On Wednesday 13 April, SIAA hosted a roundtable for members on the Scottish Mental Health Law Review Consultation with the support of colleagues from the Scottish Mental Health Law Review team.
At the roundtable, colleagues from the Scottish Mental Health Law Review team provided an introduction to the consultation and its suggested recommendations. The discussion focused on the recommendations around individual and collective independent advocacy, non-instructed independent advocacy and independent advocacy for children and young people. SIAA will submit a response to the consultation based on our members’ views and comments around the recommendations with independent advocacy elements.
Our members generally welcomed the recommendations on independent advocacy, anticipating that more resourcing would be needed for effective implementation. They also highlighted that it was very positive that the recommendations around strengthening collective advocacy were very comprehensive, however, the ones on individual independent advocacy lacked the same level of detail. SIAA members wishing to contribute further views on individual independent advocacy to this response may wish to refer back to the recommendations SIAA has previously made to the Law Review following contributions from member organisations, in this evidence paper available on our website.
During the roundtable discussion, and considering upcoming national legislative and policy changes, our members expressed that it would be key that these recommendations contribute to a broader picture of moving towards greater human rights realisation in Scotland.
SIAA members are encouraged to share further views and comments on the Scottish Mental Health Law Review Consultation by filling in this form, the link will be open until Friday 22 April.
Scottish Mental Health Law Review Consultation key discussion points
Here is a summary of the key points that were discussed by our members:
Independent advocacy recommendation
- Independent advocacy (IA) offered on an opt out basis across mental health and incapacity law.
See Consultation Paper Chapter 3 Supported Decision Making, page 52.
SIAA member views and comments
- Members were positive and supportive of offering independent advocacy on an opt-out basis. Members felt this gave the power to the people using mental health services or coming into contact with the system.
- How potential advocacy partners are told about IA is key, members commented that the best people to explain IA is independent advocates themselves.
- Resourcing of opt-out IA should be carefully considered.
- The importance of maintaining the independence of advocacy was raised, the independence of advocacy organisations and groups was essential in the provision of advocacy, and this should be supported within the recommendations.
- Members felt an opt-out for independent advocacy would mean they could reach people before crisis point and independent advocacy could show its worth in being there as a preventative option rather than just in statutory processes.
- Members said that they were supportive of the opt-out basis recommendation and emphasised the importance of maintaining IA standards and potentially looking at a qualification for independent advocates so that the quality of independent advocacy in Scotland could be measured and maintained.
- Members highlighted that independent advocacy should be for everybody and the opt-out basis would reflect that and prevent people from missing out on advocacy.
- Members expressed concerns about the impact the opt-out basis would have as it would increase demand on advocacy, new resources would be needed to make this feasible.
Non-instructed advocacy recommendation
- Non-instructed independent advocates are allocated to all persons who are not able to instruct an independent advocate.
See Consultation Paper Chapter 3 Supported Decision Making, page 57.
SIAA member views and comments
- Members supported this recommendation as they believed it would help to safeguard people and realise their human rights. People without capacity would be supported in decision making and be able to better coproduce life outcomes.
- Members felt the recommendation would allow space for people to be involved in decision making and would provide opportunity for a more balanced approach to decision making.
- Members had questions around capacity assessments and increasing non-instructed independent advocacy. The review team responded that they were looking at moving away from a clinical model of capacity assessment that was often based on diagnosis, taking a lead from the UNCRPD around capacity and further information about the approach could be found in the consultation paper around the human rights enablement framework.
- Members raised concerns that the communication aids element of the consultation was conflated with non-instructed advocacy, explaining that there would be many people with capacity that used communication aids and some people deemed to have lacking capacity that would not need communication aids.
- Referral routes for non-instructed advocacy were currently not consistent across Scotland with some areas providing more non-instructed advocacy than others and little provision for children and young people. Members noted that strong referrals routes for this should be considered as part of the recommendations.
- Members emphasised the importance of non-instructed advocacy and the time needed to ensure non-instructed advocacy was to the highest possible standard. They mentioned that more training and development opportunities around this would be essential.
