The Independent Mental Capacity Advocate

1. Legal Requirements

Sections 35-41 of the Mental Capacity Act set out the statutory requirements around the provision of an Independent Mental Capacity Advocate to support and represent people who lack capacity to make their own decisions.

The statutory requirements of the Act are;

  1. That each Local Authority must make its own regulations setting out ‘reasonable arrangements’ about how and when an IMCA will be provided, and the functions that IMCA’s will carry out;
  2. That IMCA’s must be provided and carry our functions as set out in the Local Authority Regulations;
  3. That all information provide by, and submissions made by an IMCA must be considered by the Decision Maker;
  4. That the Local Authority must appoint an IMCA is specific circumstances regarding decisions about accommodation and deprivations of liberty;
  5. That the NHS must appoint an IMCA in specific circumstances regarding decisions about accommodation and serious medical treatment;
  6. That IMCA’s have powers to examine and make records of relevant records; and
  7. That IMCA’s have powers to interview the person they have been appointed to represent in private.

All of the above requirements are explained further throughout this guidance.

Need to know
Because the Mental Capacity Act places a duty on each Local Authority or CCG to make their own ‘reasonable arrangements’ about the provision and role of an IMCA it is important to refer to local Regulations at all times.

2. The Requirements of Local Regulations

Under section 35 of the Mental Capacity Act each Local Authority or CCG has a duty to make its own regulations setting out ‘reasonable arrangements’ about how and when an IMCA will be provided (outside of the specific circumstances when there is a statutory responsibility to do so), and the functions that IMCA’s will carry out.

The Act gives comprehensive guidance to the Local Authority about the provisions that should be considered in any Regulations.

The Act recommends particular provisions in the Regulations that set out;

  1. The circumstances that an IMCA will be provided; and
  2. Any conditions that the provision of an IMCA is subject to;
  3. How the Local Authority will determine the suitability of an individual to act as an IMCA;
  4. The requirements that will be placed on an IMCA once appointed;
  5. Any payments that will be made to the IMCA in carrying out their role, including any expense payments.
  6. How it will give regard for the information provided by, or submissions made by an IMCA.

The Act specifically draws to the local authorities attention the principle that an IMCA should, wherever possible not be a person who will be responsible for making a decision or carrying out an act in relation to the person they represent.

When considering the role and requirements of an IMCA once appointed, the Mental Capacity Act recommends provisions that describe the steps that a Local Authority or CCG requires an IMCA to take to;

  1. Provide support to the person they have been asked to represent;
  2. Obtain and evaluate relevant information;
  3. Ascertain what the person’s past and present wishes and feelings are;
  4. Ascertain the beliefs and values that would likely influence the person, if they had capacity;
  5. Obtain a further medical opinion where treatment is proposed and the IMCA feels that a further medical opinion is required; and 
  6. Challenge, or provide support to another person to challenge and decision that is made.

The Mental Capacity Act permits a Local Authority or CCG to review the Regulations and provisions at any time, and to make any amendments that expand or limit the role of the IMCA, so long as these do not prevent them from meeting the statutory requirement to provide an IMCA in particular circumstances.

Need to know
Because the Mental Capacity Act places a duty on each Local Authority or CCG to make their own ‘reasonable arrangements’ about the provision and role of an IMCA it is important to refer to local Regulations at all times.

3. The Role of the IMCA

The primary functions of the IMCA

The Mental Capacity Act Code of Practice sets out the things that an IMCA should do in order to represent and support the person who lacks capacity. They;

  1. Must confirm that the person instructing them has the authority to do so;
  2. Wherever possible, should interview or meet with the person who lacks capacity in private;
  3. Must act in accordance with all statutory principles of the Mental Capacity Act at all times;
  4. May examine relevant records that the Act permits them access to;
  5. Should get the views of professionals or paid carers providing care or treatment to the person who lacks capacity;
  6. Should get the views of anyone who is able to give information about the wishes, beliefs or values of the person who lacks capacity;
  7. Should gather any other information that they deem relevant or necessary;
  8. Must find out what support the person who lacks capacity has had to help them make the decision for themselves;
  9. Must try to find out what the person’s wishes and feelings, beliefs and values would be likely to be;
  10. Should find out what alternative options there are;
  11. Should consider whether getting a second medical opinion would help the person who lacks capacity; and
  12. Write a report on their findings for the Decision Maker.

