Joint North-West London Boroughs and Lambeth policy
on instructing
Independent Mental Capacity Advocates (IMCAs)
under the Mental Capacity Act 2005
within the boundaries of Brent, Ealing, Hammersmith and Fulham, Harrow, Hillingdon,
Hounslow. Kensington and Chelsea, Lambeth and Westminster
Contents
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Introduction
Statutory criteria for instructing an IMCA
Statutory criteria for instructing an IMCA in relation to the Relevant Person’s
Representative (Representative) during an authorisation of Deprivation of Liberty
Discretionary criteria for instructing an IMCA
Functions of an IMCA
Additional advocacy
Referral process
Where there is disagreement between the decision-maker and the IMCA
Appendix I: Serious Medical Treatment
Appendix II: Summary of circumstances when to instruct an IMCA
Introduction
1.
Independent Mental Capacity Advocates (IMCAs) are introduced under s35,
Mental Capacity Act 2005 (the Act), in order to provide non-directed advocacy
to people aged 16 and over, who lack capacity to make certain decisions
2.
The Act refers to IMCAs being “instructed” to represent a person lacking
capacity. Staff will normally consider this as referring to an IMCA.
3.
The person who instructs the IMCA will be the decision-maker, although other
staff could make the actual referral. However, the decision-maker retains
overall responsibility for the referral.
4.
The identity of the decision-maker depends on the decision to be made. The
decision-maker will be the person who is planning to take the action or make
the decision in relation to a person lacking capacity
5.
4.1
For medical treatment the doctor proposing the treatment will be the
decision-maker
4.2
For nursing care, the nurse will be the decision-maker
4.3
For social care decisions, the social care professional will be the
decision-maker
IMCAs can only be instructed when certain criteria are met. These criteria
include:
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Joint North-West London Boroughs and Lambeth policy
on instructing
Independent Mental Capacity Advocates (IMCAs)
under the Mental Capacity Act 2005
within the boundaries of Brent, Ealing, Hammersmith and Fulham, Harrow, Hillingdon,
Hounslow. Kensington and Chelsea, Lambeth and Westminster
5.1
The absence of family, friends or informal carers who would otherwise
be able to speak for the person1
5.2
The type of decision required
5.3
The request for or the existence of an authorisation to deprive the
person of their liberty
6.
Certain criteria place a statutory duty on the local authority or the health trust to
instruct an IMCA, while other, discretionary criteria permit the local authority or
the health trust to instruct an IMCA.
7.
Local authorities and health trusts are required in the regulations to consider
whether or not to exercise their discretionary power to instruct an IMCA
whenever the qualifying criteria are met.
8.
This policy gives guidance on when the statutory criteria are met, and an IMCA
must be instructed, and also when the local authority and health trust believe
an IMCA should be instructed, when the discretionary criteria are met.
Top of document
Statutory criteria for instructing an IMCA
9.
These criteria will always require the instruction of an IMCA;
9.1
The person has no family, friend or unpaid carer whom it would be
appropriate to consult in deciding upon the person’s best interests.
9.2
A person must have been assessed as lacking capacity to consent to a
“relevant decision”2.
9.3
It is important to remember that just because a person consents to (or
is compliant) with the decision in question, if they lack capacity to make
the decision, it will still be necessary to instruct an IMCA
10. The relevant decisions which indicate a statutory need for an IMCA are;
10.1
A person is in need of “serious medical treatment”3 (section 37); or
1
When deciding whether or not someone has a relative, friend or an informal carer to consult
regarding the person’s best interests, consideration should be given to the availability of that person,
their willingness to be consulted, and their suitability (particularly in terms of the quality of the
relationship with the service user).
2
A “relevant decision” is a decision which means the decision-maker must instruct an IMCA
(specified in para 10), or consider instructing an IMCA (paras 21 and 22)
3
See appendix I for definition of Serious Medical Treatment and Code of Practice guidance.
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Joint North-West London Boroughs and Lambeth policy
on instructing
Independent Mental Capacity Advocates (IMCAs)
under the Mental Capacity Act 2005
within the boundaries of Brent, Ealing, Hammersmith and Fulham, Harrow, Hillingdon,
Hounslow. Kensington and Chelsea, Lambeth and Westminster
10.2
An NHS body is proposing to accommodate a person in hospital for a
period of 28 days or more, or in a care home for 8 weeks or more
(section 38); or
10.3
A local authority is proposing to accommodate a person in residential
accommodation4 for 8 weeks or more (section 39); or
10.4
A change of hospital or care home is planned (section 38 or section
39, dependent on whether it is provided by an NHS body or a local
authority)
10.5
The following situations in relation to Deprivation of Liberty
Safeguards:
10.5.1 – an urgent deprivation of liberty authorisation has been given, or a
request for a standard deprivation of liberty authorisation has been
made, in respect of a person and the managing authority of the
relevant hospital or care home is satisfied that there is nobody, other
than people engaged in providing care or treatment for the person in a
professional capacity or for remuneration, whom it would be
appropriate to consult in determining what would be in the person’s
best interests (39A).
