RESPONSE TO KEY QUESTIONS FOR CONSULTATION ON INDEPENDENT SPECIALIST ADVOCACY IN ENGLAND AND WALES: RECOMMENDATIONS FOR GOOD PRACTICE. (Di Barnes and Toby Brandon with Tricia Webb: University of Durham, June 2002)
The Critical Psychiatry Network welcomes this study. The availability of help from the independent specialist mental health advocacy service (SMHAS) is a positive feature of the draft Mental Health Bill. (See the Critical Psychiatry Network response to draft Mental Health Bill www.criticalpsychiatry.co.uk/DraftMentalHealthBill.htm).
There seems to be no reason why SMHAS could not be developed before the draft Mental Health Bill becomes law. SMHAS could function under the provisions of the current Act. In fact it may make sense to introduce SMHAS under the current Act, particularly if there is likely to be delay in bringing the new Mental Health Act onto the statute. It would allow an evaluation of the impact of such a service and may lead to modifications in the Bill.
Not least this is because Government advisors, such as the National Director of Mental Health, have seemed to suggest that SMHAS is an adequate safeguard for the extension of powers proposed under the new Mental Health Act. The Critical Psychiatry Network does not accept that SMHAS will be a sufficient safeguard under proposals in the draft Bill. However, SMHAS does have the potential for improving mental health services. It does create a balance in favour of human rights and a therapeutic environment, rather than the emphasis on safety in the draft Mental Health Bill.
It is important to stress the contribution made by independent peer advocacy through organisations such as UKAN, and to a lesser extent some local Mind groups, in this country over the last 10 years. Without this work it would not be possible for us to consider the possibility of any form of advocacy. There is now considerable national expertise in independent peer advocacy (i.e. advocacy by service users for service users). For example, UKAN has a code of practice for advocates which specifies how advocates should be trained. Thomas and Bracken (1999) have argued that such advocacy has important ethical benefits, and it is important that these benefits are maintained and built on. We argue for a strengthening and evolution of the tradition of independent peer advocacy in the new MHA.
There are fears that SMHAS may be subsumed under the recently established PALS. It is essential that this does not happen. Mental health advocacy must be independent from services
Responses to key questions
1. Has anything been omitted from or included in the statement of the purposes of specialist advocacy as set out in para 3.27
The list seems comprehensive. What is subsumed within the purposes is the need to counteract the bias of a biomedical perspective. Service users are entitled to independent medical opinion that may take a biopsychological view of their problems.
2. Are there situations where specialist advocacy may not be effective or may be obstructive?
Not in principle. Advocates need to be well trained so that resources are not wasted.
The role of UKAN code of conduct and training needs to be stressed. This is widely adopted by most UK advocacy groups
3. Would it be feasible and practicable to set time limits for a patient to be visited by a specialist advocate eg. Within three working days of becoming subject to the powers of the Mental Health Act? What would be the advantages and disadvantages of setting such time limits?
A time limit of three days may be ideal and can be stipulated as such. However, the SMHAS needs to be able to set its own priorities.
4. What should the relationship of specialist advocates to ‘nominated persons’? In what ways, if any, may the specialist advocate be able to assist ‘nominated persons’? Should the specialist advocate have any role in respect of carers and other relatives?
We do have concerns about the role of the nominated person as defined in the draft Bill, and are not convinced that sufficient consideration has been given to the evolution of this function from its origin as the nearest relative making an application for detention under previous Mental Health Acts. The carer need not be the nominated person.
The function of the nominated person is said to be to inform professionals when consulted of what appear to be the patient’s wishes and feelings about treatment and to inform them that those wishes and feelings cannot be ascertained if they cannot. This seems also to be the function of an advocate.
The role of the advocate should be to act on behalf of the service user. The advocate could act on behalf of the carer and other relatives at the request of the service user, but consent is required. It is essential that advocacy for patients is separate from advocacy for carers. Patients' and carers' interests may well conflict. Such a situation would place an advocate in an impossible situation. Whose interests would s/he represent under such circumstances?
5. For the following groups of patients made subject to compulsory powers under the Mental Health Act, what particular needs should be taken into account when providing specialist advocacy services:
Special interest and expertise should be developed in these areas.
6. What particular needs should be taken into account when providing specialist advocacy services for people with long-term mental incapacity (including so-called Bournewood patients)?
Development of the role of SMHAS in such cases may be a better solution to this problem than that proposed by the draft Mental Health Bill.
7. The report sets out three possible structures for ensuring the independence of the specialist advocacy service. Which best serves the interests of patients and why?
Independence is crucial, which is why a semi-independent arm of provider agencies is inadequate.
