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Annex 1: Policy and legislative context
Introduction
Independent advocacy plays a fundamental role in supporting people to become more involved in the issues that affect them and their communities. In public life the need to be responsive to individual need, to listen to people and to act accordingly is being given a welcome prominence. Independent advocacy is one way of ensuring that everyone has a chance to be listened to and be heard.
Independent advocacy is recognised across a wide spectrum of areas from education, to housing, criminal justice to social work. Independent advocacy supports the diversity agenda and the broader social justice agenda by helping to ensure that everyone in our communities has a voice.
In August 2002, the then Health and Community Care Minister, Malcolm Chisholm, announced £1.3m funding to set up the Advocacy Safeguards Agency and Scottish Independent Advocacy Alliance to develop independent advocacy provision for people in Scotland. Mr Chisholm said:
'The Scottish Executive is committed to giving the most excluded and isolated individuals in society a stronger voice. Better independent advocacy services will enable people to make informed choices about their own health care and access the information needed to make their views and wishes known.' 3
The Labour/Liberal Democrat coalition identified the development of independent advocacy as a key commitment in the Partnership Agreement.
'We will strengthen patient advocacy services through the Advocacy Safeguards Agency and the Scottish Independent Advocacy Alliance.' 4
A number of pieces of legislation and several national policy documents are central to the commissioning and provision of Independent Advocacy and have informed the development of Independent Advocacy across Scotland.
The policy framework
The same as you? ( SAY)
The same as you? ( SAY) review of services for people with learning disabilities was published by the Scottish Executive in May 2000. It set out 29 recommendations to improve the lives of people with learning disabilities. The Executive consulted with people with learning disabilities, families, carers and people who plan and provide services and supports to find out what would help ensure that people with learning disabilities have the same opportunities as everyone else.
Independent advocacy was identified as an important way of supporting people with learning disabilities. The review found that very few people with learning disabilities have access to an advocate and people who did valued their support.
Recommendation 11 of the SAY review states that:
'The Scottish Executive should continue to encourage the development of local independent advocacy services.'
The review identified a longer-term aim to:
'... build towards a position where everyone who has complex needs or is particularly vulnerable has ready access to an advocate.'
Access to independent advocacy was also highlighted in subsequent guidance concerning the implementation of Planning in Partnership Agreements ( PIPs).
People with learning disabilities have a right to independent advocacy under the Mental Health (Care and Treatment) (Scotland) Act 2003.
Public Health Institute of Scotland Autism Spectrum Disorder: Needs Assessment Report
The PHIS report states that ideal services for people with autism spectrum disorders should include access to advocacy. It also states that:
'Assistance should be given with developing self-advocacy skills and independent, trained advocates should be available to represent the individual if necessary.'
Our National Health: A Plan for Action, A Plan for Change
Our National Health: A Plan for Action, A Plan for Change (Scottish Executive 2000) sets out plans to improve the NHS in Scotland. A survey of over 3,000 members of the public informed the Plan. The need to pay particular attention to the needs of vulnerable people was highlighted.
'While most people who need to use the NHS can speak for themselves, many people from these groups cannot. For some people, we know that independent advocacy services can provide the one-to-one support many vulnerable, excluded people need. We will therefore work with the existing network of independent advocacy organisations across Scotland to ensure that they can deliver high quality, independent advocacy support to nationally agreed standards.' 5
The Plan cites that by December 2001 we will require all NHS Boards to work in partnership with local authorities to:
'... ensure that integrated independent advocacy services are available to those who most need them.' 6
Patient Focus Public Involvement ( PFPI)
Following the publication of Our National Health, the Patient Focus Public Involvement ( PFPI) strategy (Scottish Executive 2001) for involving patients and the public more effectively in the NHS was published. The provision of independent advocacy is a key requirement in the delivery of the PFPI agenda. Independent advocacy was recognised as an important way of supporting people's involvement in their care and treatment.
To monitor implementation of this requirement, NHS Boards (including special Boards) were required by the Scottish Executive to produce three-year advocacy plans for the period 2001-2004. The first edition of Independent Advocacy: A Guide for Commissioners was published by the Scottish Executive in January 2001 to support commissioners in developing independent advocacy provision across Scotland. Three-year plans for the period 2004-2007 have been submitted to the Scottish Executive. NHS Boards will have to evidence delivery and levels of investment as part of contract monitoring arrangements.
