The Mental Capacity Act 2005
The Mental Capacity Act 2005 is a comprehensive legal framework for decision making for people who lack capacity to make particular decisions for themselves.
It is accompanied by a Code of Practice and is based on common law and good practice. It puts the needs and wishes of the person at the centre of any decision making process.
Independent Mental Capacity Advocates (IMCA) support and represent people who are assessed to lack the capacity to make decisions about certain prescribed decisions on their behalf, where they have no family or friends, who are otherwise willing, available and appropriate to consult with about those decisions.
- When a Local Authority or NHS body (whomever has funding responsibility) is proposing a change of accommodation for a period likely to be greater than 8 weeks (or a move to a hospital for a period likely to be greater than 28 days).
- When an NHS body is considering stopping, starting or withholding serious medical treatment (which is either a finely balanced judgement or likely to have serious consequences for the person).
If either of the above apply AND the person lacks the mental capacity to make the decision for themselves AND they have no friends or family who can otherwise be consulted, then there is a legal duty on the decision maker to instruct an IMCA to represent the person.
- independent of the person making the decision
- able to meet the person in private
- able to see all relevant health, social services and care home records
- able to request an additional medical opinion
- someone who has completed the national IMCA training
The decision maker is the person who has ultimate legal responsibility for making the best interest decision.
- When a responsible body is undertaking a care review about a person’s accommodation previously arranged by them
- When a responsible body is proposing to take or has already undertaken protective measures as a result of an adult safeguarding enquiry (this can apply to either the victim or the alleged perpetrator)
There are also further additional requirements which are:
- The person must lack the mental capacity to make the specific decision in question
- There must be clear benefit for the individual client to have IMCA representation
- The person has no friends or family who can otherwise be consulted (This does NOT apply to Adult Safeguarding decisions)
If the above applies, then the decision maker has a legal power (but not a duty) to instruct an IMCA to represent the person.
- supports and represents the person in the decision making process
- 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
- 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 the outcome of a capacity assessment) if necessary, informally first and through Court of Protection as a last resort
You can read more details about the mental capacity act and about the IMCA service (chapter 10) by clicking this link.
IMCA DOLS - Deprivation of Liberty Safeguards (DOLS)
Sometimes a vulnerable person who lacks capacity needs to be restricted in order to provide treatment or care which is necessary in their best interests to protect them from harm. The degree and level restrictions may amount to a deprivation of liberty (DOL).
Under certain circumstances, a DoLS IMCA can be instructed to act in a number of different ways. When there is no family member, friend or appropriate person, known as the Relevant Person's Representative (RPR), to support the relevant person (RP) through this process, the Supervising Body (SB) will appoint a DoLS IMCA. Once the application has been approved the SB can also instruct a DOLS IMCA either to support the RP, the RPR, both the RP and the RPR, or to act as the RPR themselves if no representative is available.
A DoLS IMCA is an Independent Mental Capacity Advocate (IMCA) who has obtained or is working towards the additional Deprivation of Liberty Qualification applicable to their role.
Section 39a DoLS IMCA
Supporting and representing a person who lacks capacity and who has no other friends or family who can otherwise be consulted during a deprivation of liberty assessment process.
Section 39c DoLS IMCA
To act, after the authorisation has been granted, as the RPR (where the original RPR is no longer available and a subsequent RPR has yet to be appointed). A 39c IMCA can be instructed to provide temporary cover for the absent RPR, fulfilling all of their duties on an interim basis, whilst alternative arrangements are made by the supervisory body to appoint another RPR.
Section 39D DoLS IMCA
A person subject to a deprivation of liberty authorisation, or their unpaid RPR can gain support from a 39d DoLS IMCA in order to help them understand paperwork, call a review or mount an appeal. The supervisory body can also make a request for an IMCA 39d where they think either or both parties will benefit from the assistance of a 39d IMCA.
A DOLS IMCA has all of the usual duties applicable to an Independent Mental Capacity Advocate but with specific additional duties which are dependent on the type of IMCA DoLS role they have been instructed to fulfil.
For further details please refer to The Deprivation of Liberty Code of Practice can be found here.
ONLY a Supervisory Body can make a direct referral to the IMCA service to instruct a DoLS IMCA. Managing Authorities (Care Homes and Hospitals) should direct all DoLS related requests or queries to the relevant Supervisory Body DoLS Office.