Hull Statutory Advocacy Service

Hull CVS is the lead provider for all statutory adults and children’s advocacy in Hull.
Delivered in in partnership with Cloverleaf Advocacy and the National Youth Advocacy Service (NYAS), Hull CVS provides the umbrella for all patient voice and advocacy support services in to a single access service. Each of the following types of advocacy are available as part of this service:

  • Social Care and Care Act Advocacy
  • Independent Mental Health Advocacy
  • Independent Mental Capacity Act Advocacy
  • Children’s Statutory Advocacy
  • Independent Health Complaints Advocacy

Social Care & Care Act Advocacy

The Care Act 2014 places a duty on local authorities to refer anyone undergoing a social care assessment or review that has substantial difficulty in understanding the process and no appropriate individual to represent them, to a Care Act Advocate.

A Care Act Advocate will support you to be involved in the assessment or review process, representing your rights, views, wishes and feelings by helping you to:

  • understand the assessment or review process
  • participate in the process ensuring your rights are protected and your wishes, views and feelings are heard
  • identify any alternative options
  • promote your own wellbeing
  • prevent and delay the need for care and support
  • take control of your life so that you can pursue opportunities to realise your potential
  • ensure the assessment or review process follows the Care Act.

Independent Mental Health Advocacy (IMHA)

An IMHA advocate is independent of mental health services, and can help eligible people get their opinions heard and make sure they know their rights under mental health law.

People tell us that an IMHA can make a big difference to their experience of detention and the service is highly valued.

Changes to the Mental Health Act 1983 in 2007 placed a duty on local authorities to provide an IMHA service to all ‘qualifying patients’ from April 2009.

You have the right to an IMHA, and are known as a ‘qualifying patient’ if you are:

  • detained under the Mental Health Act 1983, except where you:
    • have been detained in an emergency, under section 4
    • are detained under section 5 holding powers
    • have been taken to a place of safety under section 135 or 136 of the Mental Health Act
  • “liable to be detained” – this includes when:
    • you are on leave of absence from hospital
    • you are absent without leave from hospital
    • where a court order or application for admission has been made in relation to you
  • subject to a community treatment order (CTO)
  • subject to guardianship
  • a conditionally discharged restricted patient
  • a voluntary/informal patient, where certain treatments, including electroconvulsive therapy (ECT) and neurosurgery, are being considered.

If you are a qualifying patient and you have been denied the support of an IMHA, you should seek legal advice from a mental health or community care solicitor.

The service is free and confidential. An IMHA will meet with an eligible patient following the request of the patient, the nearest relative, the responsible clinician or an AMHP.

An IMHA can work alongside you and help you to:

  • Understand and exercise your rights under the Mental Health Act 1983, including understanding:
    • the parts of the Mental health Act that apply to you (such as the reason why you are detained, and why you are eligible for an IMHA)
    • why decisions have been made
    • the rights that other people have in relation to you under the Mental Health Act (such as your nearest relative).
    • any conditions or restrictions that you are subject to (such as a community treatment order (CTO) or restrictions around leave of absence from a hospital)
    • medical treatment that you are receiving or might be given, including: the reasons for that treatment; the legal basis for providing that treatment; the safeguards and other requirements of the Mental Health Act 1983, which would apply to that treatment
  • Support you to take part in care planning and express your views about your care and treatment, including by representing you and speaking on your behalf – for example at review meetings or hospital managers’ hearings
  • Raise concerns about your experiences of care and treatment
  • Enforce your rights and get what you are entitled to
  • Make an application to the Mental Health Tribunal and present your views and support you at a mental health Tribunal hearing
  • Access legal advice
  • Discuss aftercare and access support and treatment

An IMHA can work alongside you and help you to:

