1. Introduction

The Independent Mental Capacity Advocate (IMCA) was introduced by the Mental Capacity Act 2005 (MCA). The Act gives some people who lack capacity a right to receive support from an IMCA.

The local authority has a duty to make sure that IMCAs are available to represent people who lack capacity to make specific decisions, so staff will need to know when an IMCA must be involved (see Mental Capacity).

IMCAs are independent and generally work for advocacy providers who are not part of a local authority or the NHS.

2. Eligibility

2.1 Independent Mental Capacity Advocates

The majority of adults who access the IMCA service are people with learning disabilities, older people with dementia, people who have an acquired brain injury or people with mental health problems and / or are affected by drug or alcohol use.

IMCAs also act when people have a temporary lack of capacity because they are unconscious or barely conscious whether due to an accident, being under anaesthetic or as a result of other conditions.

A person’s capacity may vary over time or may depend on the type of decision that needs to be made.

Many adults have significant barriers to communication and are unable to instruct the advocate themselves. In addition, many people using the service will be unable to express a view about the proposed decision.

The IMCA service is provided for any person aged 16 years or older, who has no one able to support and represent them, and who lacks capacity to make a decision about either:

  • a long-term care move;
  • serious medical treatment;
  • safeguarding adult procedures; or
  • a care and support plan review.

Such a person will have a condition that is affecting their ability to make decisions.

IMCAs should be available to people who are in prison, in hostels or homeless and who lack capacity to make decisions about serious medical treatment or long term accommodation.

Many people who qualify for advocacy under the Care Act 2014 will also qualify for advocacy under the MCA. The same advocate can provide support as an advocate under the Care Act and under the MCA. This is to enable the person to receive seamless advocacy so that they don’t have to repeat their story. Whichever legislation the advocate is acting under, they should meet the appropriate requirements for an advocate under that legislation.

Both the Care Act and the MCA recognise the same areas of difficulty, and both require a person with these difficulties to be supported and represented, either by family or friends, or by an independent advocate or  independent mental capacity advocate in order to communicate their views, wishes and feelings.

2.2 Independent Mental Health Advocates

Under the Mental Health Act 1983 (MHA) people, known as ‘qualifying patients’, are entitled to the help and support from an Independent Mental Health Advocate (IMHA).

Independent advocacy under the duty flowing from the Care Act is similar in many ways to independent advocacy under the MCA. Regulations have been designed to enable independent advocates to be able to carry out both roles. For both:

  • the advocate’s role is to support and represent people;
  • the advocate’s role is primarily to work with people who do not have anyone appropriate to support and represent them;
  • the advocates require a similar skill set;
  • regulations about the appointment and training of advocates are similar;
  • local authorities are under a duty to consider representations made by both independent advocates and IMCA;
  • advocates will need to be well known and accessible;
  • advocates may challenge local authority decisions;
  • people who qualify for an IMCA in relation to the care planning and care review – as that planning may result in an eligible change of accommodation decision – will (in nearly all cases) also qualify for independent advocacy under the Care Act. The provisions of the Care Act are however wider and apply to care planning irrespective of whether it may result in a change of accommodation decision. People for whom there is a power to instruct an IMCA in relation to care review will (in nearly all cases) also qualify for independent advocacy under the Care Act. The Care Act however creates a duty rather than a power in relation to advocacy and care reviews.

3. The Care Act and the Mental Capacity Act

3.1 Advocacy duties under the Care Act

The duty to provide independent advocacy is to provide support to:

  • people who have capacity but who have substantial difficulty in being involved in the care and support ‘processes’;
  • people in relation to their assessment and / or care and support planning regardless of whether a change of accommodation is being considered for the person;
  • people in relation to the review of a care and / or support plan;
  • people in relation to safeguarding processes (though IMCAs may be involved if the authority has exercised its discretionary power under the MCA and appointed an IMCA if protective measures are being proposed for a person who lacks capacity, at the time to make the relevant decisions or understand their consequences);
  • carers who have substantial difficulty in engaging, whether or not they have capacity;
  • people for whom there is someone who is appropriate to consult for the purpose of best interests decisions under the Mental Capacity Act, but who is not able and / or willing to facilitate the person’s involvement in the local authority process;
  • adults who are subject to a safeguarding enquiry or safeguarding adult review

3.2 Care Act and Mental Capacity Act

A person may be entitled to an advocate under the Care Act and then, as the process continues it may be identified that there is a duty to provide an advocate (IMCA) under the MCA. This will occur for example when during the process of assessment or care and support planning it is identified that a decision needs to be taken about the person’s long term accommodation. It would be unhelpful to the individual and to the local authority for a new advocate to be appointed at that stage.

