What do IMCAs do?
IMCAs are a safeguard for people who lack capacity to make some important decisions.
The IMCA role is to support and represent the person in the decision-making process. Essentially they make sure that the Mental Capacity Act 2005 is being followed.
The Mental Capacity Act 2005 (Independent Mental Capacity Advocates) (General) Regulations 2006set out the IMCA’s role and functions. These are grouped below into four areas.
1. Gathering information
- Meet and interview the person (in private if possible).
- Examine relevant health and social care records.
- Get the views of professionals and paid workers.
- Get the views of anybody else who can give information about the wishes and feelings, beliefs or values of the person.
- Find out other information which may be relevant to the decision.
2. Evaluating information
- Check that the person has been supported to be involved in the decision.
- Try to work out what the person’s wishes and feelings would be if they had capacity to make the decision and what values and beliefs would influence this.
- Make sure that different options have been considered.
- Decide whether to ask for a second medical opinion where it is a serious medical treatment decision.
3. Making representations
IMCAs should raise any issues and concerns with the decision maker. This could be done verbally or in writing. IMCAs are required to produce a report for the person who instructed them. In most cases this should be provided to the decision maker before the decision is made.
People who instruct IMCAs must pay attention to any issues raised by the IMCA in making their decision.
4. Challenging decisions
In many cases IMCAs will be able to resolve any concerns they have with the decision maker before the decision is made. Where this has not been possible IMCAs may formally challenge the decision-making process. They can use local complaint procedures or try to get the matter looked at by the Court of Protection.
The Role Of The IMCA – Independent Mental Capacity Advocate
Who should get an IMCA?
An independent mental capacity advocate (IMCA) must be instructed (1) for people in the following circ*mstances
- The person is aged 16 or over (2)
- A decision needs to be made about either a long-term change in accommodation (3) or serious medical treatment (4),
- The person lacks capacity (5) to make that decision, and
- There is no one independent of services, such as a family member or friend, who is “appropriate to consult” (6).
An IMCA may (7) also be provided to people for other decisions concerning
- Care Reviews (8), or
- Adult Protection (9)
In adult protection cases an IMCA may be instructed even where family members or others are available to be consulted.
Deprivation of Liberty Safeguards
IMCAs must be instructed (10) for people who are being assessed as to whether they are currently being, or should be deprived of their liberty (11), where there is no-one “appropriate to consult” (12).
IMCAs must also be made available to people who are subject to a standard authorisation in the following circ*mstances:
- To fill gaps between appointments of person’s representatives
- If a person has an unpaid representative, when requested by the person, their representative, or if the Supervisory Body believes either could benefit from the support of an IMCA.
References
- IMCAs can only work with an individual once they have been instructed by an appropriate person/ body. For accommodation decisions and care reviews this is likely to be the local authority responsible for the arrangements. For serious medical treatment decisions this will be a medical practitioner who has responsibility for the person’s treatment. For adult protection cases this will be the local authority coordinating the adult protection proceedings. For the IMCA roles in DOLS this will be the Supervisory Body.
- Most parts of the Mental Capacity Act apply to people aged 16 and over. This includes the provisions relating to IMCAs. Some parts of the MCA only apply to people over the age of 18. Examples include the ability to make a Lasting Power of Attorney and to be deprived of their liberty under the MCA.
- This includes accommodation arranged by a local authority or NHS which is likely to be for longer than eight weeks and placement in hospital for a period that is likely to exceed 28 days.
- Serious medical treatment is defined in the MCA as treatment which involves giving new treatment, stopping treatment that has already started or withholding treatment that could be offered in circ*mstances where:
- if a single treatment is proposed there is a fine balance between the likely benefits and the burdens to the patient and the risks involved
- a decision between a choice of treatments is finely balanced, or
- what is proposed is likely to have serious consequences for the patient.
- The person’s capacity to make the specific decision must be assessed. This is the two stage test set out in the MCA.
- They have an impairment or disturbance (for example, a disability, condition or trauma) that affects the way their mind or brain works, and
- The impairment or disturbance means that they are unable to make a specific decision at the time it needs to be made.
- IMCAs are primarily intended to be a safeguard for people who do not have family or friends who can represent them. The MCA identifies this as having no -one other than paid staff with whom “it would be appropriate to consult”. The Code of Practice 10.74 – 10.78 provides more information about how this decision can be made. For example, if someone has limited family contact or if family live some distance away an IMCA can be instructed.
- Local authorities and NHS bodies need to consider in each case whether they will instruct an IMCA for these decisions. This is set out in theMental Capacity Act 2005 (Independent Mental Capacity Advocates) (Expansion of Role) Regulations 2006.
- Local authorities and NHS bodies can instruct an IMCA to support and represent a person who lacks capacity when:
- they have arranged accommodation for that person
- they aim to review the arrangements (as part of a care plan or otherwise), and
- there are no family or friends who it would be appropriate to consult.
- When local authorities are using adult protection procedures they can instruct an IMCA for either
- the person who is alleged to have been abused or neglecteda person who is alleged to have abused another person.
- IMCAs can only work with an individual once they have been instructed by an appropriate person/ body. For accommodation decisions and care reviews this is likely to be the local authority responsible for the arrangements. For serious medical treatment decisions this will be a medical practitioner who has responsibility for the person’s treatment. For adult protection cases this will be the local authority coordinating the adult protection proceedings. For the IMCA roles in DOLS this will be the Supervisory Body.
- The Deprivation of Liberty Safeguards are an amendment to the Mental Capacity Act. They were implemented in April 2009.
- IMCAs are primarily intended to be a safeguard for people who do not have family or friends who can represent them. The MCA identifies this as having no -one other than paid staff with whom “it would be appropriate to consult”. The Code of Practice 10.74 – 10.78 provides more information about how this decision can be made. For example, if someone has limited family contact or if family live some distance away an IMCA can be instructed.