The Performance Assessment Framework for annual assessment of Boards' progress towards implementing Our National Health was introduced in 2001. The section measuring PFPI includes indicators for independent advocacy provision. In April 2005 responsibility for assessing NHS Boards' progress will move to the Scottish Health Council.
The 2003 Scottish health white paper Partnership for Care builds on the foundations laid in the earlier document Our National Health: A Plan for Action, A Plan for Change and reinforces the commitment of the Ministers and the Scottish Executive Health Department to involving people and communities in the centrality of health service planning and delivery.
Fair for All
Ensuring that services are effective for people whatever their personal circumstances or background is important. Independent advocacy is recognised as one way of supporting this to happen. It is essential that independent advocacy services are themselves inclusive and accessible to people who their services are aimed at.
NHSScotland published the Fair for All strategy to highlights its commitment to ensuring that people are treated (whether as patients, staff, visitors or volunteers) without discrimination related to their age, gender, racial origin, sexual orientation or religious belief. It is important that advocacy services are equally available to all who need them and provided in a non-discriminatory way in line with the Executive's social inclusion agenda.
Within the NHS the Fair for All initiative launched in 2000 to support NHS Scotland to become more patient-focused recognised the need for independent advocacy.
Partnership for Care extended the principles of the Fair for All approach across the NHS to ensure that:
'...our health services recognise and respond sensitively to the individual needs, background and circumstances of people's lives.' 7
The progress of NHS Boards was reported in September 2003 in Fair Enough? Fair for All Progress Report.
Fair for All found that independent advocacy is important in delivering a patient-focused health service. The 2003 progress report found that only half of race equality schemes had a satisfactory level of advocacy in place. The progress report emphasized the need to ensure that the advocacy already available in all Local Health Care Cooperatives ( LHCCs) should be inclusive of black/minority ethnic needs. The need for evaluating service uptake, provision and satisfaction was highlighted.
National Standards for Community Engagement
The effective engagement of local people is critical to the regeneration of our most disadvantaged communities by local partnerships. The National Standards for Community Engagement have been developed with the involvement of over 500 people from communities and agencies throughout Scotland. They are a practical tool to help improve the experience of all participants involved in community engagement to achieve the highest quality of process and results. Advocacy has an important role to play in community engagement and ensuring people with learning disabilities and autism spectrum disorders have the opportunity to have their voices heard in their own communities.
All organisations implementing the standards must commit to identifying and overcoming barriers to participation in community engagement and actively promote the involvement of people who experience these barriers. The use of advocacy can overcome the barriers faced by some people with learning disabilities and autism spectrum disorders.
The Legislative Framework
Education (Additional Support for Learning) (Scotland) Act 2004
Section 14 of the Additional Support for Learning Act states that education authorities carrying out duties under the Act must conduct discussions with a young person's advocate where a child's parent or a young person wishes it and 'must comply with the 'relevant person's wishes, unless the wishes are unreasonable' (14 (1)(b)). However, it also states that: 'nothing in subsection (1) is to be read as requiring an education authority to provide or pay for a supporter or advocate' (14(3)).
While there is no duty to provide advocacy under the ASL Act, there is a duty to provide advocacy to children and young people with a mental disorder under the MHA. As some children and young people who have additional support needs may also have a mental disorder it would be advisable for statutory commissioning bodies to have regard to the needs of both groups.
The Mental Health (Care and Treatment) (Scotland) Act 2003
The Mental Health (Care and Treatment) (Scotland) Act 2003 gives people with a 'mental disorder' a right to independent advocacy.
The Act places a duty on NHS Boards and local authorities to secure the availability of independent advocacy services and to take appropriate steps to ensure that those persons have the opportunity of making use of those services.
Clearly, commissioning bodies have a legal obligation to ensure that independent advocacy is available and that people who wish to access advocacy support can do so. The right applies to everyone who has a mental disorder, to both group and individual, independent advocacy services. The term 'mental disorder' is defined in section 328 of the Act and includes any person with: a mental illness; a personality disorder and a learning disability. People with dementia and acquired brain injury are also covered by the Act.
In summary, the right to access independent advocacy applies to anyone person who has a mental disorder regardless of: age, disability, ethnic origin, culture, faith, religion, sexuality, social background or personal circumstances; whether or not they are subject to compulsion and whether or not they are ordinarily resident in Scotland.
