Independent Mental Capacity Advocacy was introduced as part of the Mental Capacity Act 2005. This gives people who have an impairment, injury or a disability which results in them being unable to make a specific decision for themselves, the right to independent support and representation.
Who is eligible for the service?
Under the Mental Capacity Act (2005) your Local Authority or the NHS Decision maker MUST refer you for IMCA if you have no ‘appropriate’ family and friends who can be consulted and you have been assessed as lacking the capacity to make a decision about:
- Any serious medical treatments
- A move to a hospital that would be for more than 28 days
- A move to a Care Home that would be for more than 8 weeks
- Your safety or care which is likely to result in you being deprived of your liberty.
In addition, your local council, or the NHS decision maker MAY refer you if you lack the capacity to make a decision about either:
- A Care review (if you have no ‘appropriate’ family or friends)
- A Safeguarding referral (whether you are the victim or alleged perpetrator, regardless of whether you have family and friends)
Find out more about the work of IMCAs on the Social Care Institute for Excellence website.
What is the role of an Independent Mental Capacity Advocate?
IMCA’s have specialist knowledge of the Mental Capacity Act and have skills to support people who are unable to communicate or find it very hard to express themselves.
The role of an IMCA is to:
- Talk to you and the people you are close to, and professionals who care for you, to find out about your views, wishes and feelings about the decision
- Communicate your views, wishes and feelings to decision makers
- Provide information to you and to the decision makers to help work out what is in your best interests
IMCA’s will check whether decision makers are:
- Applying the principles of the Mental Capacity Act;
- Acting in the person’s best interests;
- Choosing the least restrictive option for the person.
An IMCA can challenge decisions made by the decision maker, including the capacity assessment itself.
IMCA’s are allowed to meet with you in private and can ask to see all relevant health, social services and home care records.
The Mental Capacity Act 2005 (Independent Mental Capacity Advocates) (General) Regulations 2006set out the IMCA’s role and functions. These are grouped below into four areas.
1. Gathering information
- Meet and interview the person (in private if possible).
- Examine relevant health and social care records.
- Get the views of professionals and paid workers.
- Get the views of anybody else who can give information about the wishes and feelings, beliefs or values of the person.
- Find out other information which may be relevant to the decision.
2. Evaluating information
- Check that the person has been supported to be involved in the decision.
- Try to work out what the person’s wishes and feelings would be if they had the capacity to make the decision and what values and beliefs would influence this.
- Make sure that different options have been considered.
- Decide whether to ask for a second medical opinion where it is a serious medical treatment decision.
3. Making representations
IMCAs should raise any issues and concerns with the decision maker. This could be done verbally or in writing. IMCAs are required to produce a report for the person who instructed them. In most cases, this should be provided to the decision maker before the decision is made.
People who instruct IMCAs must pay attention to any issues raised by the IMCA in making their decision.
4. Challenging decisions
In many cases, IMCAs will be able to resolve any concerns they have with the decision maker before the decision is made. Where this has not been possible IMCAs may formally challenge the decision-making process. They can use local complaint procedures or try to get the matter looked at by the Court of Protection.
Deprivation of Liberty Safeguards
IMCAs must be instructed for people who are being assessed as to whether they are currently being, or should be deprived of their liberty, where there is no-one “appropriate to consult”
IMCAs must also be made available to people who are subject to a standard authorisation in the following circumstances:
- To fill gaps between appointments of person’s representatives
- If a person has an unpaid representative, when requested by the person, their representative, or if the Supervisory Body believes either could benefit from the support of an IMCA.
Who can refer people to the IMCA service?
It is the decision-makers legal responsibility to decide if the person meets the criteria and to make the referral. The decision maker should be NHS or local authority staff deciding whether to take action with the treatment or care of an adult who lacks capacity e.g. a Doctor for medical treatment and a Care Manager for a long-term move.
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. Also, if the decision maker is not readily available to complete the referral form, we can take a referral from another professional. However, in both situations, we will need to contact the decision-maker to authorise the instruction of an IMCA before we provide a service.
To make a referral to our IMCA service, please complete and return our referral form either by email: email@example.com or post to; Healthwatch Halton Advocacy HUB, St Marie’s, Lugsdale Road, Widnes, Cheshire, WA8 6DB
IMCA referral form (word)
IMCA referral form (PDF)
If you need further information or support, call our Freephone: 0800 161 5600 (Lines are open between 9 am and 5 pm Monday to Friday. An answerphone operates outside of these times.)
We will acknowledge receipt of IMCA referrals within 24 hours of receipt.
Consultation about a person’s best interests shall include anyone:
- Named by the person as someone to be consulted on a relevant decision
- Engaged in caring for them, and who are unpaid for doing so, or
- Interested in their welfare
If it is not possible, practical and appropriate to consult anyone, an IMCA should be instructed.
A person who lacks capacity may have family or friends, but it is not practical or appropriate to consult them. For example:
- An elderly person who lacks capacity may have an adult child who now lives abroad
- An older person may have relatives who very rarely visit
- Family member may simply refuse to be consulted.
In such cases, decision-makers must instruct an IMCA when decisions need to be made about serious medical treatment and care moves and the reason for the decision must be recorded.
The person who lacks capacity may have friends or neighbours who know their wishes and feelings but are unwilling or unable to help with the specific decision to be made. In this situation, the responsible body should instruct an IMCA, and the IMCA may visit them and enable them to be involved more informally.
If a family disagrees with a decision maker’s proposed action, this is not grounds for concluding that there is nobody whose views are relevant to the decision.
In Summary, in the following situations a referral should be made:
- The family member or friend is unwilling or unable to be consulted about the best interest decision.
- There are reasons which make it impractical to consult with the family member or friend e.g. they live too far away.
- Anyone named by the person to be consulted feels that they do not know the person well enough to be involved.
- There is intense conflict within the family, or with family and professionals disagreeing with the proposed course of action.
- There are allegations, suspicions or proved incidences of abuse by the family member or friend.
- The family member or friend is unwilling to involve the person whom the decision is about in the decision-making process.
If none of the above criteria apply, the person cannot be referred to the IMCA service.
- Making decisions: The Independent Mental Capacity Advocate (IMCA) service:gov.uk/government/uploads/system/uploads/attachment_data/file/365629/making-decisions-opg606-1207.pdf
- Mental Capacity Act 2005 Code of Practice: gov.uk/government/publications/mental-capacity-act-code-of-practice