IMCA resource - who should get an IMCA?
An independent mental capacity advocate (IMCA) must be instructed (1) for people in the following circumstances
- The person is aged 16 or over (2)
- A decision needs to be made about either a long-term change in accommodation (3) or serious medical treatment (4),
- The person lacks capacity (5) to make that decision, and
- There is no one independent of services, such as a family member or friend, who is “appropriate to consult” (6).
An IMCA may (7) also be provided to people for other decisions concerning
In adult protection cases an IMCA may be instructed even where family members or others are available to be consulted.
Deprivation of Liberty Safeguards
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.
Note 1: IMCAs can only work with an individual once they have been instructed by an appropriate person/ body. For accommodation decisions and care reviews this is likely to be the local authority responsible for the arrangements. For serious medical treatment decisions this will be a medical practioner who has responsibility for the person’s treatment. For adult protection cases this will be the local authority coordinating the adult protection proceedings. For the IMCA roles in DOLS this will be the Supervisory Body.
Note 2: Most parts of the Mental Capacity Act apply to people aged 16 and over. This includes the provisions relating to IMCAs. Some parts of the MCA only apply to people over the age of 18. Examples include the ability to make a Lasting Power of Attorney and to be deprived of their liberty under the MCA.
Note 4: Serious medical treatment is defined in the MCA as treatment which involves giving new treatment, stopping treatment that has already started or withholding treatment that could be offered in circumstances where:
- if a single treatment is proposed there is a fine balance between the likely benefits and the burdens to the patient and the risks involved
- a decision between a choice of treatments is finely balanced, or
- what is proposed is likely to have serious consequences for the patient.
- They have an impairment or disturbance (for example, a disability, condition or trauma) that affects the way their mind or brain works, and
- The impairment or disturbance means that they are unable to make a specific decision at the time it needs to be made.
Note 6: IMCAs are primarily intended to be a safeguard for people who do not have family or friends who can represent them. The MCA identifies this as having no -one other than paid staff with whom "it would be appropriate to consult". The Code of Practice 10.74 - 10.78 provides more information about how this decision can be made. For example, if someone has limited family contact or if family live some distance away an IMCA can be instructed.
Note 7: Local authorities and NHS bodies need to consider in each case whether they will instruct an IMCA for these decisisons. This is set out in the Mental Capacity Act 2005 (Independent Mental Capacity Advocates) (Expansion of Role) Regulations 2006.
- they have arranged accommodation for that person
- they aim to review the arrangements (as part of a care plan or otherwise), and
- there are no family or friends who it would be appropriate to consult.
- the person who is alleged to have been abused or neglected
- a person who is alleged to have abused another person.
The local authority must be thinking about, or already taken protective measures for the person. In adult protection cases access to IMCAs is not restricted to people who have no-one independent of services who can represent them. People who lack capacity who have family and friends can still have an IMCA to support them in the adult protection procedures.
Note 10: The Deprivation of Liberty Safeguards are an amendment to the Mental Capacity Act. They were implemented in April 2009. For more information see the Department of Health' DOLS web pages.