  • Understand and exercise your rights under the Mental Health Act 1983, including understanding:
    • the parts of the Mental health Act that apply to you (such as the reason why you are detained, and why you are eligible for an IMHA)
    • why decisions have been made
    • the rights that other people have in relation to you under the Mental Health Act (such as your nearest relative).
    • any conditions or restrictions that you are subject to (such as a community treatment order (CTO) or restrictions around leave of absence from a hospital)
    • medical treatment that you are receiving or might be given, including: the reasons for that treatment; the legal basis for providing that treatment; the safeguards and other requirements of the Mental Health Act 1983, which would apply to that treatment
  • Support you to take part in care planning and express your views about your care and treatment, including by representing you and speaking on your behalf – for example at review meetings or hospital managers’ hearings
  • Raise concerns about your experiences of care and treatment
  • Enforce your rights and get what you are entitled to
  • Make an application to the Mental Health Tribunal and present your views and support you at a mental health Tribunal hearing
  • Access legal advice
  • Discuss aftercare and access support and treatment

You can request support from an IMHA at any time after you become a qualifying patient. You can ask:

  • a member of the ward staff
  • your responsible clinician
  • approved mental health professional (AMHP)

Other people can also ask an IMHA to visit you, these include:

  • your nearest relative
  • an AMHP
  • your responsible clinician

You can choose whether or not to work with an IMHA once they have visited. Working with an IMHA does not affect your right to seek legal advice, or any entitlement you may have to legal aid. It does not prevent you from working with another advocate, but other advocates do not have the same rights and duties as an IMHA.

Independent Mental Capacity Advocacy (IMCA)

When a doctor or social worker asseses someone as lacking capacity to make an important decision, they are entitled to the support of an IMCA. Under the Mental Capacity Act 2005 this is a legal right for all people aged over 16 in England, if they lack capacity and do not have an appropriate family member or friend to represent their views. An IMCA is only needed if the person cannot understand information relevant to a particular decision, retain it, weigh up the pros & cons and then communicate their decision.

An IMCA is independent of health and social care services and will represent the individual in discussions to work out whether the proposed decision is in their best interests, taking account of their current and previous wishes, beliefs and preferences.

You have the right to an IMCA if:

  • You have been assessed as lacking capacity to make certain important decisions at the time the decisions need to be made, and
  • you have nobody else to support or represent you, or to be consulted (other than paid staff).

An IMCA must be instructed, and then consulted, in relation to the following decisions:

  • An NHS body is proposing to provide serious medical treatment
  • An NHS body or a local authority is proposing to arrange a change of accommodation to hospital or a care home, and:
    • you will stay in hospital longer than 28 days, or
    • you will stay in the care home for more than 8 weeks.

An IMCA may be instructed, and then consulted, in relation to the following decisions:

  • care reviews, where nobody else is available to be consulted
  • adult protection (or ‘safeguarding’) cases, whether or not family, friends or others are involved.

The IMCA’s role

The IMCA will support and represent you in discussions to work out whether the proposed decision is in your best interests. The IMCA provides information to help work out what is in your best interests and to help with this they consult widely with people who know you, and those involved in your health and/or social care. IMCAs have the right to see relevant healthcare and social care records to inform this process. IMCAs then raise questions or challenge decisions which appear not to be in your best interests. The information they provide to the decision maker must be taken into account when making the final decision.

An IMCA would work alongside you in the following ways:

  • visit you in hospital, a care home or wherever you are living. You should be able to speak in private, unless you would prefer someone else there.
  • help collect relevant information about the decision that needs to be made – for example health or social care records.
  • with your consent, consult with health and social care professionals providing the care and treatment. If appropriate, they can also consult other people who may be able to comment on your wishes, feelings, beliefs and values, if you are unable to comment yourself at the time.
    • support you to make decisions yourself – for example:
    • identifying your wishes, feelings, beliefs and values, or what these would be if you had the capacity to make the decision
    • explaining the options available
    • if the decision is about medical treatment, they can suggest whether it would be useful to get a second medical opinion
    • making sure that the Mental Capacity Act Code of Practice has been followed and the decision has been made in your best interests and is the least restrictive option.
    • writing a short report with their findings
  • If the IMCA believes that their opinion has not been taken into account by professionals, or if there is a disagreement between the professionals about what is in your best interests, they can:
    • make a complaint to the NHS body (the hospital or trust) or the local authority, or
    • take the matter to the Court of Protection for a decision.

