By Jakki Cowley, director, Empowerment Matters
In April it will be seven years since the role of Independent Mental Capacity Advocate (IMCA) was introduced in England under the Mental Capacity Act 2005. IMCA is a statutory requirement and as such the Department of Health is required to provide local authorities with sufficient funding to enable them to commission the service locally.
There has always been some tension felt by both the advocacy sector and those that access advocacy with regards to how independent the advocacy is when the funding comes directly from the local authority, who are also more often than not the body responsible for funding a person’s care. Advocacy services however have prided themselves on maintaining their independence from commissioners and care provision. Indeed, most advocacy organisations that also deliver other services (for example, housing) ensure they don’t have advocacy contracts in the same locality to minimise any conflict of interest.
Court of Protection challenges
Whilst it is the role and right of an IMCA to challenge decisions – as they hold the same right to do so as the person who lacks capacity (P) or any other individual with an interest in P’s welfare – challenging decisions in the Court of Protection (CoP) as ‘litigation friend’ for P poses particular difficulties.
The CoP appoints a litigation friend when P is a party to proceedings but lacks the capacity to instruct a solicitor and take part in the proceedings. The litigation friend will carry out these tasks on the person’s behalf.
The Official Solicitor (OS), an independent official appointed by the Lord Chancellor to prevent injustice to vulnerable people, has often taken on the role ‘litigation friend’ in CoP cases. However, in February 2012, the current OS, Alistair Pitblado, issued a notice that stated:
- The OS has reached the limit of his resources with regard to Court of Protection welfare cases;
- As a result of this development the OS is unable to accept invitations to act in any except the most urgent cases;
- All other cases are being placed on a waiting list (though this was abolished in October 2013).
Although IMCAs have been carrying out this role since the beginning of the Mental Capacity Act, there has been an increase in demand following the OS’s notice.
Our organisation, Empowerment Matters, which provides MCA and advocacy training, has delivered a series of seminars in conjunction with Irwin Mitchell solicitors and specialist counsel from 39 Essex Street Chambers on the role of IMCAs and litigation friend in the CoP.
We wanted to create awareness and develop knowledge for IMCAs to address the fact that:
- IMCAs have not received any specific guidance on the expectations of the role, including on going to court;
- Commissioners do not necessarily factor in this element of the role with respect to funding and therefore may be unaware of what the role entails, including the amount of time a court case may involve.
Advocacy providers’ fears
There has been a great demand in IMCAs wishing to access this training. However, many report that they are not only being actively discouraged by commissioners to carry out the litigation friend role, but that they fear they may lose their contract if they continue to challenge decisions. We’ve been told of situations where IMCAs are informed how much it costs a local authority to go to court, with the implication that if they continue to do this by way of being a litigation friend their contract may not be renewed.
Some providers have talked about contracts now specifically saying they are not able to fulfil this role, which in itself raises questions, both about how IMCAs can IMCAs challenge decisions but also who will represent P if their advocate won’t or can’t within the Court of Protection.
The other issue is that carrying out the role of litigation friend can take up time and resources that the IMCA service may not have. Increasing demand for the service, for example in care reviews, would usually mean going back to commissioners and outlining any recent trends or increase in uptake of the service, in order to request further funding. However where this demand is for the IMCA service essentially going to court, possibly to challenge the local authority, can a service feel able to request further funding to enable them to carry out the role?
Should councils lose commissioning role?
This has lead to us questioning whether the current funding set up is the correct one. Is the level of independence that advocacy services pride themselves on viable if they fear job loss or they’re unable to fully represent their client and advocate on their behalf? Should the service be commissioned by a central body that takes the local authority out of the equation? Some providers agree that this needs to occur in order to safeguard the independence of advocates and services. Others fear they would lose their contract because of the loss of the good relationship that exists locally with their commissioners. If funding goes to a central body, will the larger providers be in a more viable position to seek more tenders and will smaller services lose out as it’s felt easier to give several contracts to one organisation?
Both arguments are reasonable and there is no easy answer. We don’t necessarily have that answer but if this is not addressed on a national and local level, there is a risk that independence is compromised and advocates feel less empowered to raise issues on behalf of their clients. This will mean that the voice of some the most vulnerable in society is not heard.