Learning Disabilities, Autism and Neurodivergence Bill: consultation

Closes 21 Apr 2024

Independent Advocacy

Independent advocacy can play a key role in helping people to secure their rights. An independent advocate will help someone’s voice be heard.  This can help people to make choices about their services and supports. There are different kinds of independent advocacy and this includes collective advocacy when people are supported to come together to talk about their experiences and challenge discrimination.  

What can the Learning Disabilities, Autism and Neurodivergence (LDAN) Bill do?

We are looking at how we can improve rights through the availability of independent advocacy through our policies on:  

  • The creation of a National Care Service (NCS) through the National Care Service (Scotland) Bill (the “NCS Bill”); and,
  • Our response to the Scottish Mental Health Law Review.  

Proposal 1: Strengthen and improve access to existing advocacy provisions

We want to take time to make sure that there is more consistency around our approach to advocacy and we want to involve people with lived experience in helping us to design this. To do this, we will:  

    • work with the Scottish Independent Advocacy Alliance, other organisations and people with lived experience to help identify how best to strengthen rights and access to provision; and,
    • develop a consistent definition of ‘Independent Advocacy’.

This work will take place across the Scottish Government and we will ensure that it includes specific consideration of the rights of neurodivergent people and people with learning disabilities.  How we legislate for advocacy for these groups will depend on the proposed changes in the NCS Bill and to mental health legislation, including whether people with a learning disability or autistic people remain covered by provisions within the 2003 Act.   

This means that we are not currently proposing a broad right in this Bill to independent advocacy for neurodivergent people and people with learning disabilities.  However, we think there are some other things we could explore in the LDAN Bill especially since the right to advocacy under the Mental Health Act only applies the duty to the State Hospital, Health Boards and local authorities (although Health and Social Care Partnerships may in some cases be carrying out this duty) and only applies to a subset of neurodivergent people (as people with a ”mental disorder” under the legislation includes people with learning disabilities and autistic people). 

Therefore, we could: 

  • Provide a power in the Bill that allows us to make regulations around the provision of independent advocacy for neurodivergent people and people with learning disabilities whilst further discussions take place about how to improve this.   
  • Include a provision in the Bill that places a duty on all public bodies to ensure that all neurodivergent people and people with learning disabilities are given information about advocacy and how to appoint their own independent advocate to support them.  

Proposal 2: Improve our Understanding of Independent Advocacy

We will also in the meantime identify and gather evidence on specific circumstances where a right to independent advocacy could make a difference.  

For example, we know that there are some circumstances where additional support could help, as follows:  

  • Evidence research published by the Scottish Commission for Learning Disabilities suggests that where women with a learning disability have been subject to gender-based violence they struggle to access support due to discrimination and stereotyping. There can be significant barriers to accessing support and to effective support when people are able to come forward.  Professionals may not recognise that someone has learning disabilities and if they do they may not have any relevant training in how to support them.  
  • The Equalities and Human Rights Commission, in its Inquiry report into housing for disabled people in 2018, recommended that local authorities should ensure that people with learning disabilities have access to good-quality, accessible advice and advocacy when discussing housing options and to help them navigate complex systems.    

We could consider whether the Bill could provide some specific legal rights to free independent advocacy in these circumstances, as well as others.    

Please tell us what you think.

Related information

Consultation Questions

The questions in this document refer to information contained in our consultation document and various alternative formats which can all be found here

You need only answer questions in the sections most relevant to you.

Which of these proposals do you agree with (if any), please tell us why?
Which of these proposals do you not agree with (if any), please tell us why?
Is there anything else that we should consider in relation to independent advocacy?