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Advocacy and Decision-Making Support Policy

1. Purpose

The purpose of this policy is to ensure that {{org_field_name}} supports the rights, will, preferences, choices and legal safeguards of the people we support through effective advocacy and supported decision-making. We are committed to ensuring that individuals receive the information, communication support, time and assistance they need to express their views, make informed decisions, participate in decisions about their care and support, and have their rights upheld. This policy is informed by the Health and Social Care Standards, the Public Services Reform (Scotland) Act 2010, the Social Care and Social Work Improvement Scotland (Requirements for Care Services) Regulations 2011, the Adults with Incapacity (Scotland) Act 2000, the Mental Health (Care and Treatment) (Scotland) Act 2003, the Adult Support and Protection (Scotland) Act 2007, the Equality Act 2010, human rights legislation, UK GDPR and the Data Protection Act 2018.

We recognise that some individuals may require additional support to make or communicate their decisions, and we are committed to:

• Promoting independence, dignity, and respect in all decision-making processes.
• Providing clear information and guidance to help individuals make informed choices.
• Supporting access to independent advocacy services where required.
• Ensuring that individuals’ legal and human rights are protected at all times.
• Presuming that adults have capacity to make their own decisions unless there is clear evidence to the contrary.
• Recognising that capacity is decision-specific, may fluctuate, and must not be judged solely by diagnosis, disability, age, appearance, communication style or an apparently unwise decision.
• Ensuring that any intervention in the affairs of an adult with impaired capacity follows the Scottish Adults with Incapacity principles of benefit, minimum intervention, taking account of the adult’s present and past wishes and feelings, consulting relevant others, and encouraging the adult to use and develop their skills as far as possible.
• Ensuring that the person’s rights, will and preferences remain central to decision-making, including where the person requires significant support to make or communicate a decision.
• Training staff to provide person-centred decision-making support.
• Working in collaboration with families, advocates, and multidisciplinary professionals to support individuals’ decision-making capacity.

2. Scope

This policy applies to:

• People we support, including those with cognitive impairments, disabilities, or other conditions affecting decision-making capacity.
• All employees, including care workers, supervisors, and management involved in care provision.
• Families, carers, named persons, independent advocates, attorneys, guardians, intervention order holders, appointees and other representatives, where they are involved with the person’s consent, where there is legal authority, or where involvement is otherwise lawful and appropriate.
• This policy applies to day-to-day decisions, care and support planning decisions, risk-related decisions, decisions about sharing information, and situations where there are concerns about capacity, undue influence, coercion, harm, neglect or exploitation.
• External professionals, including social workers, legal professionals, and healthcare providers.

3. Legal and Regulatory Framework

This policy is aligned with the following Scottish legislation, standards, codes and guidance:

• Public Services Reform (Scotland) Act 2010 – establishes the regulatory framework for care services regulated by the Care Inspectorate.
• Social Care and Social Work Improvement Scotland (Requirements for Care Services) Regulations 2011, including Regulation 4 on welfare of service users and Regulation 5 on personal plans. Each person using the service must have a written personal plan prepared in consultation with them and, where appropriate, their representative. The personal plan must be kept under review and updated when the person’s needs, wishes or circumstances change.
• Health and Social Care Standards: My support, my life – including the standards that people are fully involved in decisions about their care and support, that their human rights are central to the organisation, that their views and choices are respected including where they have reduced capacity, and that their personal plan reflects their needs, wishes and choices.
• Adults with Incapacity (Scotland) Act 2000 – provides the legal framework for interventions in the affairs of adults aged 16 and over who are unable to make, communicate, understand or retain decisions because of mental disorder or inability to communicate. Any intervention must follow the Act’s principles: benefit, minimum intervention, taking account of the adult’s present and past wishes and feelings, consultation with relevant others, and encouraging the adult to exercise and develop skills as far as possible.
• Adults with Incapacity Codes of Practice and guidance, including relevant guidance for welfare attorneys, guardians, intervention order holders, medical practitioners and local authorities.
• Mental Health (Care and Treatment) (Scotland) Act 2003 – including the right of every person with a mental disorder to access independent advocacy.
• Mental Welfare Commission for Scotland Supported Decision-Making Good Practice Guide 2024 – supporting the rights, will and preferences of people who may have difficulty making or communicating decisions.
• Adult Support and Protection (Scotland) Act 2007 and the Adult Support and Protection Code of Practice 2022 – supporting and protecting adults at risk of harm while having regard to the adult’s wishes, feelings, participation, background, characteristics and the least restrictive approach.
• Human Rights Act 1998 and the European Convention on Human Rights – including respect for private and family life, liberty, freedom of expression, freedom of thought, conscience and religion, and protection from degrading treatment.
• Equality Act 2010 – requiring non-discriminatory practice and reasonable adjustments for disabled people, including communication support and accessible information.
• Carers (Scotland) Act 2016 – recognising the role and rights of unpaid carers, including signposting carers to support and involving carers appropriately, with the person’s consent or other lawful basis.
• UK GDPR and Data Protection Act 2018 – ensuring that information is processed lawfully, fairly and transparently, and that information is shared only where there is consent, legal authority, safeguarding necessity, or another lawful basis.
• SSSC Codes of Practice for Social Service Workers and Employers 2024 – requiring workers to protect and promote rights, respect views, wishes and choices, promote informed choice, communicate using preferred methods and language, maintain accurate records, and work lawfully, safely and effectively. Employers must support workers to meet the Codes, provide learning and development, and promote a culture of rights, safety, inclusion and accountability.