10.5.2 – a supervisory body has appointed an assessor to determine whether
or not there is an unauthorised deprivation of liberty in respect of a
person and the managing authority of the relevant hospital or care
home is satisfied that there is nobody, other than people engaged in
providing care or treatment for the person in a professional capacity or
for remuneration, whom it would be appropriate to consult in
determining what would be in the person’s best interests (39 A)
10.5.3 – a person deprived of their liberty is without a relevant person’s
representative (39 C).
10.5.4 – a person deprived of their liberty who has an unpaid relevant
person’s representative has requested the support of an advocate (39
D).
10.5.5 – an unpaid relevant person’s representative of a person deprived of
their liberty has requested the support of an advocate (39D).
4
“Residential accommodation” is defined as accommodation which has been arranged by the NHS
body or local authority following an assessment under s47 NHS and Community Care Act 1990. It
includes care or nursing home; sheltered and extra care sheltered accommodation; hostel or other
housing
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Joint North-West London Boroughs and Lambeth policy
on instructing
Independent Mental Capacity Advocates (IMCAs)
under the Mental Capacity Act 2005
within the boundaries of Brent, Ealing, Hammersmith and Fulham, Harrow, Hillingdon,
Hounslow. Kensington and Chelsea, Lambeth and Westminster
10.5.6 – the supervisory body believes that the person deprived of their liberty
will benefit from the support of an advocate (39 D)
10.5.7 - the supervisory body believes that the unpaid relevant person’s
representative will benefit from the support of an advocate (39 D)
10.5.8 - the supervisory body believes that the person deprived of their liberty
and their unpaid relevant person’s representative will both benefit from
the support of an advocate (39 D).
11. Sometimes stays in hospital or residential accommodation last longer than
originally planned. Once it is evident that the stay will breach the relevant
threshold, an IMCA must be instructed.
12. The requirement to instruct an IMCA following the statutory criterion in 10.3
above can, when it is linked to hospital discharge, lead to a tension between
the Act and the Community Care (Delayed Discharges) Act 2003.
12.1
It is important to make every attempt to avoid delays in discharge, by
effective assessments of capacity and early identification of a “relevant
decision” (see para 29 below), but this is not always possible
12.2
A decision whether or not an IMCA is required in these circumstances
must depend on the plan for P following discharge
12.3
It is not an appropriate use of the Act to discharge P to an interim or
“trial” placement without instructing an IMCA, when the plan indicates a
possible long-term move
12.4
It is only acceptable in the context of the Act, when the interim move is
clearly intended to last less than 8 weeks (e.g. respite care or
rehabilitation)
Statutory criteria for instructing an IMCA in relation to the Relevant Person’s
Representative (Representative) during an authorisation of Deprivation of
Liberty
13. The Deprivation of Liberty Safeguards create additional criteria where an IMCA
must be instructed
14. Where there is a gap in the appointment of a Representative, the Managing
Authority must notify the Supervisory Body if there is no one who can support
and represent the person, other than someone who is providing care or
treatment in a professional capacity
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Joint North-West London Boroughs and Lambeth policy
on instructing
Independent Mental Capacity Advocates (IMCAs)
under the Mental Capacity Act 2005
within the boundaries of Brent, Ealing, Hammersmith and Fulham, Harrow, Hillingdon,
Hounslow. Kensington and Chelsea, Lambeth and Westminster
14.1
The Supervisory Body must in these circumstances appoint an IMCA
to undertake the role of the Representative until a new Representative
has been appointed (section 39C)
14.2
As soon as a new Representative has been appointed, the role of the
IMCA will end.
15. Either the person or an unpaid Representative can request the assistance and
advice of an IMCA at any time during the period of an authorisation (section
39D)
15.1
The function of the IMCA in these circumstances is to help the person
or the Representative to understand the effect, purpose and duration of
the authorisation, why the person met the criteria for authorisation, any
conditions attached and the relevant rights.
15.2
The IMCA may
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assist the person or their Representative in requesting a review or
making an application to the Court of Protection,
make submissions to the Supervisory Body on whether a qualifying
requirement should be reviewed, and
make submissions to any assessor carrying out a review assessment.
15.3
A request for an IMCA can be made more than once during the
duration of an authorisation.
