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Slide 12



Notes

  1. There are similarities with the Mental Capacity Act (MCA), however the duty to provide independent advocacy under the Care Act is broader and applies to a wider set of circumstances. The Care Act provides independent advocacy support to:

  • people who have capacity, but who have substantial difficulty in being involved in the key care and support processes, as well as those who lack capacity

  • people in relation to their assessment and/or care and support planning regardless of whether a change of accommodation is being considered

  • people in relation to the review of a care and/or support plan (as a duty not a power)

  • people in relation to safeguarding processes (though IMCAs may be involved if the authority has exercised its discretionary power under the MCA)

  • carers who themselves have substantial difficulty in engaging whether or not they have capacity

  • people for whom there is someone who is appropriate to consult for the purpose of best interests decisions under the MCA, but who is not able and/or willing to facilitate the person’s involvement in the local authority processes.




  1. The statutory guidance stipulates the role of an independent advocate under the Care Act as being less about informing best interests decisions, and more about actively supporting the person to make the decision for themselves and participate in care planning, and then representing their interests when this is required. The regulations are framed in terms of helping a person to understand and exercise their rights, and also challenging decisions where necessary.




  1. There are likely to be people who qualify for independent advocacy under the Care Act but not an Independent Mental Capacity Advocate (IMCA). However, most of the people who qualify for independent advocacy under the Mental Capacity Act 2005, in relation to care planning and care review, will also qualify for independent advocacy under the Care Act. Both the Care Act and the MCA recognise the same areas of difficulty but the test with the MCA is whether the person ‘lacks capacity’ to make specific decisions where as the Care Act is having substantial difficulty in being involved in key local authority processes.




  1. To enable the person to receive seamless advocacy and not to have to repeat their story to different advocates, the same person could provide support as an independent advocate in both roles, if trained, qualified and with the appropriate skills to do both. However, under whichever legislation the advocate providing support is acting, they should meet the appropriate requirements for an independent advocate under that legislation.




  1. The local authority must meet its duties in relation to working with an IMCA provided under the MCA as well as those in relation to an independent advocate under the Care Act when the independent advocate is acting in both roles.







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