Advocates and the Deprivation of Liberty Safeguards

What is an advocate?

If a friend or family member has been placed under a Deprivation of Liberty Safeguard then they may be appointed an advocate. The advocate’s role can be a little bit confusing so we have taken some time to breakdown what it is to have an advocate.

There are various advocacy agencies across the UK, each employ independent advocates. An advocate will work with a case load of individuals, ensuring that their voices are heard and the professionals involved are listening to the requests or concerns of the person in question. The advocates undergo vigorous training to ensure they are able to represent individuals with a large variety of mental health needs, they are very experienced and passionate in helping those who find themselves deprived of their liberty.

Why is an advocate appointed?

An advocate is appointed under section 35 of the Mental Capacity Act 2005 (MCA) to all people who are assessed to lack capacity to make decisions around where they live and the type of care they receive and are deprived of their liberty. The advocate is appointed by the local authority, this happens for all people who have been assessed to lack mental capacity to make decisions about their care and where they should live amongst other decisions. When the local authority has assessed a person as lacking capacity, under the MCA, they are legally bound to appoint an independent mental capacity advocate. This is where the advocate’s role begins.

What does an advocate do?

The advocate is independent to the local authority, their role is set out below from the 2006 regulations:

Gathering information

• Meet and interview the person in private.
• Examine relevant health and social care records.
• Get the views of professionals and paid workers.
• Get the views of anybody else who can give information about the wishes and feelings, beliefs or values of the person.
• Find out other information which may be relevant to the decision.

Evaluating information

• Check that the person has been supported to be involved in the decision.
• Try to work out what the person’s wishes and feelings would be if they had capacity to make the decision and what values and beliefs would influence this.
• Make sure that different options have been considered.

Making representations

• Advocates should raise any issues and concerns with the decision maker. This could be done verbally or in writing. Advocates are required to produce a report for the person who instructed them. In most cases this should be provided to the decision maker before the decision is made.
• People who instruct advocates must pay attention to any issues raised by the advocate in making their decision.

Challenging decisions

• In many cases advocates will be able to resolve any concerns they have with the decision maker before the decision is made. Where this has not been possible advocates may formally challenge the decision-making process. They can use local complaint procedures or try to get the matter looked at by the Court of Protection.

How can our Mental Health Solicitors help?

If an advocate has carried out the steps above, and the person who lacks capacity continues to wish to challenge the Deprivation of Liberty Safeguards (DoLS) they are then legally bound to instruct a legal representative to make an application to the Court of Protection so that an independent judge may make a decision in the best interests of the person assessed as lacking capacity. It is at this point an advocate will approach a solicitors’ firm, such as David Gray Solicitors, to assist in the application process. Call our team on 0191 232 9547 or complete this contact form.

Your Voice Counts is a charity that supports people with learning disabilities, autistic people and people who are at risk of exclusion due to disability, illness or other challenges have more information around advocacy at www.yvc.org.uk