15.4
An IMCA cannot be instructed under section 39D when the person has
a paid Representative.
16. The Supervisory Body will instruct an IMCA to support the person and the
unpaid Representative as soon as possible after the standard authorisation has
been given.
17. The Supervisory Body must instruct an IMCA if at any other time it has reason
to believe that either the person or the unpaid Representative needs assistance
in exercising their rights in relation to reviews and accessing the Court of
Protection.
Discretionary criteria for instructing an IMCA
18. Section 41 of the Act allows for regulations to expand the role of IMCAs to
include additional statutory or discretionary criteria
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Joint North-West London Boroughs and Lambeth policy
on instructing
Independent Mental Capacity Advocates (IMCAs)
under the Mental Capacity Act 2005
within the boundaries of Brent, Ealing, Hammersmith and Fulham, Harrow, Hillingdon,
Hounslow. Kensington and Chelsea, Lambeth and Westminster
19. Consideration must always be given to instructing an IMCA in circumstances
set out in paras 21 and 22 of these guidelines.
20. When instructing an IMCA, the decision-maker must believe that the relevant
criteria are met and that there will be significant benefit to the person in having
the involvement of an IMCA.
21. The decision to instruct or not to instruct an IMCA and how the decision was
reached must be recorded.
22. Safeguarding Adults
22.1
An IMCA can be instructed whether or not the person has family,
friends or unpaid carers in relation to safeguarding adults cases.
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An IMCA should be instructed where an adult at risk is allegedly being
abused/neglected, or is a person who may have caused harm, and
Where protective measures are being considered and where the
person lacks capacity to consent to these measures, and
Where the protective measures would have a significant impact on the
person and/or
Where there is an intractable conflict of views between professionals
regarding what is considered to be the best interests of the vulnerable
adult and/or
Where the vulnerable adult is strongly indicating that their views and
wishes have not been fully taken into account by the decision-maker.
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22.2
The decision to instruct an IMCA will normally be made at the multiagency safeguarding strategy meeting, or at a case conference, or at
the safeguarding manager’s discretion. If there is any doubt about
whether to instruct an IMCA, the safeguarding manager should discuss
the case with the duty IMCA.
22.3
Wherever possible, or when additional advice is needed, the decisionmaker will also discuss the case with the local safeguarding adults (or
children if applicable) co-ordinator.
22.4
The decision-maker will always notify the local safeguarding adults (or
children if applicable) co-ordinator when an IMCA has been instructed
within the safeguarding process.
22.5
Please see the SCIE Practice Guidance for further information.
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Joint North-West London Boroughs and Lambeth policy
on instructing
Independent Mental Capacity Advocates (IMCAs)
under the Mental Capacity Act 2005
within the boundaries of Brent, Ealing, Hammersmith and Fulham, Harrow, Hillingdon,
Hounslow. Kensington and Chelsea, Lambeth and Westminster
23. Accommodation reviews
23.1
Consideration should be given to instructing an IMCA for the first
accommodation review following the person’s move.
23.2
It is good practice to instruct an IMCA for subsequent accommodation
reviews until the person has fully settled into the accommodation and
the arrangements for their care are clear.
23.3
The same IMCA that represented the person for the accommodation
decision should be requested for the accommodation reviews, as long
as the person is still within Greater London. If the person is outside of
London, the referrer should discuss with the Duty IMCA whether the
same IMCA is able to take on the case; if not, the referrer should refer
to the IMCA service in the person’s new locality.
23.4
An IMCA should also be instructed:
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Where the local authority or health trust have arranged the original
accommodation, and
The person whose accommodation is being reviewed lacks capacity to
make decisions about the review or the recommendations arising from
the review, and
There is no family, friend or unpaid carer appropriate to consult, and
When the review indicates or is likely to indicate a decision to
significantly change the care plan.
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Functions of an IMCA
24. The functions of an IMCA are laid out in s36 and the Code of Practice (para
10.20) to the Act. They include the following:
24.1
to provide support to the person who he has been instructed to
represent ("P") so that P may participate as fully as possible in any
relevant decision
24.2
to obtain and evaluate relevant information, including access to health
or social care records, where necessary. This includes:
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interviewing in private the person who lacks capacity
examining, and taking copies of, any records that the person holding
the record thinks are relevant to the investigation
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Joint North-West London Boroughs and Lambeth policy
on instructing
Independent Mental Capacity Advocates (IMCAs)
under the Mental Capacity Act 2005
within the boundaries of Brent, Ealing, Hammersmith and Fulham, Harrow, Hillingdon,
Hounslow. Kensington and Chelsea, Lambeth and Westminster
24.3
to ascertain what P's wishes and feelings would be likely to be, and the
beliefs and values that would be likely to influence P, if he had capacity
24.4
to ascertain what alternative courses of action are available in relation
to P
24.5
to obtain a further medical opinion where treatment is proposed and
the advocate thinks that one should be obtained
24.6
to provide a report on their findings for the local authority or the NHS
body, which the decision-maker must take account of before taking any
action.
