6.7 Independent Mental Capacity Advocate

1. Scope

This policy describes the Calderdale Metropolitan Borough Council (CMBC) policy in relation to the Independent Mental Capacity Advocate (IMCA) service. The IMCA service is commissioned by CMBC.

The Mental Capacity Act (MCA) 2005 applies to everyone involved in the care, treatment and support of people aged 16 and over living in England and Wales who may be unable to make all or some decisions for themselves because of a mental impairment.

This policy describes situations when:

• an IMCA must be instructed;
• an IMCA may be instructed;
• an IMCA will not be instructed.

The purpose of an IMCA is to help vulnerable people who lack the mental capacity to make certain decisions. The IMCA service is normally available to those people who have no family or friends whom it would be appropriate to consult about the decisions.

A lack of capacity may be temporary or permanent. Lack of capacity is defined in the MCA 2005 (Sections 2 and 3).

The role of the IMCA is to gather information, provide support, and make representations about the person’s wishes, feelings, beliefs, and values. They will bring 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 where necessary.

3. Legislation and Guidance

• Mental Capacity Act 2005;
• Mental Health Act 1983;
• Mental Capacity Act 2005 Code of Practice;
• Mental Capacity (Deprivation of Liberty Regulations) 2008;
• Deprivation of Liberty Safeguards (DoLS) Code of Practice;
• Care Act 2014;
• Care Act and Support Statutory Guidance;
• Care and Support (Independent Advocacy) Regulations 2014.

4. Duty to Appoint an IMCA

The responsible body is under a statutory duty to instruct an IMCA to support and represent the person concerned in the situations set out below.

1. decisions relating to providing, withholding, or withdrawing serious medical treatment; or
2. where it is proposed to move a person into long-term care in a hospital or care-home; or
3. where a long-term move to a different hospital or care home is proposed; and
4. the person lacks capacity in relation to one of the specific decisions; and
5. they have no one close to them whom it would be appropriate to consult, other than people engaged in their care or treatment in a professional capacity.

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:

1. 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
2. a decision between a choice of treatments is finely balanced; or
3. what is proposed is likely to have serious consequences for the patient

If the treatment is urgent, the NHS body is not required to instruct an IMCA.

Long-term care is more than 28 days in hospital or eight weeks in a care home.

The duty to instruct an IMCA does not apply if the accommodation is a compulsory requirement under the Mental Health Act 1983. In this instance an independent mental health advocate (IMHA) should be considered.

4.1 Accommodation moves

An IMCA must be instructed if a long-term move (8 weeks or more) to different accommodation is proposed by the local authority or a local NHS body.

The duty to instruct an IMCA does not apply if the accommodation or move is a compulsory requirement under the Mental Health Act 1983. In this instance an IMHA should be considered.

If arrangements need to be made as a matter of urgency and there is no time to instruct an IMCA, then one does not need to be instructed. However, an IMCA must be instructed as soon as possible after the move.

5. Power to Appoint an IMCA

Regulations issued under the MCA 2005 extend the role of the IMCA, providing powers to the local authority and NHS to also instruct IMCAs in accommodation reviews and safeguarding adults cases.

These powers are subject to qualifying criteria, set out below:

5.1 Accommodation reviews

1. The local authority or the NHS must have arranged the original accommodation; and
2. The person whose accommodation is being reviewed must lack mental capacity to make a decision about accommodation; and
3. There is no other person appropriate to consult.

5.2 Safeguarding adults cases

1. Where safeguarding measures are being put in place in relation to the protection of vulnerable adults from abuse; and
2. Where the person lacks mental capacity to consent to one or more of the proposed safeguards.

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. Therefore, in accommodation reviews (care reviews) and safeguarding adults plans, instructing an IMCA must be considered.

If a decision is made that an IMCA will not be appointed, this does not affect the person’s statutory right to a Care Act advocate if they meet the eligibility criteria. See Independent Advocacy chapter.

6. Decision to Instruct an IMCA in Accommodation Reviews and Safeguarding Adults Cases

The regulations indicate that the local authority or NHS should establish criteria to apply when deciding if there would be a benefit from instructing an IMCA in accommodation reviews and safeguarding adults cases.

6.1 Would an IMCA be of benefit?

It is important to be consistent when reviewing the benefits that an IMCA may offer.

Suggested below are some issues for consideration when making the decision to refer to an IMCA. (They are separated them into two groups but some may apply to both.)

6.2 Care reviews

• Following all attempts to resolve and document any disagreements between the person and other parties (e.g. relatives, care home, local authority, etc.) are there are still conflicts of interest that are preventing a decision being made?
• Are life-changing decisions / arrangements being proposed?
• Is there a risk of deterioration in physical or mental health as a result of any proposed changes?
• What is the risk of emotional harm or distress?

6.3 Safeguarding adults

This is complex area requiring professional judgement, but the key question is whether the appointment of an IMCA would be of benefit to the person who lacks capacity.

• Is it important that there is an independent advocate to represent the person when there are conflicting opinions from other parties, or if there is conflict of opinion between the person and other parties.
• Is there likely to be a lengthy investigation?
• Is the issue likely to go to court?
• Are there communication problems to resolve?
• May special measures be required to ensure best evidence with a vulnerable witness?
• Are family and / or friends not considered to be appropriate to support the person?

