IMCA

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What is IMCA?

The Mental Capacity Act (MCA) 2005 came into force in 2007 and introduced the statutory role of the Independent Mental Capacity Advocate (IMCA) to support people who lack capacity to make certain decisions.

This can include:

  • People with dementia or mental ill health
  • People with learning disabilities
  • People with physical disabilities
  • People who have had a stroke
  • People with acquired brain injuries
  • People who are unconscious or in a coma

Local Authorities and NHS bodies have a duty to instruct an IMCA to support an individual if they meet the criteria as laid out in the Act. The Act sets down Who can refer people to an IMCA and Who should be referred to an IMCA.

Who should be referred to the IMCA service?

A referral must be made to an IMCA service by the ‘decision‐maker’ (see below) for any person who meets all the following criteria:

  • A decision is being made about the person, relating to, either
    1. serious medical treatment or
    2. long term moves (more than 28 days in hospital/8 weeks in care home) and
  • the person does not have the capacity to make that decision and
  • they have no 'appropriate' family or friends to consult with.

You may also be able to make a referral where a person does not have the capacity to agree to the arrangements for;

  • accommodation reviews, where there are no family or friends able to support and represent the person.
  • adult protection proceedings, where the person is victim or alleged perpetrator, regardless of family and friend involvement.

You will need to check your Local Authority guidelines about when you can refer for reviews and adult protection proceedings.

Who can refer people to the IMCA service?

Skills for People provides an IMCA services in several parts of the North East, currently in Durham, Darlington, and Teesside.

It is the decision‐maker's legal responsibility to decide if the person meets the criteria and to make the referral. The decision maker is the NHS or the Local Authority. E.g. Dr/ care manager.

We may accept an initial referral from someone other than a decision‐maker where the referrer has been unsuccessful in persuading the decision‐maker to refer and it seems likely that the person meets the criteria for an IMCA. In this situation however, we will need to contact the decision‐maker to authorise the instruction of an IMCA before we provide the IMCA service. In Teesside, referrals should be made to the Tees Advocacy Hub.

What will the IMCA do?

The IMCA's role is set out in the MCA and further in IMCA Regulations and the Code of Practice:

  • support and represent the person in the decision making process
  • can meet the person in private,
  • find out the person's past and present wishes, feelings, values
  • evaluate information including accessing and copying relevant social and medical records
  • evaluate alternative courses of action
  • consult with others involved in the person's life
  • establish the support given to the person in the decision making process
  • seek a further medical opinion if necessary
  • check the Mental Capacity Act principles and best interest check list are being followed
  • prepare a report, which the decision maker has a legal duty to consider
  • challenge the decision (including capacity) if necessary, informally first and through Court of protection as a last resort

Deprivation of Liberty Safeguards (DOLS)

DOLS were introduced by the Mental Capacity Act 2005 and came into effect in April 2009. They provide a legal framework and right to appeal for vulnerable people to ensure they are not deprived of their liberty unless it is in their best interests. They do not apply to anyone who is subject to the Mental Health Act except in rare circumstances. DOLS only apply within care homes and hospitals, to people who are 18 and over and who

  • lack capacity to agree to care or treatment, and
  • are suffering from a disorder of the mind, and
  • their carers believe it is in their best interests to deprive them of their liberty to protect them from harm.

If someone is going through the DOLS process and does not have someone who is appropriate to consult, under the Mental Capacity Act they have the legal right to an IMCA. There are three IMCA roles in the DOLS process:

1. IMCA DOLS Advocate (S39 A IMCA)

The IMCA DOLS must be instructed by the supervisory body if the person subject to the DOLS has no‐one who is appropriate to consult, namely family or significant friends.

The S39A IMCA has additional rights and responsibilities to the original IMCA role. The S39A IMCA should be given the relevant paperwork concerning the case, for instance assessments from the supervisory body. They also have the right to apply to the Court of Protection for permission to take the person's DOLS case to court.

2. Section 39C IMCA Temporary Relevant Persons Representative (RPR)

A person subject to a DOL is entitled to a Relevant Persons Representative this can be an appropriate person that they know or a paid RPR this is a decision made by the supervisory body. An IMCA can be nominated if there is a delay in identifying an appropriate RPR or there is a need for the RPR to be replaced. This is called a S39C IMCA.

3.IMCA support for the person and their representative (S39 D IMCA)

The person who is subject to DOLS and / or their representative have the right to access an IMCA if they wish. The IMCA can provide information and support around the DOLS process and how to access a care review or the Court of Protection. This service is not available to a paid representative.

How to refer

All of these IMCA roles have to be instructed through the supervisory body (the local authority or PCT DOLS office). Anyone else who is aware that an IMCA is required should direct their concerns to the supervisory body DOLS office.

Phone : (0191) 281 8737 Fax: (0191) 2120300

e mail: information@skillsforpeople.org.uk

Post: The Advocacy Project Skills for People, Key House, Newcastle upon Tyne NE2 3AT