The Dutch model gives a coherence to the structure of services. Potentially it ensures standards of training and provision. However, contractual arrangements with independent agencies may give a stimulus to innovation and diversity. The other advantage of the Dutch model is that the sole function of the SMHAS would be advocacy, whereas independent agencies which will become involved in advocacy may also continue to undertake their other roles and functions, which may detract from their involvement in advocacy. For example, why should not MIND set up an advocacy service? For this latter reason, we favour the establishment of a new body for advocacy. As the new body develops it may also be able to undertake some of the functions that the draft Bill allocates to the health care inspectorate, ensuring a high quality of mental health care provided under the Act.
The Dutch model is a good one, but it is worth stressing again that considerable experience already exists in UK through organisations like UKAN.
8. What role, if any, should be given to volunteers in delivering specialist advocacy service?
Volunteers should not be exploited or relied upon but may contribute to the functioning of the service.
If we go for a service that builds on independent peer advocacy, then it follows that volunteers will be involved. The issues then relate to their payment (many may be on benefits), their support needs, their training. Some may choose to become fully paid employees in the new service. Some may not. There has to be flexibility.
9. How should the funding of specialist advocacy services be calculated? What costs should be covered?
Like any health service, the principle costs are salaries and expenses of staff. Estimates need to be made of numbers of staff required.
Could costs of independent medical reports and legal advice and representation be borne by SMHAS rather than funded through the legal aid system?
10. What factors should be taken into account in deciding what will be an appropriate size of area to be covered by a specialist advocacy service?
Obviously there needs to be national coverage. The regional divisions could be matched with Tribunal areas, which may correspond with Strategic Health Authority areas. Areas also need to correspond with PCTs.
11. What special factors need to be taken into account to ensure that patients admitted to independent sector services receive an effective specialist advocacy service?
PCTs will have to commission advocacy services in the independent and statutory sectors, wherever people may be subject to compulsion under the Mental Health Act.
12. What range of resources and facilities might specialist advocacy services need to have access to in order to ensure effective support for all individuals made subject to the Mental Health Act?
Special interest and expertise should be developed to meet diverse needs.
13. What salaries at the level proposed attract candidates of the required level of experience and professionalism?
Salaries need to be on a par with other health professionals. We would like to see the research referred to in section 8.1. The statement about pay scales is made with the authority of "research", but it is unclear from the information given what assumptions were made about the required level of expertise and professionalism required.
We take it that the levels set were for people without mental health professional training. There does seem to be a need for debate about how much an advocacy service should employ people with mental health professional training and background and for some reason this does not seem to be a consultation point, or even explicitly considered in the report. It is as though an alliance between professionals and mental health users and advocates is not possible, but we would at least like to encourage further discussion on this point. The service may need at least advice from mental health professionals, including consultant psychiatrists, possibly on a part-time basis.
For example, is there a role for an advocacy service to obtain an independent psychiatric report for a tribunal, or should this, as now, being obtained through legal aid and advice via a solicitor? We appreciate the wish at this stage not to usurp the role of mental health legal representation, but we do wonder why the report did not give further consideration to a more integrated relationship with legal advice, possibly with the SMHAS employing its own legal advice.
The professionalisation of advocacy services must not be at the expense of putting people who have experienced mental health problems off coming into advocacy. This issue should really be a matter for discussion at the DoH group that is examining workforce needs. This group is looking at ways of employing service users in services. Advocacy is one excellent role for service users.
14. What form should the accreditation of specialist advocates take? Should accreditation be time-limited?
We doubt that the advocacy role should be "professionalised". Nonetheless skills need to be developed and networks established.
15. What arrangements should specialist advocacy services have in place for reporting to provider services concerns that have been raised in the course of providing the specialist advocacy service?
Sufficient attention needs to be given by the management of SMHAS to sustaining good relationships with provider services.
16. How should the specialist advocacy service be independently monitored and who should be responsible for it.
Like any other statutory health services, should not SMHAS be subject to the Commission for Health Improvement? One of the advantages of setting up a new body similar to the Dutch model is that it may potentially ensure standards. If independent bodies are providing advocacy, monitoring will have to be through the contractual processes.
17. Do you agree with the core standards for specialist advocacy services? Is there anything you would like to add or remove?
Services obviously need to be empowering. However, little advice is given about people who do not want or refuse to have an advocate.
18. Do you agree with the code of practice for specialist advocacy services? Is there any further comments you would like to make?
A code of practice for a network like UKAN may need to be modified slightly for a statutory service, or at least a service with statutory responsibilities, like SMHAS.
19. Are there any further comments you would like to make?
See the preamble above
Thomas, P. and Bracken, P. (1999) The value of advocacy: putting ethics into practice Psychiatric Bulletin, 23, 327-329.