The Scottish Independent Advocacy Alliance (SIAA) has published new guidance on complaints about independent advocacy, together with additional resources for independent advocacy organisations and for people wishing to take forward a complaint about their lack of access to independent advocacy.
The guidance has two purposes. The first is to improve understanding of the right of access to independent advocacy that exists under the Mental Health (Care and Treatment) (Scotland) Act 2003 (2003 Act), and the legal duty that Health and Social Care Partnerships (HSCPs) have “to secure the availability” of independent advocacy for people covered by the Act. The second is to provide clear guidance and templates for handling two distinct types of complaint: complaints about the availability of independent advocacy, and complaints about the quality of independent advocacy.
The two types of complaint, availability complaints and quality complaints, have different legal bases, involve different responsible parties and therefore require different complaint processes.
An availability complaint arises where someone has a right of access under the 2003 Act but cannot actually get independent advocacy, maybe because the independent advocacy organisation has no capacity, the type of independent advocacy needed is not available locally, or the person has been told they do not meet criteria for independent advocacy but they believe they do. That complaint is not made to the independent advocacy organisation. It is made to the HSCP, because the HSCP is the body with the legal duty to ensure availability under the 2003 Act. It then follows the HSCP complaints procedure, delivered through the NHS board, local council or Integration Joint Board, with a final right of escalation to the Scottish Public Services Ombudsman.
A quality complaint is about a person’s experience of the independent advocacy they received. It might be how they were treated, decisions about their support, independence, confidentiality, or how their information was handled. It is made to the independent advocacy organisation and handled under its own complaints policy.
A good understanding of that distinction protects the independence of advocacy while ensuring rights under the 2003 Act are upheld.
Only 5% of people can access their right under the 2003 Act
In 2022, the Scottish Mental Health Law Review identified that only around 5% of people with a legal right to access independent advocacy under the 2003 Act were actually accessing it. SIAA is clear that the publication of complaint routes is not, on its own, a solution to the provision gaps that exist in connection with the 2003 Act. As far as SIAA is aware, a complaint about the right of access to independent advocacy not being realised has never reached SPSO stage. SIAA is interested to see whether that changes.
SIAA also recognises that many people will not have the support to pursue a complaint, particularly where the concerns that led them to seek independent advocacy in the first place are more pressing, and complaining about a lack of access may not be a priority.
The wider purpose of the guidance is therefore to raise awareness among independent advocacy boards, commissioners and national stakeholders that the right of access exists, has existed for more than 20 years, and that it is unacceptable that access remains so low because of a narrow interpretation of the legal duty. Independent advocacy is a human rights tool: it is about voice and everyday accountability. Funded securely, independent advocacy is preventative, saves public services money (for every £1 invested there are £12 of savings for the NHS and local authorities), and ensures a person’s voice is heard. In other words, independent advocacy benefits people and services alike — this was recognised in the 2003 Act, and commissioners must therefore be supported to fund it appropriately.
Using the guidance with commissioners
SIAA encourages member organisations that receive funding related to the 2003 Act right of access to adapt the template policies for their own use, and strongly recommends discussing revised policies and templates with local commissioners. Sharing the guidance, and explaining what has been updated and why, serves as a practical reminder of commissioners’ legal duties under the 2003 Act. It can also open up a broader discussion about the full breadth of the duty to ensure availability.
The guidance and all three appendices are available on the SIAA Information Hub:
- SIAA Guidance on Complaints about Independent Advocacy (Quality and Availability)
- Appendix A: Quality Complaints Template – a policy template to adopt or adapt
- Appendix B: Availability Complaints Guidance – guidance for making a complaint about lack of access to independent advocacy
- Appendix C: Sample Complaint Letters – template paragraphs and letters for each stage of an availability complaint
SIAA is open to feedback on the guidance, templates and sample letters, and will update them in response to comments from member organisations. Contact enquiry@siaa.org.uk to provide feedback.