Community Care (Direct Payments) Act 1996
The Policy and Practice Guidance issued to local authorities by the Scottish Executive in June 2003 on the implementation of Direct Payments states that:
'129. It is essential that local authorities ensure that people are able to access an independent advocacy service in their area. Local authorities must ensure that independent advocacy plays a role in the successful operation of direct payments. Where local support organisations also provide an independent advocacy service it is important that the operations are kept entirely separate.
130. In general, independent advocacy can help to:
- promote respect for the rights, freedoms and dignity of people, both individually and collectively;
- ensure people receive the care or services to which they are entitled, and which they wish to receive;
- enhance people's autonomy;
- assist people to live as independently as possible and in the least restrictive environment; and
- help protect disadvantaged people from abuse and exploitation.
131. The Minister for Health and Community Care has been explicit in his expectation that all NHS Boards, in partnership with their local authority planning partners, should ensure that independent advocacy is available to all those that need it.
Statutory commissioners should ensure advocacy development plans include provision for people who are eligible for direct payments. This includes people who have not made a decision to take up direct payments but may wish to have support in considering this option.'
Standards
Principles and Standards in Independent Advocacy Organisations and Groups
The Principles and Standards in Independent Advocacy Organisations and Groups was published by Advocacy 2000 in January 2002. The purpose of this document is to describe what effective independent advocacy is about, and sets out the key principles and standards of Independent Advocacy as it is practised in Scotland. It describes the key principles, standards and outcomes for all independent advocacy organisations and specific ones for the three main models of independent advocacy (individual professional (paid and volunteer); citizen and collective and self-advocacy groups).
The Scottish Executive Health Department now has lead responsibility for this document and is currently in the process of updating this document. A new document will be produced in spring 2006.
The Regulation of Care (Scotland) Act 2001
The Regulation of Care (Scotland) Act 2001 set up the Scottish Commission for the Regulation of Care (The Care Commission), which inspects and regulates care services by taking account of the National Care Standards. These include Standards that have been developed for advocacy.
National Care Standards were developed for every care service regulated by the Care Commission and are published and reviewed by the Scottish Executive. They have been developed from the point of view of people who use care services and they describe what each person can expect from their service providers. Copies of the standards can be downloaded from the Scottish Executive website.
Care services regulated by the care commission include: adoption agencies, care homes, adult placement services, care at home, childcare agencies, pre-school education, boarding school care, foster care and family placement services, housing support services, care and welfare in accommodation for offenders, hospice care, independent hospitals and clinics, nurse agencies and short breaks and respite care.
The standards for advocacy are:
- You are encouraged and supported to use an independent and confidential advocacy service that can act for you. Staff will have information about any service that would help you in this way.
- If you have an independent representative (for example an independent advocate), staff will listen to what he or she has to say on your behalf, as if you were expressing the views yourself.
- If you belong to an advocacy group, staff will take seriously suggestions or proposals that come from the group.
Commissioners should take steps to support commissioned service providers to meet these standards.
NHS Quality Improvement Scotland ( NHSQIS)
The purpose of NHS Quality Improvement Scotland ( NHSQIS) is to improve the quality of healthcare in Scotland by setting standards and monitoring performance, and by providing NHSScotland with advice, guidance and support on effective clinical practice and service improvements.
A part of this remit is to develop and run a national system of quality assurance of clinical services. Working in partnership with healthcare professionals and members of the public, NHS QIS sets standards for clinical services, assesses performance throughout NHSScotland against these standards, and publishes the findings. The standards are based on the patient's journey as he or she moves through different parts of the health service.
All NHSQIS standards include reference to the provision of independent advocacy in the delivery of health services.
NHSQISDraft Standards - January 2004 Healthcare Governance: Working Towards Safe and Effective, Patient-Focused Care cites:
'2. STANDARD: Delivering Services - "how we work together"'
2.2 Patient focus public involvement ( PFPI)
NHS Boards must respect the views and needs of individuals, the wider public and local communities, and reflect this within their strategies. They will provide:
- Advocacy services that are available to all users and potential users of their services ... and have in place advocacy policy(s).'
NHSQIS will monitor this commitment as with all Healthcare Governance Standards.
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