Commissioning and monitoring of Independent Mental Capacity Advocate (IMCA) services
Disputed case costs
Where there is a dispute which cannot be resolved locally, the MCA Code of Practice expects the local authority or health trust with responsibility for the decision to make an application to the Court of Protection. The MCA Code of Practice also identifies that IMCAs may themselves need to make an application to apply to the Court of Protection or for judicial review. Ensuring IMCAservices have the resources to make applications is a key aspect of supporting the independence of the service.
IMCA services are not exempt from fees to access the Court. The current fees are £400 for an application and £500 for a hearing. IMCAservices may incur other costs for initiating or being an interested party in legal action.
A potential inhibitor for the IMCAservice to initiate legal action is the risk of the responsible body seeking to recover their costs from the IMCAservice.
The original estimate for the cost of the IMCAservice in England was £6.5 million. Of this it was expected that £0.5 million would be needed for disputed case costs. This could, for example, cover legal costs for the IMCAservice to take cases to the Court of Protection. The expected disputed case costs were included in the provisional estimates for the cost of the IMCAservice within the allocations to local authorities for MCA implementation – i.e. approximately 7.5 per cent of the suggested expenditure on IMCAservice for 2007/08 was for disputed case costs.
Disputed case costs were not identified as a distinct budget area in the original example service specification. When reviewing commissioning arrangements local authorities may wish to consider the following:
- Identifying a proportion of the IMCA funding to be set aside for the service to pay for any legal costs directly associated with the IMCArole.
- Making a contractual agreement that the local authority will not seek to recover costs from the IMCAprovider if legal action is taken involving the local authority.
- Seeking similar agreements from local health trusts.