4. Advocacy Support

Advocacy supports people to understand information, express their views, explore options, uphold their rights and participate as fully as possible in decisions affecting their lives. Independent advocacy is separate from the service, local authority, NHS, family members and other professionals. It is particularly important where a person has difficulty being heard, where there is disagreement, where there are concerns about capacity, where there may be undue influence or coercion, or where a person is subject to, or may be subject to, mental health, adult support and protection, guardianship or other legal processes.

{{org_field_name}} is committed to ensuring individuals have access to appropriate advocacy services, including:

• Self-Advocacy: Supporting individuals to speak up for themselves where possible.
• Independent Advocacy Services: Connecting individuals with external advocacy organisations when required.
• Family and Peer Advocacy: Supporting families and trusted individuals to advocate on behalf of their loved ones.
• Professional Advocacy: Engaging social workers or legal representatives for complex decision-making needs.

Statutory right to independent advocacy

Where a person has a mental disorder, including mental illness, learning disability, personality disorder, dementia or related conditions, staff must ensure that the person is informed of their right of access to independent advocacy under the Mental Health (Care and Treatment) (Scotland) Act 2003. Staff must support the person to access independent advocacy where requested or where this is required to help the person understand, express or uphold their rights and choices. This applies whether or not the person is subject to compulsory measures.

How We Support Advocacy

• Ensuring that individuals are aware of their right to advocacy.
• Providing information on local advocacy organisations and how to access them.
• Supporting non-verbal individuals with assistive communication methods.
• Facilitating meetings between individuals and advocates to ensure their voice is heard.
• Ensuring that advocates have access to relevant care and support plans (with consent) to effectively support decision-making.
• Recording the person’s advocacy needs, preferred advocate or advocacy organisation, and any support required to access advocacy in the person’s personal plan.
• Providing information about advocacy in a format the person can understand, including easy read, large print, translated information, pictorial information or verbal explanation.
• Offering advocacy at key points, including assessment, personal planning, review meetings, complaints, adult support and protection concerns, capacity concerns, hospital admission or discharge, significant changes in care, and decisions involving risk or restriction.
• Checking whether the person wishes an advocate to attend reviews, meetings or discussions about care and support.
• Ensuring that staff do not treat family members or service staff as independent advocates, although family members and trusted people may provide important informal support where the person wants this and where it is appropriate.
• Recording when advocacy was offered, whether it was accepted or declined, and any action taken to arrange advocacy.

5. Decision-Making Support

5.1 Person-Centred and Supported Decision-Making

{{org_field_name}} will support people to make their own decisions wherever possible. Staff must begin from the presumption that an adult has capacity to make a decision unless there is clear evidence to the contrary. A person must not be treated as unable to make a decision simply because they are older, disabled, have a diagnosis, communicate differently, make a decision that others consider unwise, or need time and support to understand information.