Some of the functions are described in further detail below:

Establishing what practicable steps have been taken

The IMCA must;

  1. Find out what steps the Local Authority or CCG has taken to support the person to make their own decision; and
  2. Decide whether the steps that were taken were appropriate.

Through the process of doing this the IMCA may;

  1. Identify further steps that can be taken; or
  2. Reach a view that the person may regain capacity in the future.

In either case the IMCA can ask the Decision Maker to delay making the decision and, if the decision is not urgent the Decision Maker must consider doing so.

Finding and evaluating information

To gather information the IMCA should consider the need to;

  1. Meet with the person;
  2. Meet with professionals;
  3. Meet with paid carers;
  4. Examine copies of relevant health and social care records;
  5. Examine and take copies or relevant care plans and treatment plans.

When meeting with others the IMCA should;

  1. Seek to understand the information available within records and its relevance to the decision;
  2. Establish the possible impact/s of the decision on the person; and
  3. Identify whether there are alternative, less restrictive options that need to be considered.

The IMCA should make recommendations to the Decision Maker based on their findings, which must be considered.

Recommending alternative options

Specifically the IMCA must be satisfied that;

  1. The Decision Maker has considered all of the available options; and
  2. That the preferred option is decided and done in a way that is least restrictive of the person’s rights and freedom of action.

The IMCA may discuss a range of options with those persons who they consult, but must maintain the confidentiality of the person at all times.

Getting a second medical opinion

For decisions about serious medical treatment the IMCA may decide that a second medical opinion is required. A request from an IMCA for a second opinion should be treated in the same manner as a request made by the person for a second opinion.

Challenging the Decision Maker

In their role to support and represent the person who lacks capacity, the IMCA may find they need to;

  1. Ask questions;
  2. Raise issues;
  3. Offer information; and
  4. Challenge the views and decisions of others.

The Decision Maker does not have to make a decision that reflects the views of the IMCA but they must consider everything that the IMCA has to say.

If an IMCA does not believe that the Decision Maker has considered their views they have the right to make a formal complaint if the matter cannot be resolved through negotiation.

4. Statutory Powers of IMCA’s

To enable the IMCA to fulfil their functions, the Mental Capacity Act gives them powers to;

  1. Interview the person in private;
  2. Examine and take copies of health records;
  3. Examine and take copies of any record of the Local Authority (in respect of Adult Care and Support or Children’s Services functions);
  4. Examine and take copies of any other record held by the Local Authority (in respect of Adult Care and Support or Children’s Services functions);
  5. Examine and take copies of any records held by a registered service provider.
Need to know
There is one caveat to the IMCA power to examine and take copies of records. This can only be done if the person holding the record considers that the record may be relevant to the IMCA’s investigation.

5. The Provision of Serious Medical Treatment

The requirement to provide an IMCA

Under section 37 of the Mental Capacity Act an IMCA must be made available before treatment is provided when;

  1. a. An NHS body is proposing to provide (or arrange) serious medical treatment for a person who lacks capacity to consent to it; and
  2. There is no donee of a Lasting Power of Attorney or Deputy authorised to make decisions about the specific medical treatment required; and
  3. The NHS body is satisfied that there is no person (carer, donee of a Lasting Power of Attorney or Deputy) that it would be appropriate to consult in determining what would be in the person’s Best Interests.

This applies unless;

  1. Treatment needs to be provided as a matter of urgency; or
  2. The person is to receive the treatment under part 4 or 4A of the Mental Health Act 1983.
Need to know
The Decision Maker must be aware of the specific decisions that the Mental Capacity Act does not permit them to make (excluded decisions). Unless treatment needs to be provided as a matter of urgency the Court of Protection must be asked to make these decisions.

Serious medical treatment

Serious medical treatment is described in the Mental Capacity Act Code of Practice as the starting, stopping or withholding of treatment when;

  1. The choice of treatment is finely balanced; and/or
  2. The likely benefits and burdens of the treatment are finely balanced; and/or
  3. There are likely to be serious consequences to the person.

