Resources

Download Guidance to support advocates in challenging decisions or actions with or on behalf of individuals from the VoiceAbility website (links open in a new window).

Why social workers must engage with advocates who challenge their decisions

A new guide on advocates' role in helping people challenge social services decisions illustrates the critical role of social workers in enabling this, says Sue Lee and Karen Orchard

 By Sue Lee and Karen Orchard

High-profile cases, such as Steven Neary’s, (opens in a new window) 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 (opens in a new window) and the Court of Protection’s judgement in the AJ case, (opens in a new window) (the implications of which are discussed in this article (opens in a new window)), 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 VoiceAbility practice guide (opens in an new window) 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 (pdf file, opens in a new window), 5(1)(v) and 8).
• The Mental Capacity Act 2005 Code of Practice (opens in a new window) (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”.

Informal challenge

Empowering the person and supporting the development of their skills is an important advocacy principle and is part of the Advocacy Code of Practice (pdf file, opens in a new window), 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 (pdf file, opens in a new window) 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.

Acting as a litigation friend in the Court of Protection

Introduction

1. The Court of Protection plays a vital role in securing the rights of some of the most vulnerable people in society. Judges of the court daily have to determine whether individuals have or lack capacity to take specific decisions, and – if they lack capacity – what should be done in their best interests.

2. The person who lacks (or may lack) capacity to take their own decisions will not always be involved directly in the proceedings. If they are, and if they do not have capacity to participate in those proceedings, then they will need a ‘litigation friend’ – a person who can conduct the proceedings on their behalf. Litigation friends are therefore a crucial part of the working of the Court of Protection, ensuring that those whom the proceedings concern have their voice heard before the court.

Read more or Download Acting as a litigation friend in the Court of Protection as a pdf file (links open in a new window)

We have put together the following points to help to ensure everyone receives the treatment and care they should expect regardless of age or vulnerability as a patient.

I have worked in social housing for thirty years and am currently housing director for an Essex housing association. In the past  I have also been a voluntary board member on two housing association boards. My aim is to provide the right homes for the right people in the right places.  This sounds simple but it gets complicated  when people who don't understand how social housing works get involved (this includes some people who work in social care and health settings).   I have found solutions for some challenging housing circumstances experienced by people with both physical and learning disabilities.  I have lots of experience in housing for older people too.  So if you need some advice on housing options for people who need a bit of help to live independently in general needs housing I may be able to help.  At the very least I will be able to give you an insight into what housing bods like me need to know about your needs and circumstances in order to help you meet your housing needs.

Alicia is a qualified biodynamic psychotherapist who has worked with people with mental ill health and learning disabilities who have labels of ‘challenging behaviour’. Through this work, it became apparent that peoples ‘problems’ were often less about them and more about the systems and structures around them that do not recognise people as individuals. This understanding ignited a passion for enabling people to get ordinary lives through person-centred approaches to housing and support and a shift away from service-orientated responses to housing and support. 

Alicia has worked in the statutory and voluntary sectors. She has led strategies to create more housing for people with learning disabilities and managed a pilot project to test home ownership options and natural supports. 

More recently, she led on the national housing delivery plan for people with learning disabilities, working with the Department of Health, the Cabinet Office and the Department for Communities and Local Government. She has also led national development programmes for In Control, Paradigm and the NDTi, working on housing, community development and personalisation. Alicia is a Fellow of the Centre for Welfare Reform.

Alicia has written and contributed to many publications including:

• Reach Standards in Supported Living
• Reach Out - personalising community and day services
• Gadgets, Gizmos & Gaining Independence - the use of Assistive Technology by People with a Learning Disability

A new draft national framework that aims to improve the care of people with learning disabilities, shifting services away from hospital care and towards community-based settings, has been published.

The draft service model, published by NHS England, the Local Government Association (LGA), and the Association of Directors of Adult Social Services (ADASS), sets out 9 overarching principles that define what ‘good’ services for people with learning disabilities and/or autism whose behaviour challenges should look like.

This is the latest piece of work to emerge from the Transforming Care for People with Learning Disabilities programme, which is a joint initiative between the NHS England, the LGA, ADASS, the Care Quality Commission, Health Education England and the Department of Health.

