Campaigners are frustrated by the delay to independent advocacy for mental health patients. Stuart Shepherd reports

While most changes brought in under the Mental Health Act 2007 start taking effect this November, a delay to one is causing frustration.

The section ensuring the rights of detained patients to independent mental health advocacy services will not be introduced until April 2009.

The delay is proving a cause of some concern, particularly for organisations that successfully lobbied for the right to be reinstated, having seen it withdrawn after it was introduced in the original bill in 2004.

"The government argued in Parliament that independent mental health advocacy was one of the key safeguards not only for ensuring people's right to appeal against detention, but also against the over-representation of patients from black and minority groups detained in hospital and on supervised community treatment orders," says Rethink head of campaigns Jane Harris.

"Within our London services we have already found that African-Caribbean men use advocacy proportionally more than anyone else," she says. "I think there was a strong obligation on government to make sure that independent advocacy was operating at the same time that these extended powers were put in place."

But in June the gap indicated between the implementation of community treatment orders and independent advocacy services was five months.

"The new orders will take time to bed in and there may well be some initial teething problems," says MIND policy officer Anna Bird. "It is really important then that patients can exercise their right to challenge what they might feel are inappropriate decisions in relation to their care. But at a critical time both for them and the new act there won't necessarily be any advocates around to offer any support."

Consultation on the draft revised code of practice and secondary legislation closed earlier this year with comment invited on the introduction of independent advocacy and the accompanying regulations, covering such areas as the commissioning and appointment of advocacy services and practitioners.

Published in May, the resulting report indicates that guidance on the implementation of services will "be issued in due course", with advocacy regulations and guidance to be drawn up later this year.

Left until last

"Some of the work done last year by the expert group on good practice is now available at," says Ms Bird. "But it feels like we haven't got to grips with some of the trickier issues: how the advocacy works with the mental health tribunal that listens to patients' appeals against detention orders for instance, or with people on a treatment order. It has been left until last."

The provision of advocacy services in mental health to date has been patchy and its contribution not always clearly understood. There are pockets of London for example with relatively high levels of provision - where across a pair of boroughs there might be two community advocates and a couple of inpatient advocates - one working with the patients' council - and a team leader. Here the process is empowering and helps build partnerships between services and users.

"In other places, however, it is either poorly funded and the advocates are overworked or there is no funding at all," says Bambos Voutourides, London advocacy services manager for MIND.

"The legislation has been introduced in response to this," he says. "But we will need consistency among commissioners to be sure that we don't get money just being allocated to advocacy as legally required under the act while other advocacy services for voluntary patients are pushed to the sidelines."

Letter of the law

It is almost unthinkable, but under such potentially disadvantageous circumstances, what is to stop somebody in acute mental distress and unable to get independent advice from seeking to aggravate their own symptoms to the extent that they are detained, and then - and only then - assured of advocacy?

The kind of commissioning guidance that could help prevent such a scenario has been available in draft form for some months.

Durham University research fellow Di Barnes, who as a former lead on the good advocacy practice project delivered the draft commissioning guidance, says:

"There are options for commissioners to think about the length and breadth of what advocacy they want provided. It would be very difficult for inpatient services if independent advocacy couldn't support voluntary patients or do proactive work with patients too ill to ask for help.

"A service that only delivers the legal narrowness of the act would be a great loss to advocacy. If the shift was too extreme you could end up with a service worse than before."

There are, Ms Barnes points out, some positive stories to tell. Several areas where existing advocacy contracts are due for renewal before independent advocacy implementation have run pilot schemes to assess local need.

A good practice guidance document is anticipated for this September and the development of a national qualification is also well advanced.

But any announcement as to whether health or local authorities will lead on commissioning advocacy, or what pathway the money will follow under joint commissioning, is yet to be made. The regulatory impact assessment estimated that, based on four hours of advocacy for each detained patient, it would cost a little over£8m. There is already a worry that this is neither enough time or money.

For many, the real preoccupation is the government's failure so far to indicate the budget it plans to make available for the new advocacy services.

Where there's a will...

While service providers, commissioners and service users wait to see how independent mental health advocacy will eventually work and what money will be given to it, the picture in Wales is clearer.

"The minister for health and social services, Edwina Hart, has made a public commitment that advocacy in Wales will not be delayed and£600,000 has been set aside for implementation," says Ruth Coombs, MIND Cymru manager for influence and change.

"If we have any concerns, they are around making sure there is an infrastructure in place and enough people on the ground to deliver it, but importantly that political will for independent mental health advocacy to start in October is there."