Independent Mental Capacity Advocacy

What is the Wigan Churches Association for Family Welfare’s Independent Mental Capacity Advocate (IMCA) service?

• The IMCA service is a new statutory advocacy service, introduced in the Mental Capacity Act 2005 and developed further by regulations.

• The purpose of the IMCA service is to help particularly vulnerable people who lack the capacity to make important decisions about serious medical treatment and changes of accommodation.  It is available to those people who have no family or friends whom it would be appropriate to consult about those decisions.  The service was extended by the regulation to include two further situations, adult protection cases and care reviews – where an IMCA may be instructed.

What is an Independent Mental Capacity Advocate (IMCA)?

• An independent Mental Capacity Advocate (IMCA) is someone instructed to support and represent a person who lacks capacity to make certain serious decisions.  They need to be approved by the LA to undertake their role, which is to gather information, provide support to the person concerned and make representations about that person’s wishes, feelings, beliefs and values, at the same time as bringing to the attention of the decision-maker all factors that are relevant to the decision.  They will also be able to challenge the decision-maker.

In what situations should an IMCA be instructed?

• In cases where a person who lacks capacity does not have friends or relatives to consult, decision-makers in local authorities and NHS Trusts (for example social workers and doctors) will have a duty to consult an IMCA where:

a) The decision is about serious medical treatment provided by the NHS (but excludes treatment regulated under Part 4 of the Mental Health Act 1983).
b) It is proposed by an NHS body or a LA that the person be moved into long-term care of more than 28 days in a hospital or 8 weeks in a care home (where that accommodation or move is not a requirement of the Mental Health Act 1983).
c) A long-term move (8 weeks or more) to different accommodation is being proposed by an NHS body or LA for example, to a different hospital or care home (where that accommodation or move is not a requirement of the Mental Health Act 1983).

• In addition, regulations on the expansion of the IMCA service provide that local authorities and NHS bodies may involve an IMCA in a care review if a change of accommodation that was arranged by the LA or NHS is being considered (and the person has already been in that accommodation for 12 weeks or longer).

• Regulations also provide that local authorities and NHS bodies may involve an IMCA in adult protection cases.  In these cases alone, the requirement, discussed below, that the person has no one whom it would be appropriate to consult does not apply.

• In both of the additional cases, the LA or NHS body must be satisfied that it would be of particular benefit to the person to be represented by an IMCA.

• The IMCA’s report must be taken into account in the decision.

• The lack of capacity may be temporary or permanent and will include people with dementia, with brain injury, with learning disability and mental health needs, and those who are unconscious whether due to an accident, being under anaesthetic or as a result of other conditions.

Who is unable to get an Independent Mental Capacity Advocate?

The Act says that IMCAs cannot be instructed if:

• A person who now lacks capacity previously named a person that should be consulted about decisions that affect them, and that person is available and willing to help
• The person who lacks capacity has appointed an Enduring Power of Attorney (EPA) and the attorney continues to manage the person’s affairs
• The Court of Protection has appointed a deputy who continues to act on a person’s behalf
• The person who lacks capacity has appointed a Lasting Power of Attorney and the attorney continues to manage a person’s affairs

The latter two provisions, concerning deputies and LPAs, will only be relevant from 1 October as the provisions relating to them will not come into effect until that point.

The Government has indicated that it is the intention, where a person has no family friends, personal welfare deputy or personal welfare attorney (appointed under an LPA) to represent them that they should have access to an IMCA.

The Government is seeking to amend the Act, at the earliest opportunity, to ensure that, in such circumstances, an IMCA should always be appointed to represent the person’s views when they lack the capacity to make decisions relating to serious medical treatment or long-term accommodation moves.

What are the functions of an IMCA?

An IMCA:
• Must confirm that the person instructing them has the authority to do so
• Should interview or meet in private the person who lacks capacity, if possible
• Must act in accordance with the principles of the Act, particularly the duty to act in the person’s best interests, and take account of relevant guidance in the Code
• May examine any relevant records that the Act gives them access to
• Should obtain the views of professional and paid workers providing care or treatment for the person who lacks capacity
• Should obtain the views of anybody else who can give information about the wishes and feelings, beliefs or values of the person who lacks capacity
• Should obtain any other information they think will be necessary
• Must find out what support a person who lacks capacity has had to help them make the specific decision
• Must try to find out what the person’s wishes and feelings, beliefs and values would be likely to be if the person had capacity
• Should find out what alternative options there are
• Should consider whether getting another medical opinion would help the person who lacks capacity, and
• Must write a report on their findings for the local authority or NHS

An IMCA has the same rights to challenge a decision as any other person caring for the person or interested in his welfare.  The right of challenge applies both to decisions about lack of capacity and a person’s best interests.

When must an IMCA be instructed in cases of proposed serious medical treatment?

From 1 April 2007, if a doctor or healthcare professional is proposing serious medical treatment for somebody who lacks the capacity to consent and there is nobody other than paid staff whom it is appropriate to consult, the NHS body responsible for that patient’s treatment must instruct an IMCA.

Serious medical treatment is defined as treatment that involves giving new treatment, stopping treatment that has already started, or withholding treatment that could be offered in circumstances where:

• If a single treatment is proposed and there is a fine balance between the likely benefits and the burdens to the patient and the risks involved or
• A decision between a choice of treatments is finely balanced, or
• What is proposed is likely to have serious consequences for the patient

 

When must an IMCA be instructed in relation to proposed moves?

From 1 April 2007, if

• An NHS body is proposing to arrange accommodation in a hospital or care home (as in 2.4 b) and c) above) of somebody who lacks the capacity to consent or
• A LA is proposing to arrange residential accommodation for somebody who lacks the capacity to consent
• And there is nobody other than paid staff whom it is appropriate to consult, the NHS body or LA must instruct an IMCA

If the arrangements need to be made as a matter of urgency and there is no time to instruct an IMCA, then one need not be instructed.  However, in accommodation cases if the person is then expected to be more than 28 days in hospital or 8 weeks in a care home or its equivalent then an IMCA must be instructed as soon as possible after the move.

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