INDEPENDENT MENTAL CAPACITY ADVOCACY
What is the Wigan Churches Association for Family Welfare’s Independent Mental Capacity Advocate (IMCA) service?
- The Independent Mental Capacity (IMCA) Service is a statutory advocacy service, introduced in the Mental Capacity Act 2005 which was extended 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. Further regulation extended the service to include two further situations i.e. adult protection cases and care reviews. However, since the introduction of the Care Act 2014 this duty now lies with Care Act Advocacy, although an IMCA may still 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?
Under the Mental Capacity Act 2005, decision-makers in Locals Authorities & NHS Trusts (e.g. social workers, Doctors) have a duty to consult with an IMCA for anyone over 16 who:
- Lacks capacity, whether temporary or permanent, with regard to the decision being made (e.g. people with dementia, acquired brain injury, learning disability, mental health needs, unconsciousness due to an accident, effects of anaesthetic or other conditions.
- Have no family or friends appropriate to represent them.
The duty to consult applies when the following decisions are being made:
- Serious Medical Treatment provided by the NHS (but excluding treatment regulated under Part 4 of the Mental Capacity Act 1983)
- It is proposed by an NHS body or LA that a person is moved into long-term care or a permanent change of accommodation e.g. a different care home or Hospital or their own home. This applies if the move is for more than 28 days in hospital or 8 weeks in a care home
- A hospital or Care home are requesting authorisation to deprive a person of their liberty
- A person is deprived of their liberty
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 for Health & Welfare and the attorney continues to manage a person’s affairs
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.
What are the functions of 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
When must an IMCA be instructed in relation to proposed moves?
- 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.
When must an IMCA be instructed in cases of proposed serious medical treatment?
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