (alleged perpetrators who lack capacity can be offered IMCA support)

• Different emphasis within role….

• …with some similarities

Similarities?

• Aim of the role• Audit function (checking decision making processes follow

legislative requirements)• Both reflect advocacy principles• Supported decision making• Challenging decisions and systems

Differences?

• The point within the decision making process the advocate is appointed

• The types of decision• Producing reports• Differences in capacity• Differences in instruction

Raising concerns

The advocacy role in raising concerns and challenging decisions

Raising Concerns

• An important part of supported decision making is helping a person to raise concerns

• The Care Act allows advocates to independently challenge or raise concerns when a person is unable to do so.

• The Act requires advocates who are supporting a person who does not have capacity, or is not otherwise able, to challenge the decision on the person’s behalf where the advocate believes the decision does not promote the individual’s wellbeing.

Writing a report

• If the advocate has concerns about the LA has acted, the decision or outcome the advocate must write a report.

• The local authority should convene a meeting with the advocate to consider those concerns

• The local authority must provide a written response to the advocate following the meeting

Different concerns – different routes?

Choose the most appropriate method to deal with your concerns:

• Ask simple questions• Raising informal concerns• Accessing formal complaints process• Accessing the Court of Protection• Working with HealthWatch or CQC (to raise systemic

concerns)• Appeals (from April 2016)

Appeals process (proposed)

Documents

Advocacy under the Care Act Slides to accompany taught sessions