The Independent Mental Capacity Advocate

The Mental Capacity Act Code of Practice sets out the things that an IMCA should do in order to represent and support the person who lacks capacity. They:

1. Must confirm that the person instructing them has the authority to do so;
2. Wherever possible, should interview or meet with the person who lacks capacity in private;
3. Must act in accordance with all statutory principles of the Mental Capacity Act at all times;
4. May examine relevant records that the Act permits them access to;
5. Should get the views of professionals or paid carers providing care or treatment to the person who lacks capacity;
6. Should get the views of anyone who is able to give information about the wishes, beliefs or values of the person who lacks capacity;
7. Should gather any other information that they consider relevant or necessary;
8. Must find out what support the person who lacks capacity has had to help them make the decision for themselves;
9. Must try to find out what the person's wishes and feelings, beliefs and values would be likely to be;
10. Should find out what alternative options there are;
11. Should consider whether getting a second medical opinion would help the person who lacks capacity; and
12. Write a report on their findings for the Decision Maker.

Some of these functions are described in further detail below:

Establishing what practicable steps have been taken

The IMCA must:

1. Find out what steps the Local Authority or ICB has taken to support the person to make their own decision; and
2. Decide whether the steps that were taken were appropriate.

Through the process of doing this the IMCA may:

1. Identify further steps that can be taken; or
2. Reach a view that the person may regain capacity in the future.

In either case the IMCA can ask the Decision Maker to delay making the decision and, if the decision is not urgent the Decision Maker must consider doing so.

Finding and evaluating information

To gather information the IMCA should consider the need to:

1. Meet with the person in private;
2. Meet with professionals;
3. Meet with paid carers;
4. Examine copies of relevant health and social care records;
5. Examine and take copies or relevant care plans and treatment plans.

When meeting with others the IMCA should:

1. Seek to understand the information available within records and its relevance to the decision;
2. Establish the possible impact/s of the decision on the person; and
3. Identify whether there are alternative, less restrictive options that need to be considered.

The IMCA should make recommendations to the Decision Maker based on their findings, which must be considered.

Ascertaining the person’s wishes and feelings, beliefs and values

So far as is possible, the IMCA should try to find out what the person’s wishes and feelings are and what their underlying values and beliefs might be

Recommending alternative options

Specifically the IMCA must be satisfied that:

1. The Decision Maker has considered all of the potential options; and
2. That the preferred option is the least restrictive of the person's rights and freedom of action.

The IMCA may discuss a range of options with those persons who they consult, but must respect the confidentiality of the person they represent at all times.

Getting a second medical opinion

For decisions about serious medical treatment the IMCA may decide that a second medical opinion is required. A request from an IMCA for a second opinion should be treated in the same manner as a request made by the person for a second opinion.

In their role to support and represent the person who lacks capacity, the IMCA may find they need to:

1. Ask questions;
2. Raise issues;
3. Offer information; and
4. Challenge the views and decisions of others.

The Decision Maker does not have to make a decision that reflects the views of the IMCA but they must consider everything that the IMCA has to say.

If an IMCA does not believe that the Decision Maker has considered their views they may then need to challenge the decision. The local authority or NHS body may have a specific dispute resolution procedure for IMCAs. It may also be possible to resolve the dispute through negotiation. If not, the IMCA can use the formal complaints procedure.

Under section 37 of the Mental Capacity Act an IMCA must be made available before treatment is provided when:

1. An NHS body is proposing to provide (or arrange) serious medical treatment for a person who lacks capacity to consent to it; and
2. There is no person with a Lasting Power of Attorney or a Deputy appointed by the Court of Protection authorised to make decisions about the specific medical treatment required; and
3. The NHS body is satisfied that there is no other person that it would be appropriate to consult in determining what would be in the person's Best Interests.

The requirement to provide an IMCA does not apply where the:

1. Treatment is regulated by part 4 or 4A of the Mental Health Act 1983; or
2. Where the serious medical treatment is needed as a matter of urgency, it may be provided before the IMCA is appointed.

Serious medical treatment is described in the Mental Capacity Act Code of Practice as the starting, stopping or withholding of treatment when:

1. The choice of treatment is finely balanced; and/or
2. The likely benefits and burdens of the treatment are finely balanced; and/or
3. There are likely to be serious consequences to the person.

Serious consequences include:

1. Prolonged pain;
2. Distress;
3. The effect of stopping life sustaining treatment;
4. Treatment that may have lifelong consequences (for example, infertility).

Examples of treatments that are normally considered serious include:

1. Chemotherapy and surgery for cancer;
2. Electro-convulsive therapy;
3. Therapeutic sterilisation;
4. Major surgery (for example open heart surgery);
5. Major amputations;
6. Treatments that will result in permanent loss of sight or hearing;
7. Termination of pregnancy; and
8. Withholding or withdrawing artificial hydration and nutrition.

Whether or not a treatment (or the consequences of the treatment) are considered 'serious' will vary depending on the specific circumstances of each person. The views of the person, and the views of any carers about whether or not something is 'serious' for them must be considered when decision whether it is so.

Under section 38 of the Mental Capacity Act whenever the NHS is responsible for providing and making arrangements to meet a person's accommodation needs an IMCA must be appointed before any decision is made when it is

proposing to arrange for the person to be accommodated in a hospital or care home on a long-term basis setting for the first time or

to move a person from one hospital or care home to another when:

1. The person lacks capacity to consent;
2. There is no person with a Lasting Power of Attorney or Deputy authorised to make decisions about accommodation; and
3. The NHS body is satisfied that there is no other person that it would be appropriate to consult in determining what would be in the person's Best Interests.