Decision-making support will be tailored to the person and the decision. Staff will:

• provide information in a way the person can understand;
• give the person enough time to consider options;
• explain the likely benefits, risks and consequences of options;
• use the person’s preferred communication method and language;
• involve interpreters, communication aids, Talking Mats, visual prompts, technology, speech and language therapy advice or other specialist support where required;
• support the person to involve family, carers, friends, advocates or representatives where the person wishes this or where there is legal authority;
• check whether the person is being pressured, coerced or unduly influenced;
• respect the person’s right to make choices and take reasonable risks; and
• record the support provided and the person’s expressed views, wishes and decision in the personal plan or relevant care record.

Staff must act as supporters and facilitators of decision-making. Staff must not make decisions for a person unless there is legal authority, an emergency necessity, safeguarding requirement, or another lawful basis for doing so.

5.2 Supporting Individuals Where Capacity May Be Impaired

Some people may have temporary, fluctuating or longer-term difficulties making or communicating particular decisions. Capacity must be considered in relation to the specific decision at the specific time it needs to be made. Capacity must not be assumed to be absent because of a diagnosis, disability, communication difficulty, age, distress, mental health condition, dementia, learning disability, acquired brain injury, substance use, or because the person makes a decision that others disagree with.

Where staff are concerned that a person may be unable to make or communicate a specific decision, staff must first consider what support would help the person make the decision themselves. This may include providing information differently, using communication aids, involving a trusted person or independent advocate, choosing a better time of day, allowing more time, reducing distress or distraction, or seeking specialist communication advice.

Where, after appropriate support, there remains concern that the person may lack capacity for a specific decision, staff must escalate this to the manager and, where appropriate, seek advice from relevant professionals such as the GP, social worker, mental health officer, community nurse, speech and language therapist, psychologist, psychiatrist, or local authority adult services. Staff must follow the relevant legal framework before any decision is made on behalf of the person.

Any intervention under the Adults with Incapacity (Scotland) Act 2000 must comply with the following principles:

• the intervention must benefit the adult;
• the benefit cannot reasonably be achieved without the intervention;
• the intervention must be the least restrictive option in relation to the adult’s freedom;
• the adult’s present and past wishes and feelings must be taken into account as far as they can be ascertained;
• relevant others must be consulted, where reasonable and practicable, including the nearest relative, primary carer, named person, attorney, guardian or others with an interest in the adult’s welfare; and
• the adult must be encouraged to exercise and develop skills concerning their welfare, property and financial affairs as far as possible.

Any decision made with or for the person must be clearly recorded, including the decision required, the information provided, the communication support used, the person’s views and wishes, who was consulted, the legal authority relied upon, the outcome, and any review date.

5.3 Legal Representatives, Attorneys, Guardians and Intervention Orders

Where a person has a welfare attorney, financial attorney, guardian, intervention order holder, Department for Work and Pensions appointee, named person or other legal representative, {{org_field_name}} will confirm and record the person’s role and authority before relying on them to make or support decisions.

Staff must ask to see relevant documentation, such as a registered Power of Attorney document, guardianship order, intervention order, appointeeship confirmation or other legal authority. A copy, or a record of having seen the document, must be retained in line with the organisation’s records management and data protection procedures.

Staff must check the scope of the legal powers. A person with financial powers may not have welfare decision-making powers. A welfare attorney or guardian may only make decisions within the powers granted and only when the legal test for using those powers is met.

Even where a legal proxy is involved, the supported person must still be involved as far as possible. Their present and past wishes, feelings, values and preferences must be sought, recorded and taken into account.

5.4 Advance Statements, Anticipatory Planning and Future Wishes

Staff will ask, where relevant and appropriate, whether the person has an advance statement, anticipatory care plan, future care wishes, Power of Attorney, guardianship order, intervention order or other document that sets out their wishes.

Where a person has an advance statement under the Mental Health (Care and Treatment) (Scotland) Act 2003, staff will record this and ensure relevant professionals are aware, with the person’s consent or other lawful basis.

Where a person wishes to plan for future decision-making, staff will provide information and signposting to appropriate sources of advice, such as independent advocacy, the local authority, health professionals, solicitor, Office of the Public Guardian or other relevant agencies. Staff must not provide legal advice unless qualified to do so.

