Independent Mental Capacity Advocacy

The Mental Capacity Act 2005 places a responsibility on decision makers to ensure that people aged 16 or over who are considered to lack capacity have access to an Independent Mental Capacity Advocate (IMCA) when:

• An NHS body is providing, withdrawing or stopping serious medical treatment, including DNARs

• An NHS body or Local Authority is proposing a stay in a care home of more than 8 weeks

• A person will stay in hospital longer than 28 days

and

• the person has nobody else who is willing and able to represent them or be consulted in the process of working out their best interests, other than paid staff. NHS and local authority decision makers need to determine if there are family or friends who are willing and able to be consulted about the proposed decision. If not, an IMCA will support and represent the views of the person who lacks capacity to those who are considering their best interests in accordance with the MCA

The person’s capacity must be assessed in relation to the decision to be made at the time it needs to be made. Generic assessments of capacity are not sufficient. The Mental Capacity Act 2005 (MCA) says everyone has the right to make their own decisions and must be given all practicable help to do so before they are deemed as lacking capacity.

If the person is undergoing a care review or there is a safeguarding issue, there is now a statutory duty to refer under the Care Act 2014 – see factsheet ‘Independent Care Act Advocacy’.

An IMCA:

• Is a trained advocate who is independent of the person making the decision

• Supports the person who lacks capacity and represents their likely views to those responsible for making decisions. They are able to meet the person who the decision relates to in private to ascertain the person’s wishes and feelings, as far as is possible

• Obtains and evaluates information and has a right to see all relevant health, social services and care home records

• Can seek an additional medical opinion, if necessary

• Can recommend alternative courses of action such as different care arrangements

• Will write a report which outlines their findings on the likely views of the person, detailing how they arrived at their recommendations. Decision-makers have a responsibility to give full consideration to the contents of the report

• Has the right to appeal if they believe a decision has been made without due weight being given to their report

IMCAs do not have decision-making responsibility.

We recognise the need to provide a rapid response to referrals in order to avoid unnecessary delays to the decisions which need to be made, and will respond to all requests as quickly as possible.

Please note that an IMCA cannot be instructed if the person who lacks capacity:

• Requires immediate serious medical intervention, for example in life-threatening circumstances (a referral may still be made once the emergency has passed)

• Is undergoing treatment which is regulated by Part 4 of the Mental Health Act

• Requires accommodation urgently;

• Has restrictions placed on their accommodation under the Mental Health Act