Discussion Articles
ADVOCACY AND DUTY OF CARE
A BASIS FOR DISCUSSION
Dr John Tufail
Recently I have been discussing with Advocacy Providers the legal concept of ‘Duty of Care’ as it relates to advocacy as a concept. It seems to be an issue that ‘we’ have almost deliberately ignored because it goes to the heart of the definition, powers and responsibilities of ‘advocacy’.
I think the most honest and intriguing response I have received regarding this issue, certainly in terms of establishing ‘Duty of Care’ is this from the Director of one of the UK’s most successful advocacy projects: ‘Advocates support clients in challenging this (institutional) power. In challenging power advocates do not provide care. They do not aim to act in a client’s best interests.
For example, an advocate may support an elderly person who wishes to stay out of residential care when all professional opinion states that that is in their best interest. An advocate will also support a client in wanting to leave a psychiatric hospital even when all professional opinions state that this may lead to the person to commit acts of serious harm to themselves or others.’
There is an obvious and serious problem here with the term ‘care’. Advocacy has established itself as a beneficial movement. Advocacy lies at the heart of such concepts as ‘needs led assessment’ and ‘People centred’ approaches to care provision. One can see immediately why the person who made the above statement would want the term ‘care’ taken out of the advocacy loop. When we look at the term ‘care’ we think of it in terms of statutory and/or institutional intervention – at least this is the way many advocacy providers see the term.
But ‘care’ also has a legal definition. Can an advocacy provider say that ‘They do not aim to act in a client’s best interest’? Because if they say that, what about the views of the client? I know of no body of research that would contradict my assertion that the reason a person reaches out for an advocate is precisely because they want someone who will act in what they see as their best interests. That implies and involves ‘care’. Immediately a person or organisations represents itself as an advocacy provider that person or organisation automatically puts itself in a position of power vis-à-vis the supplicant. It really does not matter whether the service provided is free (voluntary) or paid (professional). The point is that by the very fact that they have described themelves as providers of advocacy, the service user has certain expectations. Yet the whole advocacy movement is shunning this issue.
Simply the legal duty of care involves two issues. First is the ‘ordinary’ duty of care of one person for another. In tort this is simple negligence. If I invite a neighbour’s child into my home knowing that my electrical system is dangerous and that child is injured as a result of this, then I am liable. Putting this in terms of advocacy provision as a provider, if I say that I am competent to provide a service on behalf of someone and then that person is injured (physically, financially or otherwise) because I misrepresented my skills the issue is simple. I am liable.
The tort of negligence imposes liability on some of those who cause damage through their careless behaviour. This ‘some’ would most certainly include those who individually misrepresent their level of competence, experience or training.
But the advocacy movement seems to be evading this simple tort by saying that nobody knows what is ‘reasonable’ training, skills or experience because ‘we’ don’t even have agreed definitions of what advocacy is. Never mind, the law will still look at what a reasonable person would expect from a person purporting to be an advocate.
This is duty of care at its most basic. It most certainly includes anyone who intervenes in another persons life, for whatever good intention, as an advocate. The key issue here, I think, is intervention. Advocacy, by its very nature, is interventionist. I think all people in the advocacy movement need to think about this. Advocacy, on the whole, has established itself as a positive force, but it has evolved responsibilities that it does not seem able to accept.
But this is duty of care at its simplest level. The care one neighbour has for another. Most advocates, however, are provided by an organisation. It doesn’t matter whether that organisation is a local authority, an NHS Trust, a funded voluntary organisations or your neighbourhood Church, Temple, Mosque or community centre. In this case where does the duty of care lie? Does it lie primarily with the individual ‘advocate’ or with the organisation? The law here is quite specific that it is the responsibility of the organisation. This is vicarious liability. The most appropriate example of this is probably what has become known as the ‘Phelps Case’. In this case the House of Lords upheld a High Court judgment that a LEA or school (and this will clearly be applicable to any advocacy provider) as liable for the negligent actions of their staff.
I will summarise this paper by leaving the reader with this quote from the House of Lords decision on the Phelps case and ask where this leaves the advocacy movement and its duty to those it purports to support: ‘In establishing negligence, it must be shown that the professional concerned went beyond the alternatives available to a competent person exercising that skill. A person will not be guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body..’
What is the practice and who is the responsible body?