The Mental Capacity Act provides a legal framework to empower and protect people aged 16 years or over who are assessed as lacking capacity to make a specific decision.
The role of the Independent Mental Capacity Advocate (IMCA) was introduced as part of this legal framework.
There are two differing roles for the IMCA:
1. The original role introduced and operational since 2007.
- Make representations about the person’s wishes, feelings, beliefs and values in relation to the decision being made.
- Enable the person to participate as fully as possible in the decision making process.
- Obtain and evaluate information relevant to the decision.
- Ascertain alternative courses of action that may be available.
- Obtain further medical opinion if necessary.
- Challenge decisions if appropriate.
- Produce a report commenting on the person’s best interests in relation to the decision.
2. The roles defined under the Deprivation of Liberty Safeguards (DoLS) which became operational in 2009.
The role of the IMCA is to inform the decision making process. The responsibility for the final decision made on behalf of the person who lacks capacity rests with the decision maker (health or social care professional) or, in the case of deprivation of liberty safeguards, the local authority.
Who can refer to the IMCA Service?
Referrals to the IMCA Service can be made by:
- The decision maker e.g. a social worker or doctor who has a legal responsibility to refer a client/patient to the service.
- The Supervisory Body e.g. a local authority referring a DoLS instruction.
Instructing an IMCA
People have a right to an IMCA if they:
Are facing decisions about Long Term Accommodation Moves and/or Serious Medical Treatment
Lack the capacity to make these decisions themselves
Have no appropriate family members or friends to consult with or to represent them.
(An IMCA cannot work with a person if the above three criteria are not met).
A local authority has the discretion to instruct an IMCA for the purposes of some Care Reviews and/or as part of an Adult Protection Process (Safeguarding Adults procedure) if the person is assessed as lacking capacity to make these decisions.
The Deprivation of Liberty Safeguards provide a legal framework and the right to appeal for vulnerable people who lack capacity to make specific decisions. This is a process that aims to ensure that the people who are subject to the Safeguards are not deprived of their liberty unless it is proven to be in their Best Interests.
The IMCA must be instructed if the relevant person is:
- Assessed as lacking capacity to make the decision themselves.
- Has no appropriate family member or friends to consult.
The Representative Role:
Once an authorisation for DoLS has been made, the Local Authority must appoint a representative to remain in contact with the person and represent them regarding DoLS authorisation. If a representative cannot be found, then a paid representative must be appointed and this can be an IMCA. An IMCA can also be appointed if there is a ‘gap’ while a representative is being found for the person.
In addition the person who is subject to the DoLS authorisation and/or their representative have a right to support from an IMCA if they wish. The IMCA will in these cases provide information and support around the DoLS process and the person’s rights. An IMCA is not available for paid representatives.
The IMCA Cannot:
- Replace a family member
- Sign documents on behalf of the person
- Make decisions of behalf of the person