Mental Capacity Act Deprivation of Liberty Safeguards (DOLs)

DOLs form a legal framework to safeguard the rights of people who lack capacity to consent to being deprived of their liberty, and who are not detained under the Mental Health Act. The safeguards include a right to appeal. They were introduced to prevent breaches of the European Convention on Human Rights (ECHR). The safeguards were introduced into the Mental Capacity Act (MCA) 2005 via the Mental Health Act 2007.

People who meet the eligibility criteria are detained via a ‘standard authorisation’.  The 5 principles of the MCA ensure that a vulnerable person should only have their liberty taken away IF:

  • it is in their own best interests to protect them from harm
  • it is a proportionate response to the likelihood and seriousness of the harm, and
  • if there is no less restrictive alternative.

An assessment must take place and the ‘Supervisory Body’ (usually the Local Authority), decides if a person can lawfully be deprived of their liberty.  The assessment will help the supervisory body decide if a deprivation of liberty needs to be authorised, and for how long.

The MCA DOLs applies to anyone aged 18 and over:

  • Who suffers from a mental disorder such as dementia, a profound learning disability or other neurological conditions (for example as a result of a brain injury), who lacks capacity to give informed consent to the arrangements made for their care and/or treatment.
  • Who, following an independent assessment, is considered to require a deprivation of liberty, in their best interests, to protect them from harm.

The safeguards cover patients in hospitals, and people in care homes registered under the Care Standards Act 2000.

Following the decision of the Supreme Court in March 2014 in Cheshire West, there are two questions to ask:

  1. Is the person subject to continuous supervision and control?
  2. Is the person free to leave?

The focus is not on the person’s ability to express a desire to leave, but on what those with control over their care arrangements would do if they sought to leave.  In all cases, the following is not relevant to the application of the test:

  • the person’s compliance or lack of objection
  • the relative normality of the placement (whatever the comparison made)
  • the reason or purpose behind a particular placement.

The following list gives examples of steps taken which involve more than restraint and amount to a deprivation of liberty:

  • Restraint is used, including sedation, to admit a person to an institution where that person is resisting admission.
  • Staff exercise complete and effective control over the care and movement of a person for a significant period.
  • Staff exercise control over assessments, treatment, contacts and residence.
  • A decision has been taken by the institution that the person will not be released into the care of others, or permitted to live elsewhere, unless the staff in the institution consider it appropriate.
  • A request by carers for a person to be discharged to their care is refused.
  • The person is unable to maintain social contacts because of restrictions placed on their access to other people.
  • The person loses autonomy because they are under continuous supervision and control.

This list is not exclusive.

An IMCA can be involved in supporting and representing people who may be subject to the DoLs. They can:

  • be instructed to support an individual who is to be assessed (in response to a request for a standard authorisation), or if there is a concern about a potentially unauthorised deprivation of liberty.
  • support individuals who wish to challenge an application for a standard authorisation. This is the case even if an individual has a relevant person’s representative (RPR) helping and supporting them to do this.

Relevant Person’s Representative (RPR)

Everyone who has a DoLs authorisation must have a relevant person’s representative (RPR).  It is the role of the RPR to make sure that any conditions of the DoLs are being met and to inform the person of their rights and how to exercise those rights. This is an important role in ensuring the person deprived of their liberty is safeguarded.  An RPR can be a family member or a friend.

There are certain rules guiding who can be an RPR. To be eligible you must be:

  • 18 years of age or over
  • able to keep in contact with the relevant person
  • Willing to be appointed.

You must not be:

  • ?nancially interested in the hospital or care home where the relevant person is being deprived of their liberty, or be a relative of a person who has a ?nancial interest
  • employed by, or providing services to, the care home in which the relevant person is residing or employed by the hospital in which the relevant person is residing in a role that is, or could be, related to their treatment or care
  • employed to work in the relevant person’s supervisory body in a role that is, or could be, related to the relevant person’s case.

RPRs must have regular, face-to-face contact with the person being deprived of their liberty, to ensure that their interests are being safeguarded. This means that the hospital or care home where the person is staying (the managing authority) should allow you to visit them at reasonable times. As the RPR, your name should be recorded in the person’s health and social care records. If you have insuf?cient contact with the relevant person for whatever reason, they may not have full opportunities to have their case reviewed or to appeal against their deprivation of liberty to the Court of Protection.

