The right to access independent advocacy in legislation & policy

The right to access independent advocacy was first enshrined in the Mental Health (Care & Treatment) (Scotland) Act 2003. This page details where independent advocacy is mentioned in key parts of Scottish legislation or policy.

Mental Health (Care & Treatment) (Scotland) Act 2003

The right to access independent advocacy was first enshrined in the Mental Health (Care & Treatment) (Scotland) Act 2003, section 259 of the act states:

Every person with a mental disorder shall have a right of access to independent advocacy; and accordingly it is the duty of

  1. a) each local authority, in collaboration with the (or each) relevant Health Board; and

(b) each Health Board, in collaboration with the (or each) relevant local authority, to secure the availability, to persons in its area who have a mental disorder, of independent advocacy services and to take appropriate steps to ensure that those persons have the opportunity of making use of those services.

It means that anyone with a mental disorder in Scotland can access independent advocacy. The Act places a duty on NHS Boards and LA to fund independent advocacy.

Adults with Incapacity (Scotland) Act 2000

The Adults with Incapacity (Scotland) Act 2000 was amended by the Adult Support and Protection (Scotland) Act 2007 which states:

In determining an application or any other proceedings under this Act the sheriff shall … take account of the wishes and feelings of the adult who is the subject of the application or proceedings so far as they are expressed by a person providing independent advocacy services.

The Adults with Incapacity (Scotland) Act (2000) – the AWI Act – provides a legal framework to protect the interests of adults who are assessed as lacking the capacity to make their own decisions about their welfare, money and property.

The AWI Act assumes that all adults have the capacity to make their own decisions unless and until they are formally assessed as lacking capacity. If the adult has granted Power of Attorney prior to their assessment of incapacity, the Attorney they have appointed can act on their behalf with full legal authority.

Adult Support and Protection (Scotland) Act 2007

Adult Support and Protection (Scotland) Act 2007 amended The Adults with incapacity (Scotland) Act 2000 and states:

In determining an application or any other proceedings under this Act the sheriff shall … take account of the wishes and feelings of the adult who is the subject of the application or proceedings so far as they are expressed by a person providing independent advocacy services.

Education (Additional Support for Learning) (Scotland) Act 2004

The Education (Additional Support for Learning) (Scotland) Act 2004 states:

Where, in connection with the exercise of an education authority‘s functions under this Act in relation to any child or young person, the relevant person wishes … another person (referred to as an advocate) to;

(i) conduct such discussions or any part of them, or

(ii) make representations to the authority, on the relevant person‘s behalf, the education authority must comply with the relevant person‘s wishes.

Education (Additional Support for Learning) (Scotland) Act 2009

The Education (Additional Support for Learning) (Scotland) Act 2009 adds to the Education (Additional Support for Learning) (Scotland) Act 2004, and states:

14A Provision of advocacy service: Tribunal

(1) The Scottish Ministers must, in respect of Tribunal proceedings, secure the provision of an advocacy service to be available on request and free of charge to the persons mentioned in subsection (2).

(2) The persons are:

(a) in the case of a child, the child‘s parent,

(b) in the case of a young person;

(i) the young person, or

(ii) where the young person lacks capacity to participate in discussions or make representations of the type referred to in subsection (3), the young person‘s parent.

(3) In subsection (1) advocacy service means a service whereby another person conducts discussions with or makes representations to the Tribunal or any other person involved in the proceedings on behalf of a person mentioned in subsection (2).

Guidance on Looked after Children (Scotland) Regulations 2009 and the Adoption and Children (Scotland) Act 2007

The Guidance on Looked after Children and the Adoption and Children (Scotland) Act provides guidance on the requirement to consider the views of the child. The underpinning principle is summarised as follows:

children and young people should not be passive in decision-making processes. They have the right to input into decisions about their lives and the services provided to them.

The Children’s Hearing (Scotland) Act 2011

The Children’s Hearing (Scotland) Act introduces a requirement to ensure that children and young people going through the Children‘s Hearings system will, for the first time, be able to get advocacy support. The 2011 Act defines advocacy support as;

services of support and representation for the purposes of assisting a child in relation to the child‘s involvement in a children‘s hearing.

Charter of Patient Rights and Responsibilities 2012

The Charter sets out a summary of the rights and responsibilities of patients using the NHS in Scotland, and of people who have a personal interest in such patients‘ welfare. The Charter states that:

You have the right to request support when making decisions about your health care. You may ask (and if you have a mental health disorder you have a right) to have an independent advocate to help you give your views. NHS staff can help you arrange this.

Social Care (Self-directed Support) (Scotland) Act 2013

The Social Care (Self-directed Support) Act which applies to children, adults and carers, states that:

The authority must give the person…

(d) in any case where the authority considers it appropriate to do so, information about persons who provide independent advocacy services (within the meaning of section 259(1) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13)).

Social Security (Scotland) Act 2018

The Social Security (Scotland) Act 2018 states in section 10, Right to Advocacy

Every individual to whom subsection (3) applies has a right of access to independent advocacy in connection with the determination of the individual’s entitlement to be given assistance through the Scottish social security system.

This subsection applies to an individual if, owing to a disability, the individual requires an advocate’s help to engage effectively with the process for determining entitlement to be given assistance through the Scottish social security system.