By Sue Lee and Karen Orchard
High-profile cases, such as Steven Neary’s, remain etched in our minds as a reminder of the positive impact that challenging decisions can have on people’s lives.
Steven spent 359 days wrongly detained by a local authority under several Deprivation of Liberty Safeguards authorisations. Following a legal challenge, the Court of Protection ordered that Steven be returned home and then ruled that his rights to liberty and family life, under Articles 5 and 8 of the European Convention of Human Rights, had been breached.
Without the determination of Steven’s father, Mark Neary, to challenge the deprivations and speak out for his son’s rights at the highest level, the outcome for Steven would have been very different.
Had Steven and his father received the independent support they were entitled to, perhaps their situation could have been resolved much earlier and perhaps without the need to go to the Court of Protection.
The new right to independent advocacy under the Care Act 2014, the publication of the Law Commission’s proposals for a new legal framework on deprivation of liberty and the Court of Protection’s judgement in the AJ case, (the implications of which are discussed in this article), have all brought into focus the advocate’s role to support individuals to challenge decisions the individuals do not agree with.
Challenging decisions integral to advocate role
Challenging decisions is an integral part of an advocate’s role. Yet knowing the best route to take is not always straightforward. There is rarely just one way to do this. It is important that people and their advocates know what their options are, and that social workers understand the advocate’s role in supporting or representing individuals in challenging decisions.
VoiceAbility has therefore published a new practice guide on challenging decisions, for advocates and practitioners across the health and social care sectors. The guide provides comprehensive information for professionals to help individuals decide on the most appropriate route to take to challenge decisions or actions they do not agree with.
Rights and roles
The rights of the individual and the role of a statutory advocate in supporting individuals to challenge decisions is clearly set out in relevant legislation (the Mental Health Act 1983, Mental Capacity Act 2005 and Care Act 2014), as are the responsibilities of those making decisions, such as social workers, to respond to concerns. For example:
- There is a clear and strong role set out for advocates working under the Care Act 2014. Regulations specify that, among other roles, the advocate must “assist a person to challenge a decision or process made by the local authority if they wish to do so”. Where a person cannot challenge the decision even with assistance, then to challenge it on their behalf if the advocate believes the decision made is inconsistent with the local authority’s responsibility to promote the person’s well-being (The Care And Support (Independent Advocacy Support) (No 2) Regulations 2014, 5(1)(v) and 8).
- The Mental Capacity Act 2005 Code of Practice (paragraph 10.4) says independent mental capacity advocates (IMCAs) will “raise questions or challenge decisions which appear not to be in the best interests of the person” and says the “information the IMCA provides must be taken into account by decision-makers whenever they are working out what is in a person’s best interests”.
Empowering the person and supporting the development of their skills is an important advocacy principle and is part of the Advocacy Code of Practice, a set of good practice guidelines for advocates and their managers that was revised last year. Therefore, where appropriate and acceptable to the person supported, advocates will work with them to resolve issues informally first. The reasons for this are that:
- an advocate can support the individual to develop skills that will further empower the person to solve issues in the future
- informal methods can be used to good effect to resolve a range of issues quickly, removing the need to use formal processes
- formal methods are often time-consuming and can be costly
- formal methods can become quite adversarial and positions can become more entrenched.
Early engagement with social workers
For individuals who use social care and health services, achieving resolutions informally is more likely when an advocate supports them to express their concerns and to challenge decisions in appropriate ways. A key part to this is having social workers who:
- seek to understand the views, wishes and needs of individuals
- give timely and proper consideration to the issues raised
- fully consider all possible solutions offered by the person
- recognise the rights of individuals to challenge decisions and actions
- understand the role of advocates in supporting individuals to challenge or challenging on behalf of an individual
- understand their obligations in responding to individuals and their advocates.
- Whilst not all informal challenges will result in the desired outcome for the individual, engagement at an early stage, by social workers and other professionals involved, is crucial.
When to make a formal challenge
When attempts using informal methods have been made and resolution of the issues has not been possible, it may be necessary to take a formal approach. Sometimes, a person may exercise their right decide to pursue a formal challenge from the start. Making a formal complaint, approaching the relevant ombudsman, requesting a judicial review, or applying to the Court of Protection may be appropriate actions.
Sometimes issues are so serious that they warrant an immediate formal approach to challenge, for example, where there has been a violation of a person’s human rights or their right to appeal against detention.
Most appropriate route
Our guide is the first of its kind. It provides comprehensive information to support professionals to help individuals to decide on the most appropriate route to take to challenge decisions. It clearly sets out rights of individuals, roles and responsibilities of advocates.
The guide will help to shape how individuals, their advocates and social workers work constructively to resolve as many issues as possible before situations reach crisis point. And, crucially, it will be an important reference for using challenge effectively to ensure that decisions taken are properly tested and based, as far as possible, on the person’s wishes and views.
This guide will also be a valuable resource for friends and family members who often take on the crucial role of supporting people to raise their own concerns, or challenge decisions on their behalf, where necessary.
- Practice guide for advocates challenging decisions or actions with or on behalf of individuals was commissioned by VoiceAbility and written by advocacy training body Empowerment Matters, with legal advice and oversight provided by Irwin Mitchell LLP and guidance and input from staff at VoiceAbility.
- Sue Lee is director, Empowerment Matters, and Karen Orchard is communications lead, VoiceAbility.