This does not apply where:

1. The accommodation is required as a matter of urgency;
2. The accommodation in a hospital is likely to be for less than 28 days;
3. The accommodation in a care home is likely to be for less than 8 weeks;
4. A process to authorise a Deprivation of Liberty Safeguard (DoLS) in respect of the proposed accommodation is already underway (in which case an IMCA will be appointed under section 39A or 39C);
5. There is already a Deprivation of Liberty Safeguard (DoLS) in place in respect of the proposed placement; or
6. The person is to be accommodated to enable treatment to be given under the Mental Health Act 1983.

If any of the above circumstances change the NHS body must arrange for an IMCA to be appointed.

Under section 39 of the Mental Capacity Act whenever the Local Authority is responsible for providing and making arrangements to meet a person's eligible needs an IMCA must be appointed before any decision is made when it is

proposing to arrange for the person to be accommodated in a care home setting for the first time or

to move a person from one care home to another when:

1. The person lacks capacity to consent; and
2. There is no person with a Lasting Power of Attorney or Deputy authorised to make decisions about accommodation;
3. The Local Authority is satisfied that there is no other person that it would be appropriate to consult in determining what would be in the person's Best Interests.

This does not apply where:

1. The accommodation is required as a matter of urgency;
2. The accommodation is likely to be required for less than 8 weeks;
3. A process to authorise a Deprivation of Liberty Safeguard (DoLS) in respect of the proposed accommodation is already underway (in which case an IMCA will be appointed under section 39A or 39C);
4. There is already a Deprivation of Liberty Safeguard (DoLS) in place in respect of the proposed placement; or
5. The person is to be accommodated to enable treatment to be given under the Mental Health Act 1983.

If any of the above circumstances change the Local Authority must arrange for an IMCA to be appointed.

Upon making a request for a deprivation of liberty to be authorised through the DoLS, the care home or hospital (the 'managing authority') making the application to the Local Authority (the 'supervisory body') must:

1. Establish whether there is an appropriate person who it would be appropriate to consult in determining what would be in the person's Best Interests; and
2. If there is no appropriate person, notify the Local Authority of this.

If the Local Authority receives notification that there is no appropriate person to represent the person they must instruct an Independent Mental Capacity Advocate before conducting any of the assessments, either:

1. As part of the authorisation of a standard DoLS (unless it is a renewal of an existing standard authorisation); or
2. Following the authorisation of an urgent DoLS to support the process of deciding whether a standard DoLS is required when the urgent DoLS expires.

If an IMCA is required, a standard DoLS authorisation cannot be made until an IMCA has been appointed and carried out relevant functions to support and represent the person.

When the duty to appoint an IMCA under section 39A and 39B does not apply

An IMCA does not have to be appointed is where:

1. A Deputy appointed by the Court of Protection has the power to make decisions in relation to DoLS; or
2. A person with a Lasting Power of Attorney has the authority to make decisions in relation to DoLS; or

The person has nominated a person who they wish to be consulted on such matters.

An IMCA must be appointed under section 39C whenever:

1. A standard DoLS authorisation is granted or renewed; and
2. The role of the IMCA during the DoLS process ends; and
3. The person does not have a Relevant Person's Representative (RPR); and
4. The care home or hospital establishes that there is no person that it would be appropriate to consult in determining what would be in the person's Best Interests.

If the Local Authority receives notification that there is no appropriate person to fulfil the role of the Relevant Person's Representative (RPR) it must instruct an IMCA as a Paid RPR until such time as an appropriate Relevant Person's Representative can be appointed.

When the duty to appoint a section 39C IMCA does not apply

An IMCA does not have to be appointed where:

1. A Deputy appointed by the Court of Protection has the power to make decisions in relation to DoLS; or
2. A person with a Lasting Power of Attorney has the authority to make decisions in relation to DoLS; or

The person has nominated a person who they wish to be consulted on such matters.

An IMCA must be appointed under section 39D whenever a standard authorisation is in place and the person is represented by a Relevant Person’s Representative (who is not a paid RPR) when:  

1. The person requests the appointment of an IMCA;
2. The RPR requests the appointment of an IMCA; or
3. The Local Authority (supervisory body) believes that:
   1. Without an IMCA either the person or the RPR will be unable to exercise one or more of their relevant rights; or
   2. Without an IMCA either the person or the RPR will be unlikely to exercise one of more of their relevant rights; or
   3. Either the person or the RPR has failed to exercise one or more of their relevant rights when it would have been reasonable to do so.

A key function of an IMCA appointed under section 39D is to support the person and the RPR to understand the important aspects of the authorisation. In particular they are expected to take reasonable steps to help the person and the RPR to understand:

1. The effect of the authorisation;
2. The purpose of the authorisation;
3. The duration of the authorisation;
4. Any conditions of the authorisation;
5. The reasons why each professional involved in carrying out assessments that resulted in the authorisation made the decisions that they did;
6. The relevant rights; and
7. How to exercise the relevant rights.

The IMCA must help the person or their RPR to take steps to exercise the relevant rights and the IMCA may give information or make submissions to any assessor carrying out a review.

When the duty to appoint a section 39D IMCA does not apply

The duty to appoint an IMCA under section 39D may not apply if the person is already receiving appropriate advocacy support or:

1. The person does not make a request to the Local Authority for an IMCA;
2. The RPR does not make a request to the Local Authority for an IMCA; and
3. The Local Authority is satisfied that the advocate in place is able to support the person and the RPR to understand and exercise their relevant rights.