Serious consequences include;

  1. Prolonged pain;
  2. Distress;
  3. The effect of stopping life sustaining treatment;
  4. Treatment that may have lifelong consequences (for example sterilisation).

Examples of treatments that are normally considered serious include;

  1. Chemotherapy and surgery for cancer;
  2. Electro-convulsive therapy;
  3. Therapeutic sterilisation;
  4. Major surgery (for example open heart surgery);
  5. Major amputations;
  6. Treatments that will result in permanent loss of sight or hearing;
  7. Termination of pregnancy; and
  8. Withholding or withdrawing artificial hydration and nutrition.

Whether or not a treatment (or the consequences of the treatment) are considered ‘serious’ will vary depending on the specific circumstances of each person. The views of the person, and the views of any carers about whether or not something is ‘serious’ for them must be considered when decision whether it is so.

6. The Provision of Accommodation

The Provision of accommodation by the NHS

Under section 38 of the Mental Capacity Act whenever the NHS is responsible for providing and making arrangements to meet a person’s accommodation needs an IMCA must be made available before any decision is made when they are;

  1. Proposing to arrange for the person to be accommodated in a hospital or care home setting for the first time; or
  2. Proposing to move a person from one hospital or care home to another; and
  3. The person lacks capacity to consent; and
  4. There is no donee of a Lasting Power of Attorney or Deputy authorised to make decisions about accommodation; and
  5. The NHS body is satisfied that there is no person (carer, donee of a Lasting Power of Attorney or Deputy) that it would be appropriate to consult in determining what would be in the person’s Best Interests; or

This applies unless;

  1. The accommodation is required as a matter of urgency;
  2. The accommodation in a hospital is likely to be for less than 28 days;
  3. The accommodation in a care home is likely to be for less than 8 weeks;
  4. A process to authorise a Deprivation of Liberty Safeguard (DoLS) in respect of the proposed accommodation is already underway (in which case an IMCA will be appointed under section 39A or 39C); or
  5. There is already a Deprivation of Liberty Safeguard (DoLS) in place in respect of the proposed placement; or
  6. The person is to be accommodated to enable treatment under the Mental Health Act 1983.

If any of the above circumstances change the NHS body must arrange for an IMCA to be provided.

The provision of accommodation by the Local Authority

Under section 39 of the Mental Capacity Act whenever the Local Authority is responsible for providing and making arrangements to meet a person’s eligible needs an IMCA must be made available before any decision is made when they are;

  1. Proposing to arrange for the person to be accommodated in a care home setting for the first time; or
  2. Proposing to move a person from one care home to another; and
  3. The person lacks capacity to consent; and
  4. There is no donee of a Lasting Power of Attorney or Deputy authorised to make decisions about accommodation;
  5. The Local Authority is satisfied that there is no person (carer, donee of a Lasting Power of Attorney or Deputy) that it would be appropriate to consult in determining what would be in the person’s Best Interests.

This applies unless;

  1. The accommodation is required as a matter of urgency;
  2. The accommodation is likely to be required for less than 8 weeks;
  3. A process to authorise a Deprivation of Liberty Safeguard (DoLS) in respect of the proposed accommodation is already underway (in which case an IMCA will be appointed under section 39A or 39C); or
  4. There is already a Deprivation of Liberty Safeguard (DoLS) in place in respect of the proposed placement; or
  5. The person is to be accommodated to enable treatment under the Mental Health Act 1983.
If any of the above circumstances change the Local Authority must arrange for an IMCA to be provided.

7. Deprivation of Liberty Safeguards (DoLS)

Need to know
The Deprivation of Liberty Safeguards (DoLS) only apply from the age of 18.

Section 39A and 39B

Upon making a request for a deprivation of liberty to be authorised through the Deprivation of Liberty Safeguards framework (DoLS) the care home or hospital (the ‘managing authority’) making the application to the Local Authority (the ‘supervisory body’) must;

  1. Establish whether there is an appropriate person (carer, donee of a Lasting Power of Attorney or Deputy) that it would be appropriate to consult in determining what would be in the person’s Best Interests; and
  2. If there is no appropriate person, notify the Local Authority of this.