As an RPR, you have a legal duty to comply with the Mental Capacity Act Code of Practice.

Managing authorities and supervisory bodies (local authorities or NHS bodies) should keep you informed about sources of support and information available to help you in your role, including how to access the support of an Independent Mental Capacity Advocate (IMCA).

As soon as possible after a standard deprivation of liberty authorisation is given, the managing authority must make sure that both you and the relevant person understand:

  • the effect of the authorisation
  • the formal and informal complaints procedures that are available to both of you
  • your right to request a review
  • your right to make an application to the Court of Protection to challenge the  the Deprivation of Liberty authorisation.
  • your right, where the relevant person does not have a paid ‘professional’ representative, to request the support of an IMCA.

The role of an RPR ends when relevant person’s authorisation comes to an end.

Paid RPR

In cases where no friend or family member is willing or eligible, a paid representative will be appointed. Their role is the same as an unpaid RPR.

A person who is deprived of liberty under a standard authorisation – and their unpaid RPR – have a statutory right of access to an IMCA if they wish to challenge the authorisation. It is the responsibility of the supervisory body to instruct an IMCA if requested by the individual or their RPR.

The IMCA can provide extra support to get the best possible use of the review process and the Court of Protection if needed.  They can help you to understand:

  • why the person meets the criteria for authorisation
  • how long the authorisation will last
  • any conditions to which the authorisation is subject.

If there is a gap in appointment of an unpaid RPR (for example one family member no longer wishes to continue in the role and the local authority are seeking another family member/friend to take on the role) an IMCA can be appointed to provide support on a short-term basis. In these circumstances the IMCA role is the same as the RPR role.

Independent Health Complaints Advocacy

Independent Health Complaints Advocacy supports people who have experienced problems with an NHS service to have their concerns heard. The service is free, independent of the NHS and confidential.

If you, or someone close to you, have experienced a problem with an NHS service we can support you to make your concerns heard.  We can provide information only, or more detailed help and support – whatever is required.  We will help you get a clear response to your complaint.

If you would like information or guidance on how to make a complaint against the NHS, you can download a self-help pack below.

Help Sheet for Hull

An Independent Health Complaints Advocate can:

  • explain the complaints process.
  • help you to identify your options and who to complain to.
  • help you with forms, writing letters and emails.
  • help you to explain your concerns and go to meetings with you regarding your complaint.
  • help you to progress your complaint to the Parliamentary and Health Service Ombudsman if it cannot be resolved by the NHS complaints process.

We will help you to make your voice heard by:

  • giving you an opportunity to speak confidentially to someone who is independent of the NHS
  • taking time to listen to your experience
  • talking with you about what support you need to make your complaint
  • giving you information about the different ways that you can raise your concerns
  • helping you to think about what you would like to achieve from your complaint (people want different outcomes when they complain – some people want an apology, others an explanation or an improvement to NHS services).

Independent Health Complaints Advocacy covers any problems that people have experienced with NHS services including:

  • Hospitals
  • Doctors
  • Dentists
  • Pharmacists
  • Ambulances
  • Treatment paid for by the NHS but delivered outside the county.

Children’s Statutory Advocacy

The following Advocacy services and the provision of Independent Persons are provided for children:

  • Children in care or children who are subject to a child protection plan.
  • Children and young people who are the subject of secure accommodation (welfare and criminal if remanded).
  • Independent Mental Health Advocacy (IMHA) to children, young people and adults detained under the Mental Health Act.
  • Children where there are concerns with regards to child trafficking and Unaccompanied Asylum Seeking Children. This includes providing support to the child or young person with their application to remain in the UK or the appeals process where a child’s request to remain in the UK has been denied.
  • Services for Health and Social Care Complaints.
  • Services for Children Looked After and Care Leavers.
  • Children who are wishing to take legal action against the local authority.
  • Children whom are vulnerable and don’t have any appropriate adult or advocate available to support them.