"I was never asked who I would like to act as my advocate, this was never discussed. It was just assumed that it would be my next of kin……"  

These are the words of a lady who was detained under the Mental Health Act 1983, having suffered a mental health breakdown. They illustrate her isolation. Her experiences pre-date the creation of Independent Mental Health Advocates ("IMHA's") by the 2007 amendment of the Mental Health Act 1983.  Consequently, one might think that she would now be referred to an advocate. Certainly that is the intention of the Mental Health Act, but the experience of charities in the mental health sector shows that this does not always happen in practice.

“The Mental Health Act sets out the hospital's duty to provide information about independent mental health advocates but the process is more re-active than pro-active. The Mental Health Act and its Code should be amended, so that instead of mere information being given as a starting point, the patient is given a directory of advocates and told that they have the right to instruct one of these.”

Section 130A of the Mental Health Act obliges local authorities to provide IMHA's to "qualifying patients." Briefly, these are children and adults, who are:

  • likely to be detained in a psychiatric hospital.
  • put under the protection of a guardian.
  • subject to a Community Treatment Order.   

The role of the IMHA is to help patients obtain information about and understand their rights under the Mental Health Act and the treatment which they are receiving. Section 130D sets out the hospital's duty to provide information about independent mental health advocates. The wording is fairly specific.  The hospital "shall take such steps as are practicable to ensure that the patient understands (a) that help is available to him from an independent mental health advocate; and (b) how he can obtain that help." These steps must be taken "as soon as practicable" after the patient is detained, as well as "both orally and in writing".  

So far, so good but the realities of a busy psychiatric unit may well serve to make these practicable steps very difficult indeed to achieve by these methods.

Sensitive steps

The Mental Health Act comes with a Code of Practice. Chapter 6 of that Code provides an explanation of the role of IMHA's and it clearly states that where a patient lacks capacity to decide whether or not to obtain help from an IMHA, then the hospital manager should ask an IMHA to attend the patient in order to explain what they can do. The Code also recognises that certain patients are going to need particular encouragement and assistance to seek the support of an IMHA, for instance, children, people with sensory impairments or people from ethnic minority groups. Hospital doctors should ask an IMHA to attend a patient where they think that step would be beneficial, but where they know that the patient is not going to take that step themselves. The Code makes it clear that this kind of step needs to be handled sensitively and recognises that a patient might well regard the arrival of a stranger as another threat to their personal liberty.

In addition, information should be given to the patient's nearest relative about the help provided by IMHA's and that information should make it clear that the IMHA represents the patient not the nearest relative. The patient can request the support of an IMHA, and access the Advocacy Service directly rather than being referred to a particular IMHA.

The writer takes the view that this process is more re-active than pro-active. Providing information about an IMHA to a newly admitted patient, who is likely to be confused and distressed may well fail to achieve the purpose of Section 130A, which was to provide an additional safeguard for patients in hospitals. What this article recommends instead is for the Mental Health Act to require hospitals to connect detained individuals to a directory of advocates.

There are a number of different Acts, which provide advocates for vulnerable persons. If we look at the Mental Capacity Act 2005, Section 37 requires a local authority to instruct an Independent Mental Capacity Advocate ("IMCA") to represent a person who does not have capacity. Section 37 is triggered only in certain situations, where serious medical treatment or a change in residence is proposed for the vulnerable person and where practically speaking, a person without capacity cannot choose or ask for an advocate. However, the Mental Capacity Act bypasses any kind of information giving stage, and proceeds directly to put the IMCA in place for the vulnerable person.

Likewise Section 26A of the Children Act 1989 requires local authorities to make arrangements for the provision of assistance to children and careleavers who wish to make complaints. That assistance includes representation by a specialist advocate. So again, the child or careleaver is connected up to an advocate as soon as the complaints procedure is triggered.

Finally Section 67 of the Care Act 2014 states that a local authority must, in certain circumstances, arrange for an independent advocate to be available to represent and support an individual adult's involvement in care assessment, planning reviews and safeguarding.

These are different situations, and a detained person may well refuse any kind of assistance. What is suggested is that the Mental Health Act and its Code is amended, so as to "join up the dots." This means that instead of mere information being given as a starting point, the patient is given a directory of advocates and told that they have the right to instruct one of these. The provisions that enable a hospital or nearest person to appoint an IMHA should be retained. This is the way in which to close a gap, through which some people may well be falling.

Malcolm Johnson is a solicitor. His book "An Advocates Guide to Complaints in England" written with Muna Adam and Lynn Brady is due to be published by Pavilion in April 2018 and is available to pre-order.

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