Mental capacity advocates should be available to vulnerable patients who need them, but this is not always the case. Georgina Rowley explains the advocates' role

The Department of Health has recently issued a letter to NHS trusts expressing its concern that the protection provided to vulnerable patients by independent mental capacity advocates is not being uniformly extended.

When inserting the provisions for such advocates into the Mental Capacity Act, Parliament intended to protect vulnerable patients who have no close family members or friends to ensure they are supported and represented when serious decisions are to be made about their future treatment and care.

The role of independent mental capacity advocates in situations where an unbefriended, incapacitated patient faces serious medical treatment within the NHS and is to be accommodated by the NHS or local authority is twofold.The advocate is required to provide support to such patients to enable them to participate in the decision-making process relating to their treatment by enabling them, so far as it is possible, to express their wishes, feelings, beliefs and values in relation to the proposals. In addition, advocates may explore alternatives to the proposed treatment, accommodation or care.

The second function of the advocate is therefore to challenge the proposed plan of action where necessary, although it is not yet clear whether this role extends to advocates acting as "litigation friends" to patients where proposals in respect of their treatment, accommodation and care are to be brought before the Court of Protection for adjudication.

Helping hand

In relation to future accommodation and care, the Mental Capacity Act draft code of practice suggests that in the following situations the unbefriended patient should have access to an advocate:

  • where it is proposed that such a patient be placed in a hospital or care home for a period likely to exceed 28 days;
  • where it is proposed that such a patient be moved to another hospital or care home for a period likely to exceed 28 days;
  • where during an assessment under the NHS and Community Care Act 1990 of such a patient a local authority proposes to provide community care services in the form of a residential placement for a period likely to exceed eight weeks;
  • where a local authority proposes to move such a patient to another care home for a period likely to exceed eight weeks.

It is a little trickier to interpret the duty under the act to appoint an advocate where "serious medical treatment" is proposed. While the term has now been defined by a statutory instrument, it remains open to interpretation. The instrument defines this as: "Treatment which involves providing, withdrawing or withholding treatment in circumstances where: in a case where a single treatment is proposed, there is a fine balance between its benefits to the patient and the burdens and risks it is likely to entail for him, in a case where there is a choice of treatments, a decision as to which one to use is finely balanced, or what is proposed would be likely to involve serious consequences for the patient."

Duty of care

The act places no greater onus on clinicians than that already placed on them by their regulatory bodies when considering best interests or engaging in the general consent-taking process for competent patients.It simply requires that where a patient is unbefriended and incapacitated, and serious medical treatment is contemplated, an advocate be contacted and appointed to represent the patient and to enable them, so far as it is possible, to express a view about their proposed treatment.

As the concept of serious medical treatment is subjective, it is advisable for clinicians to contact their legal services team to discuss the requirements for advocates when contemplating anything other than routine treatments in respect of unbefriended, incapacitated patients.

The government has allocated£8.2m to primary care trusts to ensure the central tenets of the Mental Capacity Act are adhered to and the wishes of incapacitated patients are given due regard when important care and treatment decisions are being made for them. It has expressed its concern that trusts have not universally embraced the provisions within the act and their duties to consult. The government clearly expects that trusts will now become more vigilant in respect of clinical practice as far as it relates to the care and treatment of the incapacitated.