In urgent cases, where there is insufficient time to write a report, a
verbal report will be provided to the decision-maker. A written report
will follow.
In the case of a section 39A IMCA referral (see 10.5 above), the IMCA
has the right to give information or make submissions to the assessors
(DoLS Code of Practice 3.23) as a way of ensuring that their
information is taken into account within the statutory timescales.
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25. The IMCA may also challenge, or provide assistance for the purpose of
challenging any relevant decision, including the test of capacity and best
interest determination.
26. The IMCA has the same rights to challenge a decision as they would if they
were any person engaged in caring for P or interested in P’s welfare
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Additional advocacy
27. A referral may be made for an IMCA to be involved if the decision in question
does not fit the above criteria in the following circumstances:
27.1
If there is a dispute about what is in a service-user’s best interests in
relation to serious medical treatment, a change of accommodation or
an accommodation review.
27.2
An accommodation review following a Deprivation of Liberty
Safeguards assessment which has concluded that the deprivation of
liberty is not in the person’s best interests and therefore the care plan
needs to be changed.
28. Any referral for additional advocacy must be made through the borough’s
Mental Capacity Act/IMCA Lead.
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Joint North-West London Boroughs and Lambeth policy
on instructing
Independent Mental Capacity Advocates (IMCAs)
under the Mental Capacity Act 2005
within the boundaries of Brent, Ealing, Hammersmith and Fulham, Harrow, Hillingdon,
Hounslow. Kensington and Chelsea, Lambeth and Westminster
Top of document
Referral process
29. It is vital that accurate and timely identification of the need for an IMCA is made
in all cases.
30. The referral should demonstrate that the criteria are met for instructing an
IMCA, including clear evidence of lack of capacity to make the decision in
question.
31. Delay in identifying the need for an IMCA is likely to cause delays in medical
treatment, discharge from hospital and placement in care homes.
32. Timely referral to an IMCA is dependent on an effective assessment of mental
capacity and identification of a “relevant decision”.
33. When a need for referral to an IMCA has been identified, the IMCA referral form
must be completed and forwarded to POhWER, PO Box 14043, Birmingham,
B6 9BL; fax 0300 456 2365; email [email protected] . The form is
available on the POhWER website.
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Where there is disagreement between the decision-maker and the IMCA
34. Every attempt should be made to resolve differences as quickly as possible as
protracted disputes between IMCAs and decision-makers are unlikely to serve
the person’s best interests.
35. However, where disagreements do arise, there are a variety of methods of
settling disagreements.
36. In the first instance, the IMCA and decision-maker should attempt wherever
possible to resolve their differences informally, honestly self-assessing whether
their disagreement may arise from factors other than what they believe to be in
the person’s best interests.
37. Involvement of the IMCA’s and decision-maker’s line managers may be able to
resolve the problem and a meeting should be held if necessary. The borough’s
Mental Capacity Act/IMCA Lead may also be able to help resolve the dispute.
38. If these informal approaches are unsuccessful in resolving the difference, a
number of formal approaches can be used:
38.1
For health care or treatment:
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Joint North-West London Boroughs and Lambeth policy
on instructing
Independent Mental Capacity Advocates (IMCAs)
under the Mental Capacity Act 2005
within the boundaries of Brent, Ealing, Hammersmith and Fulham, Harrow, Hillingdon,
Hounslow. Kensington and Chelsea, Lambeth and Westminster
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38.2
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39.
Consultation with PALS
Use of the NHS complaints procedure
Engaging the Independent Complaints Advocacy Service (ICAS)
For social care decisions:
Use of the care home’s complaints procedure (if the person is in a care
home)
Use of the local authority complaints procedure
Ultimately, and in particularly serious or urgent cases, either party can seek
permission to refer a case to the Court of Protection for a decision.
Top of document
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Joint North-West London Boroughs and Lambeth policy
on instructing
Independent Mental Capacity Advocates (IMCAs)
under the Mental Capacity Act 2005
within the boundaries of Brent, Ealing, Hammersmith and Fulham, Harrow, Hillingdon,
Hounslow. Kensington and Chelsea, Lambeth and Westminster
Appendix I
Serious medical treatment
Serious medical treatment is defined in the Mental Capacity Act 2005 (Independent
Mental Capacity Advocates) (General) Regulations 2006.
