A legal wrong

In my last post I showed that at least 12,000 people are being denied there legal right to access independent mental health advocacy. The CQC report  -Monitoring the Mental Health Act also states that 1 in 8 people who contact the IMHA service don't get to see an advocate. Given that IMHAs have a duty to respond to referrals, yet the report says that 1 in 8 people who request an IMHA do not get to see one. How can that happen? Are advocacy services wilfully ignoring their legal duties?

My experience suggests not. It has been known since 2009 that advocacy services have been  underfunded in regards to IMHA provision. This was recognised in the CQC report for 2010/11. Since then, despite increasing use of compulsory powers of the Mental Health Act, the funding of IMHA seems to have (at best) stayed constant. If demand increases and supply stays constant a shortfall is inevitable. There is  a problem with commissioning.

If the role of advocacy is to be developed in any way as a result of the abuse at Winterborne View, it would be in ensuring regular access to in-patient settings that do not depend on a referral. However, the CQC report shows that  roughly one quarter of settings have  no regular access to IMHA. That means the lessons of Winterborne are a long way from being acted upon.

A regular IMHA presence within in-patient settings is necessary if people's rights are going to be real rather than theoretical. This regular presence reduces the ability for staff to block access to advocacy services, allows advocates to see the regular ward environment and gives advocates the ability to perform a minor, proactive safeguarding role; spotting and challenging poor practice affecting people they are not directly advocating for. These actions would not be sufficient to guarantee the safety of patients and residents in care settings, but that responsibility lies ultimately with care staff. Advocacy's small role here is to act as a warning, a reporting mechanism, a means of identifying problems before they become disasters.

However, many advocacy services do not even have the resources to respond to the specifically requested need they face, never mind providing more proactive services to reach those who might not be able to ask for advocacy themself. As a result many people who are eligible for an IMHA never find out about it, and many who ask for support do not receive it. Some IMHA services even find themselves having to make tough prioritisation decisions about referrals that they receive; referrals to which they have a legal duty to respond. Sometimes, by the time they can respond to someone, that person is no longer there. This is no small thing. It is the denial of a legal right, and it has major consequences at a personal, financial and legal level.

At a personal level, I suggest that being deprived of support you were promised at a time of extreme distress is far from ideal. It adds to distress and suggests that you are not a high priority; your rights are secondary. From a financial perspective, plans that people actively collaborate in are more likely to be effective and create long term well being. That's a lot cheaper than poor planning and multiple re-admissions. Oh, and the person themself will have a better experience and be more likely to be treated with respect. Thirdly, legal duties are meant to be enacted. They are made to be real and tangible, they are not meant to be put into statute for political expediency or as some kind of window dressing. Local authority commissioners now have the responsibility to for facilitating this.

So what about the commissioners? Now that responsibility for commissioning IMHA has moved over to local authorities are we likely to see the legal obligation to resource advocacy provision better met? The CQC report seems to project a positive picture. It cites the important report The Right To Be Heard by Karen Newbigging and colleagues at the University of Central Lancashire. This called (amongst other things) for IMHA to become an opt out rather than an opt in service. The CQC report states,

"Commissioning of IMHA services moves to local authorities in April 2013, although responsibility for promoting access will remain with providers. Local authorities will be taking on this commissioning role at a time of financial austerity, and CQC hopes that the recommendation of the research is heeded"
I find it surprising to see a regulatory body publicly deferring to hope over experience or expectation.

The need for some level of regular outreach presence does not seem to have been recognised sufficiently by commissioners, never mind presumed access. Advocacy services have reported funding levels that are reducing despite an increase in demand and eligible populations. Advocacy is simply not seen as a high enough priority and the right to advocacy is seen as fudgeable because those who lose out are unlikely to take the matter to law.

The commissioning of advocacy has been widely variable across local authority areas.Too often, contract size is determined before need is established. The person holding the advocacy commissioning portfolio seems to change with depressing regularity.

Does CQC's apparent reluctance to get involved in this aspect  this may be explained by the inherent difficulty of finding the person or persons responsible for commissioning advocacy. Without a direct line to influencing, might CQC find it difficult to exert influence in this regard?

It has been suggested by some that IMHA commissioning will only become a priority when a local authority is sued by someone who was denied access to a right set out in law. That seems to place the responsibility on precisely the wrong person. Who should challenge poor commissioning practice, an individual aiming to recover from a traumatic incident or a regulatory/monitoring body. CQC is aware of large scale, systematic failure to comply with legislation. It has publicly stated this in its two most recent reports on the Mental Health Act. Is there not some obligation to act on this? Surely  monitoring is not enough when improvement is so clearly needed.

So, not wanting to offer problems without some possible ways of addressing them, here are a few ideas that might help CQC to address this problem:

1. Ensure that the line of CQC's enquiries about IMHA service commissioning goes via the Director of Adult Social Services. Local authorities can change their commissioning team as they see fit. The Director of Adult Social Services should know who is responsible for meeting this legal obligation.
2. Ask to see how the funding allocation for IMHA has been related to the number of uses of compulsory powers of the MHA in that local authority. If the LA can't produce evidence of this it suggests that commissioning has not been taken seriously.
3. Make the commissioning of advocacy, and particularly statutory advocacy, a core standard against which local authorities are judged in CQC inspections. CQC's framework already states that increasing and supporting service user voice and facilitating greater involvement in care planning are fundamental aspects of good care. IMHA is a particularly neatly defined method by which this can be measured. If the LA is not meeting its requirements where there is a legal obligation to do so, is it really likely to do so where it is merely good practice?

Until the commissioning of advocacy is better scrutinised and related to actual need, the legal right to advocacy will continue to go wrong.

Next time; why are mental health professionals not telling people their rights, some posters that should be put up in all psychiatric settings and a particularly worrying trend in outsourcing.