Note

The qualifying criteria for the instruction of an IMCA in care reviews state that the local authority or the NHS must have arranged the original accommodation. Current advice indicates that staff must not ignore the situation of ‘self-funders’ when serious decisions are being taken about their welfare, or there is a risk of abuse or neglect.

If in doubt, consult your line manager.

6.4 Records

It is important to demonstrate that the appropriate process has been followed when considering IMCA referrals. Decisions, and the rationale behind decisions, should be documented in case records.

Differences of opinion between an IMCA and an assessor should ideally be resolved while the assessment is still in progress. Where there are significant disagreements between an IMCA and one or more of the assessors that cannot be resolved between them, the supervisory body should be informed before the assessment is finalised.

The supervisory body should then consider what action might be appropriate, including convening a meeting to discuss the matter.

Wherever possible, differences of opinion should be resolved informally in order to minimise the need for an IMCA to make an application to the Court of Protection. However, an IMCA should not be discouraged from making an application to the Court of Protection if they consider it necessary.

7.0 The Role of the IMCA

The IMCA:

• must try to find out what the person’s wishes and feelings, beliefs and values would be likely to be if they had capacity
• should examine any records that the Act gives them access to (See MCA Section 35 sub-section 6);
• should consider whether seeking another medical opinion would help the person who lacks capacity;
• should obtain the views of professionals 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;
• should explore the different options available;
• should not give their own opinion;
• must write a report on their findings for the local authority or NHS.

An IMCA has the same rights to challenge a decision as any other person caring for the relevant person or interested in their welfare.

The right of challenge applies both to decisions about lack of capacity and decisions about a person’s best interests.

IMCAs should find out whether the decision-maker has given all practical and appropriate support to help the person who lacks capacity to be involved as much as possible in decision-making.

If the person has communication difficulties, the IMCA should also find out if the decision-maker has obtained any specialist help (for example, from a speech and language therapist).

8. Duty to Instruct an IMCA in Relation to the Deprivation of Liberty Safeguards (DoLS)

The Deprivation of Liberty Safeguards (MCA / DoLS) were introduced to provide legal protection to vulnerable people who may be deprived of their liberty within the meaning of Article 5 of the European Convention on Human Rights.

The DoLS authorisation process includes six assessments:

• age assessment;
• mental health assessment;
• mental capacity assessment;
• best interests assessment;
• eligibility assessment;
• no refusals assessment.

As part of the best interests assessment, friends, family members, or other representatives must be consulted.

If there is nobody to represent the relevant person other than a professional or paid carer, then a Section 39A IMCA will be immediately instructed by the supervisory body to represent the person.

The IMCA must then be consulted during the best interests assessment and provide support to the relevant person (acting on their behalf where necessary) during the whole assessment process.

A person who is being deprived of their liberty must have someone to represent their interests at all times.

The supervisory body must appoint a relevant person’s representative for every standard authorisation of deprivation of liberty. They must be:

• 18 or over;
• willing to be appointed;
• able to keep in contact with the person;
• must not be financially interested in the managing authority or a relative of someone that is:
  • employed by the home in which the person is residing, or
  • employed to work in supervisory body in a role that could be related to the person’s case.

If no one is available, a Section 39C IMCA will be appointed by the supervisory body until a representative who would perform the role in a professional capacity is found.

Both the person who is deprived of liberty under a standard authorisation and their representative have a statutory right of access to an IMCA.

It is the responsibility of the supervisory body to instruct a Section 39D IMCA if the relevant person or their representative requests one.

The intention is to provide extra support to the relevant person or a family member or friend acting as their representative if they need it, and to help them make use of the review process or make an application to the Court of Protection.

The IMCA will have the right to make submissions to the supervisory body on the question of whether a qualifying requirement should be reviewed, or to give information, or make submissions, to any assessor carrying out a review assessment.

Both the person and their representative must be told about the IMCA service and how to request an IMCA.

An IMCA must be instructed whenever requested by the relevant person or their representative. A request may be made more than once during the period of the authorisation. For example, help may be sought at the start of the authorisation and then again later in order to request a review.

In addition, if the supervisory body has reason to believe that the review process or application to the Court of Protection might not be used without the support of an IMCA, then they must instruct an IMCA.

9. Situations when an IMCA will not be Instructed

IMCAs do not need to be instructed if:

1. a person who now lacks capacity previously identified / named a person that should be consulted about decisions that affect them, and that person is available and willing to help;
2. the person who lacks capacity has appointed an attorney, either under a lasting power of attorney or an enduring power of attorney, and the attorney continues to manage the person’s affairs;
3. the Court of Protection has appointed a deputy, who continues to act on the person’s behalf.

Where a person has no family or friends to represent them, but does have an attorney or deputy who has been appointed solely to deal with property and financial affairs, then an IMCA must be instructed.

Similarly if the person has a personal welfare attorney or deputy who is not authorised to make the specific decision in question, an IMCA must be appointed.

Sometimes a responsible body will not have time to instruct an IMCA (for example in an emergency or if a decision is urgent). If this is the case, this should be recorded, with the reason an IMCA has not been instructed. Where the decision concerns a move of accommodation, the local authority must appoint an IMCA as soon as possible afterwards.