Law Commission Consultation – OPAAL’s Response to the Mental Capacity and Deprivation of Liberty Consultation



The Older People’s Advocacy Alliance (OPAAL) is the only national UK membership based organisation supporting, promoting and developing the provision of independent advocacy services for older people. Our members have empathy with, and an understanding of the things affecting the lives of older people and are engaged in ensuring the rights of older people are upheld.


All of our members provide advocacy to older people and carers. Many of our member organisations are involved in providing non-instructed advocacy. OPAAL’s membership base has current and historical experience of providing statutory advocacy including Care Act Advocacy.


We know that many of our member organisations are compiling their own responses to this consultation, OPAAL’s response has been written following discussions with some of our members and tries to draw a focus to the issues we know our membership base are concerned about in relation to advocacy support for older people.


This response relates to Chapter 7; Restrictive Care


Widening the remit in replacing the DoLS safeguards with a system of protective care to include modern care settings including supported living accommodation and shared lives schemes is to be welcomed, this will mean that more older people are protected. The introduction of the role of the Approved Mental Capacity Practitioner (AMCP) could see a reduction in delayed discharges from hospital and delays in completing needs assessments and care plans.


This proposal seems positive, but OPAAL recommends further consideration is given to exploring the full role of the AMCP role, for example it is not clear to OPAAL how the role and powers of the AMCP interact with the powers of the local authority around discharge. We would welcome a casestudy or example setting out how these powers would interact.


This response relates to Chapter 9; Advocacy and the RPR


OPAAL’s stance is that there is much to be welcomed in the proposals around advocacy, though we have some questions about how advocacy will be supported, developed and resourced in the future. OPAAL is keen that these developments be made in consultation with the advocacy sector, older people and carers.


OPAAL believes that a streamlining of statutory advocacy could result in older people having a better experience of access to advocacy and advocates could benefit from greater clarity of roles. A big positive from our reading of these proposals relating to advocacy particularly is that they are supportive, person centred and they are in tune with human rights, this is very encouraging.


OPAAL believes that there is something to be gained from a streamlining of IMCA and Care Act Advocacy roles. Our membership indicates to us that the Care Act role is more expansive than other statutory roles, and is in tune with the language of human rights. It is this language that our sector wishes to preserve and given the language of this consultation places similar value on being person-centred this is to be welcomed.


These proposals also present an opportunity for streamlining referral routes and the information that professionals need in order to make an appropriate referral. OPAAL thinks that this could support a movement towards ‘no wrong door’ for statutory advocacy support which will provide a simplification that we believe professionals will welcome and older people will then benefit from timely and appropriate referrals being made.

Whilst OPAAL believes these recommendations are appropriate we urge that proposals are carefully aligned to ensure that all rights and entitlements are upheld and nothing is lost in a streamlined process.


OPAAL welcomes the acknowledgement at paragraph 9.3 of the Consultation Paper that in some parts of the country advocacy services often lack sustained funding and are not easily accessible to certain groups. There are wider resource issues which OPAAL believes must be considered here; our membership has raised concerns recently about how statutory advocacy services are resourced, planned and supported. Commissioners will require robust guidance about resourcing statutory advocacy under this new model of protective care.


There seems to be a wide held belief that Care Act Advocacy is being well resourced. OPAAL’s membership base raised concerns about this earlier in the year resulting in a guest article being published in Community Care magazine on behalf of members:


OPAAL is concerned that resourcing for Care Act advocacy is already less than required to meet the levels of need. This is supported by the findings of a recent report commissioned by the Advocacy Action Alliance where it was reported that:

‘It was very noticeable however that out of the 24 local authorities where total spend was reported, in the majority of cases (17 out of 21) the spend was less than 60% of what the Care Act ready reckoner had indicated it should be for 2015-16 and the average was less than 50%. In other words, most local authorities in this sample, were reported as spending significantly less on Care Act advocacy than it had been estimated they needed to in order to meet likely levels of need.’


Provisional Proposal 9.1 which recommends that an independent advocate must be appointed for any individual subject to protective care is welcomed. OPAAL is concerned that the costings for this are not fully reflected in the ‘Mental Capacity and DOL Consultation Impact Assessment’. For example, the estimated costs for training new advocates appears to be based on the assumption that 25% of people eligible for DOLS have a right to an advocate, and the further assumption that only 10% of this group will take up the right to advocacy. This is a small percentage compared to the recommendation for advocates for all those subject to the protective care scheme.


Advocacy provider members already highlight that advocates are under significant pressure. If advocates are required to take on different roles this will have resource and training implications for advocacy providers.  In the article for Community Care magazine referenced above we raise the issue that advocacy providers are currently not in a position to take on relevant persons representative work for example because of resource issues, streamlining these roles will not be effective unless properly resourced.


OPAAL has some concerns about consolidation of Care Act Advocacy with IMHA. The IMHA role is very different to the Care Act Advocacy role and it is unclear to OPAAL what is to be gained from consolidation under care act advocacy, again we must raise issues around resourcing. There remain issues about how IMHA is commissioned and underfunded, this means people continue to be denied access to it:


Further comments


Finally, OPAAL’s membership base is engaged in the delivery of a wide range of advocacy roles that sit outside of statutory advocacy provision. This consultation does not reference the very important role generic, or non-statutory advocacy provision for older people plays in supporting vulnerable adults to make informed choices, understand their rights, access information and speak up for themselves and be heard.


Non-statutory advocacy plays a hugely supportive role in safeguarding and protecting vulnerable older people. Furthermore the consultation references that carers, family and friends be supported to understand to understand the processes around safeguards, again this supporting role can be provided by non-statutory advocates.


OPAAL recommend that there should be inclusion of access to these forms of advocacy in the future development of legislation to ensure older people’s rights are upheld.