5.5 Risk, Restrictions and Rights

{{org_field_name}} recognises that people have the right to make choices and take reasonable risks. Staff will support people to understand and manage risks rather than removing choice unnecessarily. Any restriction on a person’s independence, choice, movement, privacy, contact with others or access to their own property must be lawful, necessary, proportionate, time-limited, reviewed and the least restrictive option available.

Where a proposed decision or care arrangement may restrict the person’s rights, staff must escalate this to the manager before the restriction is used, unless immediate action is required to prevent serious harm. The manager must ensure that the correct legal basis is identified and that appropriate professional advice is sought where required.

Restrictions must be discussed with the person as far as possible, and with any legally authorised representative or relevant professional where appropriate. The reason for the restriction, alternatives considered, legal basis, review arrangements and the person’s views must be recorded in the personal plan and risk assessment.

6. Staff Training and Responsibilities

To ensure advocacy and supported decision-making are delivered effectively, all staff must receive induction, supervision and refresher learning appropriate to their role. This will include:

• the Health and Social Care Standards;
• SSSC Codes of Practice 2024;
• supported decision-making and human rights-based practice;
• Adults with Incapacity (Scotland) Act 2000 principles;
• Mental Health (Care and Treatment) (Scotland) Act 2003 advocacy rights;
• Adult Support and Protection (Scotland) Act 2007 duties and local procedures;
• equality, diversity, reasonable adjustments and accessible communication;
• recognising coercion, undue influence, conflict of interest, financial harm and discriminatory practice;
• confidentiality, consent, UK GDPR and lawful information sharing;
• recording advocacy, capacity concerns, legal authority and decision-making support in the personal plan; and
• escalation routes when staff are unsure whether a person has capacity or whether a decision is lawful.

Staff must not assess legal capacity or make substitute decisions unless this is within their role, competence and lawful authority. Staff must seek advice from their manager and relevant professionals where there are concerns about capacity, legal authority, restrictions, safeguarding or conflict between the person’s wishes and the views of others.

7. Safeguarding and Protection in Decision-Making

{{org_field_name}} will ensure that decision-making support is delivered in a way that protects people from harm while respecting their rights, will, preferences, autonomy and right to participate. Where there are concerns that a person may be an adult at risk of harm, staff must follow the Adult Support and Protection (Scotland) Act 2007, the Adult Support and Protection Code of Practice, local adult protection procedures and the organisation’s Adult Support and Protection Policy.

Safeguarding measures include:

• Recognising signs of undue influence, where a person may be pressured into making decisions against their will.
• Ensuring individuals are not coerced by family, carers, or professionals.
• Following the Adult Support and Protection (Scotland) Act 2007 and local adult protection procedures where an adult may be unable to safeguard their own wellbeing, property, rights or other interests, is at risk of harm, and because of disability, mental disorder, illness or physical or mental infirmity is more vulnerable to being harmed.
• Reporting concerns to local safeguarding authorities and following internal safeguarding procedures.
• Encouraging multi-agency collaboration to protect vulnerable individuals.
• Considering whether the person needs independent advocacy to help them understand adult protection processes, express their views and participate as fully as possible.
• Recording the person’s wishes and feelings, including where these differ from the views of family, carers, professionals or legal representatives.
• Ensuring that any adult protection action is proportionate, lawful and the least restrictive option consistent with the person’s safety and rights.
• Seeking management advice immediately where there are concerns that a representative, attorney, guardian, family member, carer, staff member or other person may be exerting undue influence, coercion or control.

7.1 Undue Influence and Conflicts of Interest

Staff must be alert to situations where a person’s decision may not be freely made. This may include pressure, coercion, intimidation, fear, dependency, financial control, threats, isolation, family conflict, professional influence, or a representative acting outside their authority.

Where undue influence or conflict of interest is suspected, staff must:

• speak with the person privately where safe and appropriate;
• offer independent advocacy;
• record the concern factually;
• inform the manager;
• consider adult support and protection procedures;
• seek advice from relevant professionals; and
• avoid relying on the conflicted person as the sole source of the person’s wishes or consent.