It would be better that the advocate who is appointed in the first instance is qualified to act under the MCA (as IMCAs) and the Care Act and that the commissioning arrangements enable this to occur.

4. Role of the IMCA

The IMCA should go to meetings on the adult’s behalf and examine proposed decisions to make sure that:

  • all options have been considered;
  • where the adult’s own preferences and dislikes can be identified, these are taken into account;
  • no particular agendas are being pursued; and
  • the person’s civil, human and welfare rights are being respected.

The IMCA is not best interests advocacy. The IMCA should not offer their own opinion or make the decision.

They should be experienced at working with people who have difficulties with communication. They should always attempt to get to know the adult’s preferred method of communication and spends time finding out if a person is able to express a view and how they communicate.

5. Safeguarding Adult Cases and Care and Support Plan Reviews

When people meet the IMCA criteria, the local authority and the NHS have a duty to instruct an IMCA for changes in accommodation and serious medical treatment decisions.

For safeguarding adult cases and care and support plan reviews, the local authority and the NHS have powers to appoint an IMCA where they consider the appointment would be of particular benefit to the person concerned.

Local authorities in England should have a policy on how IMCAs will be involved in care and support plan reviews and safeguarding adult procedures.

The local authority and the NHS have powers to instruct an IMCA to support and represent a person who lacks capacity where:

  • it is alleged the person is or has been abused or neglected by another person; or
  • it is alleged the person is abusing or has abused another person

A responsible body 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); or
  • there are no family or friends whom it would be appropriate to consult.

6. Referrals and the Referral Process

Any adult who meets the following criteria must be referred to the IMCA service.

  • Is a decision being made about serious medical treatment or a change of accommodation; or a care and support plan review or safeguarding adult procedures?
  • Does the person lack capacity to make this particular decision?
  • Is the person over 16 years old?
  • Is there nobody (other than paid staff providing care or professionals) whom the decision maker considers willing and able to be consulted about the decision? (This does not apply to safeguarding adult cases.)

NHS bodies must instruct and take into account information from an IMCA where decisions are proposed about serious medical treatment, where the person lacks capacity to make the decision and there are no family or friends who are willing and able to support the person.

Serious medical treatment involves:

  • giving new treatment;
  • stopping treatment that has already started; or
  • withholding treatment that could be offered; and where there is either:
    1. a fine balance between the benefits and the burdens and risks of a single treatment;
    2. choice of treatments which are finely balanced; or
    3. what is proposed would be likely to involve serious consequences.

A person has a right to an IMCA if such treatment is being contemplated on their behalf and the person has been assessed as lacking capacity to make the decision for themselves at that time.

An IMCA cannot be involved if the proposed treatment is for a mental disorder and that treatment is authorised under Part 1V of the Mental Health Act 1983. However, if a person is being treated under the MHA and the proposed treatment is for a physical illness, for example, cancer, an IMCA can be involved

Local authority and NHS staff must be able to identify when a person has a right to an IMCA and know how to instruct an IMCA.

Firstly, they should know which organisation has been commissioned to provide an IMCA service in the local authority. Local arrangements will be in place with each IMCA service provider regarding the ways in which referrals can be made.

At the time when the referral is made it must be evident that:

  • a person lacks the capacity to make the particular decision;
  • the decision is either serious medical treatment; a change in accommodation, a care review or an adult protection case; and
  • there is nobody who can appropriately support and represent the person (this does not apply to safeguarding adults).

7. When an IMCA cannot be involved

An IMCA cannot be involved if:

  • a person has capacity;
  • the proposed serious medical treatment is authorised under the MHA and is therefore for a mental disorder rather than a physical condition;
  • the proposed long term change in accommodation is a requirement under the MHA;
  • there is no identifiable decision about a long term change in accommodation or serious medical treatment or decisions relating to a care and support plan review or safeguarding adult procedures;
  • there is any other person (not in a paid capacity) who is willing and able to support and represent appropriately the person who lacks capacity; or
  • decisions are being made in relation to a person’s finances, unless there are safeguarding adult procedures in which an IMCA is involved.

The IMCA will stop being involved in a case once the decision has been finalised and they are aware that the proposed action has been carried out. They will not be able to provide ongoing advocacy support to the person. If it is felt that a person needs advocacy support after the IMCA has withdrawn, it may be necessary to make a referral to a local advocacy organisation (see Independent Advocacy).

8. Person requiring an IMCA is Receiving Funding from outside the Area where they are currently Living

Each IMCA service covers a local authority area and all eligible people in that area, whether on a permanent or temporary basis, must be referred to the local IMCA service.

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