- Members were keen to see more work being done around a definition of non-instructed advocacy for children and young people, as this was an area that guidance and practice was lacking.
Collective advocacy recommendations
- Collective advocacy groups should have an explicit right to raise a court action for human rights breaches. This right must be supported by access to legal advice, guidance and support for groups who wish to take this step.
- There should be an alternative way for collective advocacy groups to be able to escalate human rights issues that remain unresolved and unaddressed by services to another scrutiny body/Commissioner to investigate. This would need to be supported by a participatory process of referral and consideration within the identified scrutiny body.
- A duty on the Scottish Government to secure and support effective collective advocacy organisations. This should be at a local and a national level. The need for an obligation to ensure that collective advocacy for children and young people is supported is discussed more in chapter 9.
- There should be a duty for NHS Board/local authorities to provide and resource this. However, collective advocacy groups cannot be ‘mandated’ into existence, they must continue to emerge from the needs, wants and views of their potential members.
- Collective advocacy members and workers to lead on the development of a system for supporting, monitoring and evaluating collective advocacy groups. This system needs to respect their independence and be meaningful to the groups, commissioners and the public.
- The co-production of ‘Standards of Engagement’ between services and scrutiny bodies, and collective advocacy groups to ensure they have the opportunity to be involved in all aspects of service delivery that impact their members. We do not propose any reciprocal duty on groups to take these opportunities. They remain accountable to their members.
- Development of an opt-in programme of advocacy related learning to support the development of more advocacy workers and peer leaders.
- A national strategy for raising awareness and understanding of collective advocacy.
See Consultation Paper Chapter 8, Accountability, pages 119 to 122.
SIAA member views and comments
- Members commented that collective advocacy takes time and it can currently be seen as an ‘add on’ and these recommendations would go a significant way to addressing this and bring parity of esteem between collective and individual independent advocacy.
- Members acknowledged that because of the current provision of collective advocacy there would likely need to be upskilling and learning across independent advocacy organisations to support more collective advocacy as it was not currently embedded in the way individual independent advocacy is.
- Recommendations were supported by members as it was felt collective advocacy would help address systemic issues and create longer term change that individual advocacy cannot address in the same way as there was not the same concerns about individual repercussions in the collective.
- It is fundamental to independent advocacy practice that independent advocacy should support people to be able to speak out in whichever way suits them best, more collective advocacy would mean more options for people wishing to have their voices heard and rights upheld.
- Funding and legal aid would be crucial for supporting the recommendations.
- Members said that collective advocacy was important for carers.
- Members welcomed recommendations but emphasised that it was crucial that agendas were set by collective advocacy groups themselves and not dictated to by public bodies or commissioners looking to make improvements. The ‘standards of engagement’ coproduction would be key to this.
Independent advocacy for children and young people recommendations
- The duties in the 2003 Act to secure advocacy should be strengthened to ensure that any child with a mental disorder is made aware of their right to independent advocacy and is able to obtain this when needed.
- The various duties in respect of advocacy (in mental health, in Children’s Hearings, and in additional support for learning) should be streamlined to ensure comprehensive, holistic and child-centred individual advocacy services.
- These duties should be integrated with broader duties to ensure support for decision making, which is discussed below.
- There should be a new duty on Scottish Ministers to support collective advocacy for children with mental disorder.
See Consultation Paper Chapter 9, Children and young people, pages 141 to 142.
SIAA member views and comments
- Members mentioned how little provision of independent advocacy there was for children and young people, despite their right of access in the current Mental Health Act.
- Members commented that they were supportive of recommendations but that, again, resourcing needed to be available to provide IA at a local level.
- IA for children and young people needed to be addressed across different policy areas and MH law would only be one aspect of this.
SIAA would like to thank our members and the Scottish Mental Health Law Review team for joining a very fruitful discussion. We are now gathering further views from our members to incorporate them and the feedback from the roundtable into a draft response that will be shared with members for comment and contribution. SIAA will then publish our response and we strongly encourage members to submit their own responses and use any part of the SIAA response to support their own contribution.