The person’s safety, rights, will and preferences must remain central to any action taken.

7.2 Information Sharing, Consent and Confidentiality

Information about a person’s care, support, advocacy, capacity, legal representatives or safeguarding concerns must be handled confidentially and in line with UK GDPR, the Data Protection Act 2018 and the organisation’s confidentiality and records policies.

Staff must seek the person’s consent before sharing information with family members, carers, advocates or representatives unless there is legal authority, safeguarding necessity, vital interests, public task, contractual requirement or another lawful basis for sharing.

Where an advocate or representative requires access to relevant information to support the person, staff must check the person’s consent or the representative’s legal authority before sharing information. Only necessary and proportionate information should be shared.

Where information is shared without consent because of risk of harm or legal requirement, the reason must be recorded and the person should be informed unless doing so would increase risk or prejudice an investigation.

8. Monitoring and Continuous Improvement

To ensure best practice in advocacy and supported decision-making, {{org_field_name}} will:

• review each person’s advocacy, communication and decision-making support needs as part of assessment, personal planning and review;
• ensure that advocacy needs, legal representatives, communication support, capacity concerns and supported decision-making arrangements are recorded in the person’s personal plan;
• review personal plans at least every six months and sooner where the person’s needs, wishes, risks, legal arrangements or circumstances change;
• audit records to check that people are being offered advocacy, involved in decisions, supported to communicate, and protected from undue influence;
• seek feedback from people we support, carers, advocates, families and professionals about how well the service supports choice, rights and involvement;
• use supervision, team meetings and staff observations to review supported decision-making practice;
• ensure learning from complaints, incidents, adult protection concerns, reviews and inspections is used to improve practice;
• monitor staff training and competence in advocacy, decision-making support, adult protection, equality and human rights;
• use the Care Inspectorate quality framework for support services, including care at home and supported living, to support self-evaluation and improvement; and
• review this policy annually or earlier following changes in legislation, national guidance, Care Inspectorate expectations, SSSC requirements or organisational learning.

9. Related Policies

This policy should be read alongside:

• Adult Support and Protection / Safeguarding Policy
• Mental Capacity, Adults with Incapacity and Consent Policy
• Personal Planning and Review Policy
• Communication and Accessible Information Policy
• Equality, Diversity, Inclusion and Human Rights Policy
• Confidentiality and Data Protection Policy
• Complaints and Feedback Policy
• Medication Policy, including covert medication where applicable
• Risk Assessment and Positive Risk-Taking Policy
• Records Management Policy
• Whistleblowing Policy
• Staff Supervision, Training and Competency Policy
• Financial Safeguarding / Supporting People with Money Policy
• Care at Home Service User Guide / Aims and Objectives document

10. Recording Requirements

Staff must keep clear, accurate, respectful and up-to-date records of advocacy and decision-making support. Records must include, where relevant:

• the person’s preferred name, communication method and accessible information needs;
• the decision being considered;
• the information given to the person and how it was explained;
• the support provided to help the person understand, retain, use or weigh information and communicate their decision;
• the person’s expressed views, wishes, feelings, values and preferences;
• whether advocacy was offered, accepted or declined;
• any advocate, family member, carer, attorney, guardian, named person or representative involved;
• evidence of legal authority, where a representative is acting formally;
• any concern about capacity, coercion, undue influence, conflict of interest or harm;
• advice sought from managers or professionals;
• the decision reached and who made it;
• the legal basis for any decision made on behalf of the person;
• any restriction agreed or imposed, the reason for it, alternatives considered and review date; and
• when the decision or support arrangement will be reviewed.

Records must be written in a way that the person would recognise as respectful and accurate. Where possible, the person should be involved in recording their own views and outcomes. Advocacy and decision-making support arrangements must be reflected in the personal plan and reviewed as part of the normal personal planning process.

11. Policy Review

This policy will be reviewed at least annually, or earlier where there are changes to Scottish legislation, Care Inspectorate guidance, SSSC Codes of Practice, Mental Welfare Commission guidance, Adult Support and Protection guidance, Health and Social Care Standards, data protection requirements, or where learning from complaints, incidents, audits, inspections or adult protection activity indicates that the policy requires amendment.

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