Serious medical treatment is treatment which involves providing, withdrawing or
withholding treatment in circumstances where:
o 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,
o in a case where there is a choice of treatments, a decision as to which one
to use is finely balanced, or
o 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:
o cause serious and prolonged pain, distress or side effects
o have potentially major consequences for the patient (for example, stopping
life-sustaining treatment or having major surgery such as heart surgery), or
o have a serious impact on the patient’s future life choices (for example,
interventions for ovarian cancer)
The Code of Practice gives some examples of medical treatments which could be
considered serious, for the purposes of the Act:
o chemotherapy and surgery for cancer;
o electro-convulsive therapy;
o therapeutic sterilisation;
o major surgery (such as open-heart surgery or brain/neuro-surgery);
o major amputations (for example, loss of an arm or leg);
o treatments which will result in permanent loss of hearing or sight;
o withholding or stopping artificial nutrition and hydration;
o termination of pregnancy
However, the Code of Practice adds that these are illustrative examples only, and
whether or not these procedures are considered serious medical treatment in any
given case will depend on the circumstances and the consequences for the patient.
Decision-makers who are not sure whether they need to instruct an IMCA should
consult their colleagues.
The only situation in which the duty to instruct an IMCA need not be followed, is
when an urgent decision is needed (for example to save someone’s life). This
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Joint North-West London Boroughs and Lambeth policy
on instructing
Independent Mental Capacity Advocates (IMCAs)
under the Mental Capacity Act 2005
within the boundaries of Brent, Ealing, Hammersmith and Fulham, Harrow, Hillingdon,
Hounslow. Kensington and Chelsea, Lambeth and Westminster
decision must be recorded with the reason for non-referral. If any further serious
treatment is being considered, a referral to IMCA is necessary.
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Joint North-West London Boroughs and Lambeth policy
on instructing
Independent Mental Capacity Advocates (IMCAs)
under the Mental Capacity Act 2005
within the boundaries of Brent, Ealing, Hammersmith and Fulham, Harrow, Hillingdon,
Hounslow. Kensington and Chelsea, Lambeth and Westminster
Appendix II
Summary of circumstances when to instruct an IMCA
The use of this summary is dependent on all practicable steps having been taken to
help the person make the decision without success, and an assessment of capacity
which concluded that the person lacked capacity to make the decision.
1.
When the person lacks capacity and there is no one to consult, an IMCA must
be instructed when the decision is regarding:
o
Serious medical treatment
o
Moving into residential accommodation for more than 8 weeks
o
A move into hospital for more than 28 days
o
A change of hospital or residential accommodation lasting longer than
the relevant period
o
An assessment in relation to a Deprivation of Liberty authorisation
2.
An IMCA must also be instructed in the following circumstances:
o
An authorisation for Deprivation of Liberty is in force, and a gap occurs
in the appointment of a Representative if there is no one who can
support and represent the person, other than someone who is
providing care or treatment in a professional capacity
o
The person or an unpaid Representative requests the support of an
IMCA
o
The Supervisory Body believes the person or the unpaid
Representative need the support of an IMCA to access their statutory
rights to request a review or to apply to the Court of Protection.
3.
An IMCA can also be instructed when the person lacks capacity and is subject
to safeguarding adults procedures where a vulnerable adult is allegedly being
abused/neglected, or is an alleged abuser, and
o
Protective measures are being put in place, or being considered and
the person is unable to consent to these measures, and
o
Where a life-changing decision is involved, and consulting of friends
and family is compromised by the reasonable belief that they would not
act in the person’s best interests and/or
o
Where there is an intractable conflict of views between professionals
regarding what is considered to be the best interests of the vulnerable
adult and/or
o
Where the vulnerable adult is strongly indicating that their views and
wishes have not been fully taken into account by the decision-maker.
4.
An IMCA can also be instructed for an accommodation review, when the
person lacks capacity and there is no one to consult, in the following
circumstances:
o
the first accommodation review following the person’s move
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Joint North-West London Boroughs and Lambeth policy
on instructing
Independent Mental Capacity Advocates (IMCAs)
under the Mental Capacity Act 2005
within the boundaries of Brent, Ealing, Hammersmith and Fulham, Harrow, Hillingdon,
Hounslow. Kensington and Chelsea, Lambeth and Westminster
o
o
o
subsequent accommodation reviews until the person has fully settled
into the accommodation and the arrangements for their care are clear
if the review indicates a decision to change a care plan with significant
implications for the person lacking capacity, or
the person is exhibiting significant dissatisfaction with their care plan.
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