If the Local Authority receives notification that there is no appropriate person to represent the person they must instruct an Independent Mental Capacity Advocate, either;

  1. As part of the authorisation of a standard DoLS (section 39A); or
  2. Following the authorisation of an urgent DoLS to support the process of deciding whether a standard DoLS is required when the urgent DoLS expires (section 39B).

If an IMCA is required a standard DoLS authorisation cannot be made until an IMCA has been appointed and carried out relevant functions to support and represent the person.

When the duty to appoint a section 39A or 39B IMCA does not apply

The only occasion when an IMCA does not have to be instructed is where;

  1. A Deputy appointed by the Court of Protection has the power to make decisions in relation to DoLS; or
  2. A donee of a Lasting Power of Attorney has the authority to make decisions in relation to DoLS; or
  3. The person has nominated a person they wish to be consulted on such matters.

Section 39C

An IMCA must be appointed under section 39C whenever;

  1. A standard DoLS authorisation is granted or renewed; and
  2. The role of the IMCA during the DoLS process ends; and
  3. The person does not have a Relevant Person’s Representative (RPR); and
  4. The care home or hospital establishes that there is no person (carer, donee of a Lasting Power of Attorney or Deputy) that it would be appropriate to consult in determining what would be in the person’s Best Interests.

If the Local Authority receives notification that there is no appropriate person to fulfil the role of the Relevant Person’s Representative (RPR) they must instruct an IMCA as a Paid RPR until such time as an appropriate Relevant Person’s Representative can be appointed.

When the duty to appoint a section 39C IMCA does not apply

The only occasion when an IMCA does not have to be instructed is where;

  1. A Deputy appointed by the Court of Protection has the power to make decisions in relation to DoLS; or
  2. A donee of a Lasting Power of Attorney has the authority to make decisions in relation to DoLS; or
  3. The person has nominated a person they wish to be consulted on such matters.

Section 39D

An IMCA must be appointed under section 39D whenever;

  1. A standard DoLS is in place; and
  2. The person is represented by a Relevant Person’s Representative (who is not a paid RPR); and
  3. The person requests the appointment of an IMCA; or
  4. The RPR requests the appointment of an IMCA; and
  5. There is no other person (a person nominated by the person, a donee or a Lasting Power of Attorney or a Deputy) authorised to be consulted or make decisions in relation to those matters.

An IMCA must also be appointed when the Local Authority (supervisory body) believes that;

  1. Without an IMCA either the person or the RPR will be unable to exercise one or more of their relevant rights; or
  2. Without an IMCA either the person or the RPR will be unlikely to exercise one of more of their relevant rights; or
  3. Either the person or the RPR has failed to exercise one or more of their relevant rights when it would have been reasonable to do so.
Need to know

Relevant rights are;

  1. The right to apply to the Court of Protection (under section 21A); and
  2. The right to request a review of the authorisation.

A key function of an IMCA appointed under section 39D is to support the person and the RPR to understand their role and rights, and to feel confident in exercising them In particular they are expected to take reasonable steps to help the person and the RPR to understand;

  1. The effect of the authorisation;
  2. The purpose of the authorisation;
  3. The duration of the authorisation;
  4. Any conditions of the authorisation;
  5. The reasons why each professional involved in carrying out assessments that resulted in the authorisation made the decisions that they did;
  6. The relevant rights; and
  7. How to exercise the relevant rights.

When the duty to appoint a section 39D IMCA does not apply

The only occasion when an IMCA does not have to be instructed is where;

  1. A Deputy appointed by the Court of Protection has the power to make decisions in relation to DoLS; or
  2. A donee of a Lasting Power of Attorney has the authority to make decisions in relation to DoLS; or
  3. The person has nominated a person they wish to be consulted on such matters.

The duty to appoint an IMCA under section 39D may not apply if;

  1. The person is already receiving advocacy support; and
  2. The person does not make a request to the Local Authority for an IMCA; and
  3. The RPR does not make a request to the Local Authority for an IMCA; and
  4. The Local Authority is satisfied that the advocate in place is able to support the person and the RPR to understand and exercise their relevant rights.

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