7.7 Independent Mental Capacity Advocate Service

1. Introduction

The Independent Mental Capacity Advocate (IMCA) role was introduced in the Mental Capacity Act 2005 (MCA). The MCA gives people who lack capacity a right to receive support from an IMCA, in certain, specific circumstances.

The local authority has a duty to make sure that IMCAs are available to represent people who lack mental capacity to make particular decisions, so it is important that staff understand when an IMCA should 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 or  who are affected by drug or alcohol use. A person’s mental capacity may vary over time or may depend on the type of decision that needs to be made.

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.

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

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

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 (see Independent Advocacy) 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 helps the adult to receive seamless advocacy so that they don’t have to repeat their story.

2.2 Independent Mental Health Advocates

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

3. Role of the IMCA

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

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

The IMCA should not offer their own opinion or make the decision.

IMCAs 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 spend time finding out if they are able to express a view and how they communicate.

4. 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 discretionary powers to make a referral for an IMCA where they consider the appointment would be of particular benefit to the person concerned.

The local authority and the NHS have powers to instruct an IMCA to support and represent a person who lacks mental 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 mental 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.

5. 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 appropriate 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 mental capacity to make the decision and there are no family or friends who are appropriate o 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 considered on their behalf and the person has been assessed as lacking mental 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 IV of the Mental Health Act 1983. However, if a person is being detained under the MHA and the proposed treatment is for a physical illness, for example, cancer, an IMCA can and should 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.

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

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

6. When an IMCA cannot be involved

An IMCA cannot be involved if:

• a person has mental capacity to make the decision in question;
• 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 appropriate to support and represent the person who lacks mental 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 end their involvement once the decision has been finalised and 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).