Independent Mental Capacity Advocacy (IMCA)

What is Independent Mental
Capacity Advocacy?

IMCAs are a legal safeguard for people who have been deemed to lack the capacity to make specific important decisions about their care and treatment. IMCAs are instructed to represent people where there is no one independent of services, such as a family member or friend, who is able to represent the person. The IMCA role is to support and represent the person in the decision-making process and make sure that the Mental Capacity Act 2005 is being followed.

 

Who is it for?

Independent Mental Capacity Advocacy is available if:

  • The person has been deemed to lack capacity to be able to make a decision about their care and treatment.

and

  • The person is unbefriended. This is when there are no unpaid carers, family or friends to provide support or say what they believe is in the person’s best interests.

A person may lack capacity due to a condition which cause an impairment or disturbance of the mind, such as dementia or a brain injury. However, the presence of a condition does not automatically meant that person lacks capacity. If it is thought that the person may regain capacity, the decision should be postponed until this time unless the decision is an urgent one.

What can an advocate do?

The advocate can:

  • 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.
  • 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.
  • Raise any issues and concerns with the decision maker.
  • 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 advocate cannot:

  • Make decisions on behalf of the person.
  • Provide a mentoring or befriending service.

Types of decisions:

Serious Medical Treatment

Serious medical treatment is treatment which involves providing, withdrawing or withholding treatment in circumstances where:

  • in a case where a single treatment is being proposed, there is a fine balance between its benefits to the patient and the burdens and risks it is likely to entail for him,
  • in a case where there is a choice of treatments, a decision as to which one to use is finely balanced, or
    what is proposed would be likely to involve serious consequences for the patient.

The Code of Practice defines 'serious consequences' as those which could have a serious impact on the patient, either from the effects of the treatment itself or its wider implications. This may include treatments which:

  • cause serious and prolonged pain, distress or side effects
  • have potentially major consequences for the patient (for example, stopping life-sustaining treatment or having major surgery such as heart surgery),
  • have a serious impact on the patient's future life choices (for example, interventions for ovarian cancer)
Accommodation decisions

Accommodation decision include:

  • admissions to any hospital that are likely to last for over 28 days
  • moves to care homes that are likely to be longer than eight weeks
  • moves to any other accommodation, funded by the local authority or NHS body, that are likely to be longer than eight weeks.

IMCAs are not required for short-term or urgent move, e.g planned respite stay lasting two weeks.

IMCAs should be instructed where a person may remain living in accommodation which is deregistering as a care home or if the place where the person is living is registering as a care home.

Care Reviews

Care reviews include:

  • care reviews for people in accommodation arranged by the local authority
  • reviews undertaken by NHS bodies for those people who are receiving Continuing Healthcare
  • care plan reviews undertaken by NHS trusts for inpatients.
Safeguarding

In adult safeguarding processes access to an IMCA is not restricted to people who have no one else to support or represent them. People who have friends and family, but lack capacity, can still have IMCA support.

The regulations specify that local authorities and the NHS have powers to instruct an IMCA

  • Where safeguarding measures are being put in place in relation to the protection of vulnerable adults from abuse; and
  • Where the person lacks capacity.

The regulations equally apply to a person who:

  • may have been abused
  • has been neglected
  • is alleged to be the abuser

Where the qualifying criteria are met, it would be unlawful for the local authority or the NHS not to consider the exercise of their power to instruct an IMCA.

The IMCA has the statutory right to:

  • Meet with the person in private if possible
  • Talk to professionals
  • Talk to friends and family
  • Access relevant health and social care records
  • Make representations on any matter they feel is relevant to decisions concerning protective measures.
Deprivation of Liberty Safeguards (DoLS)

There are a number of different IMCA roles involved in supporting and representing people who may be subject to the Deprivation of Liberty Safeguards. It is important to be clear which role an IMCA is taking, as they are instructed for different reasons and have different rights and responsibilities.

  • Section 39A IMCAs are instructed when there is an assessment in response to a request for a standard authorisation, or a concern about a potentially unauthorised deprivation of liberty.
  • Section 39C IMCAs cover the role of the relevant person’s representative when there is a gap between appointments.
  • Section 39D IMCAs support the person, or their relevant person’s representative, when a standard authorisation is in place.

 


Frequently Asked Questions

Who decides if a person lacks capacity to make a decision?
The decision maker decides whether the person has capacity to make a specific decision. For medical treatment this would be a doctor for decisions about where someone lives or adult protection proceedings this would usually be a social worker or care manager.

The decision maker must follow the test in the Mental Capacity Act to decide if the person has the capacity
to make the decision themselves. The decision maker also decides if the person needs an IMCA.

Is the IMCA a Decision Maker?
No. The IMCA does not make decisions and does not do capacity tests. The IMCA provides information which the decision maker must take into consideration in reaching a decision in the person’s best interests.

Why do some people with family and friends still have IMCAs?
The IMCA service is only available to people who have no friends or family able to support them, however, there are some exceptions.

  • If the decision maker feels that the person’s friends or family are unable to support the person in this
    particular decision they must bring in an IMCA. This might be because the family and friends live too far
    away, are too ill, elderly or disabled, have decided they do not want to be involved or because there is
    a conflict of interest. If you feel you are able to support the person in the decision, instead of an IMCA
    you need to contact the decision maker.
  • In adult protection proceedings the decision maker is able to bring in an IMCA even if there are family
    and friends available.

Can I see the IMCAs report?
The IMCA will write the report for the decision maker, and the decision maker will decide who else needs to see the report. So any requests to see the IMCA report need to go to the decision maker.

Will the IMCA talk to me?
An IMCA might talk to the person’s family and friends if the person is not able to clearly tell the IMCA themselves about their wishes and views. If the IMCA does talk to family and friends it is to find out if they know what the person’s wishes and feelings were, or the best way to communicate with the person. Family and friends can still contact the decision maker to express their own views or concerns about the decision being made. The IMCA has a short time to do their work so they will not always contact all family and friends. They might also not contact family and friends if they are involved in adult protection proceedings.

Who can be an IMCA?
An IMCA must have relevant experience, they have usually worked for some time with vulnerable adults and people who may find it difficult to communicate, such as people with learning disabilities, mental health needs, acquired brain injury or dementia. An IMCA must have an enhanced criminal records check and have completed the national IMCA training.