Is mental health advocacy better than nothing ?

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10 July

I worked as an advocate for eight years.

When I started, there was no such thing in name as IMHA (Independent Mental Health Advocacy) for people detained under the Mental Health Act 2003 as it then stood (commonly known, for no good reason, as ‘being sectioned’), but our contract, and our arrangement with the mental-health trust, meant that we went onto the wards and could give people just the same help with the Act, but without the powers given to IMHAs, for example, to look at hospital records (I never needed to).

IMHA is a very specific thing. The training to become one, I have to say, is rubbish and factually incorrect or misleading in several places, when, that is, it is not box-ticking and jumping through hoops. That apart, one could and should be very competent in being able to explain a person’s rights to him and her.

Yet that is not because of the training, but because of the limited compass of what one typically needs to know from day to day, whereas the vast numbers who are on supervised community treatment (usually thought of as a Community Treatment Order, or CTO, though it is not an Order as such) indicate either that few people take the chance to have their rights explained, or that (which has to be laid at the IMHA’s door) they do not understand their rights.

Considering supervised community treatment is a triggering event for a person to be advised of his or her rights to see an IMHA, so I should be interested to see figures for how many exercise it. Just a guess, but I imagine few, because it is typically hard, as a patient, to believe that there is a just and fair system and that one has any right that is not compromised.

After all, the person may already have poured his or her heart out to an advocate that he or she should not have been detained under (the civil sections of) the Act, and have been told that, all impressions and intents to the contrary, the psychiatric unit is not a prison or part of the criminal-justice system. Under IMHA, one would be able to know more about the detention, and, safeguarding not telling the person something that would injure his or her health, to pass that reason on.


So that is IMHA, and the typical scope of enquiries that one might have under the Act. Contrast that with, say, a matter of contract or of family law for the same person, whether or not still in hospital. For good or ill, advocates largely ignore the question of capacity, and so will support clients (including seeking to find them, without charge, increasingly unavailable legal representation) to do what they seek. This never happened to me, but he or she may want to give up a tenancy, and, if he or she refuses to have advice on doing so, may be guided through an irreversible process that will later be regretted.

That is one point where I say that advocacy is not better than nothing : with nothing, the person might not get there on his or her own, whereas what, of lasting good, has been achieved in the name of empowering the client ? I had colleagues who had had to help with such folly in the name of empowerment, and who gained some reassurance, by relying on the generalized and self-perpetuating ‘advocacy principles’, that they had, by doing their job, done the right thing. I cannot say or think so – that is the mindset of advocacy, but it is wrong.

Advocacy puffs itself up with the notion that it is a profession. It even uses terms from ‘taking instructions’ to ‘attendance notes’ that are (did one’s colleagues but know it) properly those of solicitors, but with this important difference : The Law Society will not allow a solicitor to proceed, without some independent verification of capacity, if her or she doubts that the client lacks it (in relation to the legal task in hand and the decisions that have, or may have, to be taken). There is no equivalent of The Law Society for so-called generic advocates, but just guidance from bodies such as Action for Advocacy.

Advocacy is not a real profession, although caught by the requirement to provide a service with reasonable care and skill (but advocacy services have scant notion of liability, risk and the scope of a duty of care), and it will sidestep the protection that, as just seen, a solicitor will have to employ to achieve outcomes that can be as damaging, if not more so.

Damaging, if not pointless, for my manager once required me to fly in the face of a direction from a judge in the belief that going to a full hearing would give the client closure* (I had no such belief, and it did not, because he wanted to appeal, and then, when told that he had no grounds for an appeal, wanted a second opinion) : to my mind, if a judge, prior to trial, expresses the view that, without x, a case cannot succeed, one either gets x, or tells the client that one cannot support him to go to trial unless he agrees to get it.

What we did was to go to trial without x, and it was a futile exercise, built on unrealistic ideas that the client would see that the process had been gone through and exhausted, in giving the client the right to ignore a very big judicial piece of advice for no very good reason. Did the client have capacity in relation to these matters ? I rather doubt so, and his ‘instructions’ were of a repetitive, yet not always consistent, kind that was unlikely to find judicial favour in any case. I say all this as a former solicitor (though none of my colleagues had any legal training whatever.)


So on lack of proper safeguards for imprudent decision-making there are concerns, but advocacy is also founded on the shaky basis, touched upon already without calling it such, of giving the person the right to have his or her say. If it’s having a say that rights were infringed, and that hospital staff should not have done what they did, how crushing is it to put all that into a complaint, and then have back from the complaints department that there is ‘no evidence’ that what the client claims happened.

Does one, in hindsight, guard the client’s expectations of the process so that he or she will not be crushed by the outcome, or has the client made his or her own bed ? To make the complaint with the client, it was necessary to come alongside and to empathize with what he or she said, and one is forbidden (despite being permitted to say what is likely to happen from past experience) to express one’s own opinion, because that is a big advocacy no-no except by taking the client, with his or her consent, to someone else such as a solicitor who can express one, and give advice.

If, faced with a client who is upset by what happened and wants to make a complaint, one cannot really say that most complaints procedures are a whitewash and that the client will just be upset more, because that would stray from what is likely to seeking to persuade or advise : the client alone must decide, and one has no opinion to express.

The blind leading the blind ? Sadly, yes, I think so, however well-meaningly grounded in peer support, and little better than kindly do-gooders, unanswerable to anyone much when it all comes unstuck. Add to that people who know things that they do not, such as how one cannot (one cannot ?) be dismissed for being off sick or that, even if the time-limit for bringing an employment claim may turn to be passed, one can simply argue that one could not bring a claim before (and so simply), and the cacophony becomes unbearable.

Either non-IMHA advocates such know more, and be qualified as legal executives, or they should do less. They are not professionals in any meaningful sense, and they should not be allowed to help people without capacity to do objectively undesirable things on some woolly basis of empowering them.

As to IMHA, I reserve judgement, but a five-day training on the Act before IMHA came in was a much better grounding in how it works than the dedicated IMHA module. The advocacy world went soft when the statutory training was announced : there should have been exemptions for existing advocates, more intensive training for new advocates, and none of this vague competency-based accreditation, which does not substitute for solidly understanding the Act and how it applies to different situations.


As if this were not enough, you can now read The Ten Glib Compromises of Advocacy (in retort to The Advocacy Charter)...



End-notes

* It may be explicit enough in what I wrote last night, but I still remember so much of the blinkered vision of advocacy's so-called principles that I was accustomed not to portray that as appalling cynicism - support the client to go to trial, not because we believe that he now, with the stance that he has taken, stands any chance, but just so that we have reason to shut him up !

In the same way, one insulated oneself, in the way that I mentioned earlier on, from questioning whether the principles that had one facilitate someone doing / not doing something just because, at that moment, he or she felt like doing / not doing it were sound or right.


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