The 9 principles are:

•Providing more proactive, preventative care, with better identification of people at risk and early intervention

•Empowering people with a learning disability and/or autism, for instance through the expansion of personal budgets, personal health budgets and independent advocacy

•Supporting families to care for their children at home, and providing high-quality social care with appropriate skills

•Providing greater choice and security in housing

•Ensuring access to activities and services that enable people with a learning disability and/or autism to lead a fulfilling, purposeful life, such as education and leisure

•Ensuring access to mainstream health services, including in the community

•Providing specialist multi-disciplinary support in the community, including intensively when necessary to avoid admission to hospital

•Ensuring that services aimed at keeping people out of trouble with the criminal justice system are able to address the needs of people with learning disabilities and/or autism, and that the right specialist services are in place in the community to support people with a learning disability and/or autism who pose a risk to others

•Providing hospital services that are high-quality and assess, treat and discharge people with a learning disability as quickly as possible.

These principles will underpin how local services are redesigned over the coming months and years – allowing for local innovation and differing local needs and circumstances, while ensuring consistency in terms of what patients and their families should be able to expect from local decision-makers.

The service model has been co-produced with providers, commissioners, health and care professionals and people with learning disabilities and their families.

It will be used and tested immediately by the five ‘fast track’ areas announced by NHS England chief executive Simon Stevens at the NHS Confederation conference, who will use it to inform their transformation plans over the summer of 2015, and test it against the reality on the ground. NHS England, the LGA and ADASS will refine the guidance in response to any feedback.

NHS England will also continue to seek the views of clinicians, commissioners, providers, people with learning disabilities and/or autism who have a mental health condition or display behaviour that challenges (including offending behaviours) and their families, ahead of the publication of a final version in autumn 2015. This will ensure it’s available to help commissioners plan services and budgets for 2016/17.

As part of, and in line with, the priorities of the Transforming Care programme, it is intended that this will involve a significant shift in commissioning towards high quality community-based services over the next 18 months, allowing the closure of inpatient beds and facilities.

Welcome guidelines

Jolanta Lasota, CEO Ambitious about Autism, welcomed the guidelines. “It is particularly encouraging to see access to leisure activities included in the principles,” she said. “We have found that for the students at our TreeHouse School and Ambitious College, access to vocational and leisure programmes including horticulture, equine and photography are really important for their enjoyment and education. These activities can also help to find a career path, so it is crucial to their development.

“Whilst education is crucial to personal development, it can only be effective within a wider framework of good health and social care arrangements. We are delighted to see all-round quality of care for those with autism being addressed by the NHS and hope it goes a long way to supporting those with autism and other less visible disabilities.”

New NHS guidelines shift care provision

The care of many people with learning disabilities in the UK is likely to be transformed with the introduction of new NHS guidelines for healthcare provision. 

NHS England has published a draft national framework designed to shift care away from hospitals and towards community-based settings.

The guidelines come in the wake of growing concern about the care and deaths of people with learning difficulties and/or autism in hospitals.

Connor Sparrowhawk (pictured) was one such case. The 18-year-old died in 2013 at Slade House, an assessment and treatment unit in Oxfordshire that was run by NHS foundation trust Southern Health.

Connor, who had autism and epilepsy, drowned in a bath. An external investigation concluded that his death was preventable.

The new NHS guidelines involve nine principles of what ‘good’ services for people with learning disabilities and/or autism should look like.

The guidelines highlight steps towards providing more preventative care, with better identification of people at risk. They stress the need to ensure access to mainstream health services, including mental health services in the community. They also point to the need for specialist multi-disciplinary support to be provided in the community, including intensive support to avoid admission to hospital.

The principles will underpin how local services are redesigned over the coming months and years. In the meantime, the guidelines will be tested immediately this summer by five ‘fast track’ areas announced by Simon Stevens, NHS England’s chief executive.

Speaking at the NHS Annual Conference in June, Stevens said of the initiative: “This is not all about the money. It is all about the kind of healthcare system we want. We need to fundamentally redesign care.”

Referring to learning disabilities, he said: “We have not finished the job. We need a closure programme for long-stay institutions, with more power in the hands of families.”

Inpatient beds and facilities are expected to close over the next 18 months, when a shift in commissioning ‘high quality’ community-based services takes place.

- See more at: http://www.autismeye.com/new-nhs-guidelines-shift-care-provision/#.VboTBmne1Xo.facebook