IMCA resource - what's new
The Neary Judgement on Deprivation of Liberty
10 June 2011
This is a very important judgement from the Court of Protection. It is advised that all IMCAs take time to read and discuss it with colleagues.
Justice Peter Jackson found that Steven Neary was unlawfully deprived of his liberty when Hillingdon decided he was not to live with his father against both of their wishes. This is not surprising, nor is the judge’s criticism of the local authority for wrongly using the Deprivation of Liberty Safeguards to settle a dispute about where Steven Neary should live and to limit contact with his family. Hillingdon should have made an early application to the Court of Protection for decisions on these matters.
The judge suggests in the final paragraph that public bodies have a responsibility to enable people to have their detention reviewed in a court. One aspect of Hillingdon’s failure was not to promptly instruct a section 39D IMCA. The IMCA that was eventually instructed was complemented for providing “the first best interests assessment that deserves the name” (155).
There was strong criticism of the actual best interests assessments that had been undertaken. This included failing to represent the views of Steven Neary or his father and specifically addressing whether living at home was a less restrictive option which could have avoided deprivation of liberty. Critically the judge said that supervisory bodies have a responsibility to ensure assessments are of a satisfactory quality and are not required to accept assessments which are deficit. IMCAs should now make representations to supervisory bodies where they believe an assessment has not been given the appropriate attention.
The initial response by the IMCA provider when the local authority tried to make an instruction was to ‘refuse’ to provide a service. Whilst the judge said that the local authority should have persisted in making the instruction, this does draw attention to the IMCA provider’s responsibility. Providing at IMCA when first contacted may have brought an early end to Steven Neary’s unlawful deprivation of Liberty.
Research on the difference IMCAs make
08 April 2011
The Norah Fry Research Centre was commissioned by SCIE to undertake research looking at the difference IMCAs made to the outcomes of the people they represent. It also looked at the difference the IMCA service made to the practice of health and social care staff. The outcomes used in the research have informed the revised ADASS / SCIE IMCA commissioning guidance.
Local authority decision to move a man with autism found unlawful
11 April 2011
The parents of a man with Autism challenged Croydon council’s decision to move him from a specialist service to supported living. They asked for a judicial review of the decision. The judge rule that the local authority had not consulted appropriately with either his parents or the service where he currently resided.
Link: Full judgement.
Research on the difference IMCAs make
08 April 2011
The Norah Fry Research Centre was commissioned by SCIE to undertake research looking at the difference IMCAs made to the outcomes of the people they represent. It also looked at the difference the IMCA service made to the practice of health and social care staff. The outcomes used in the research have informed the revised ADASS / SCIE IMCA commissioning guidance.
New films about the MCA on Social Care TV
01 April 2011
SCIE has launched four new Social Care TV films about the Mental Capacity Act:
- Roger’s assessment - a capacity assessment of a person with learning disabilities for financial decisions
- Ada’s assessment - a capacity assessment of a woman with dementia’s ability to decide where she lives
- Peter’s IMCA - shows the IMCA role and the importance of carers feeding into best interests decisions
- Lucy’s treatment - looks at when restraint may be used to give treatment against a person’s wishes.
See all MCA films on Social Care TV.
Report on Deprivation of Liberty Safeguards published by CQC
17 March 2011
The Care Quality Commission has published its first monitoring report on the implementation of the Deprivation of Liberty Safeguards,
Cynthia Bower, CQC’s chief executive, said: “This was the first year of implementation of the safeguards, and all the organisations involved were feeling their way to an extent. But it is essential for those who need this protection that we all learn very quickly and make sure the safeguards are implemented fully throughout the country.”
Link: The operation of the Deprivation of Liberty Safeguards in England, 2009/10
Training for IMCAs on supporting people with Dementia
08 March 2011
The Dementia Advocacy Network is putting on a day’s training in Leeds on the 24th March 2011. For more information contact: dan@advocacyplus.org.uk, tel. 020 7923 6000, www.advocacyplus.org.uk/dan
MIG and MEG - now P & Q - appeal judgement
02 March 2011
This case involved two young women with learning disabilities, one living in an adult placement, the other in supported living. The original judgement that neither were being deprived of their liberty was appealed. The appeal agreed with the original judgement. It is an important ruling which will help practioners decide when there may a deprivation of liberty. It importantly reinforces the need to separate the decision as to whether there is a deprivation of liberty from the reasons why restrictions may be in a person’s best interests.
Link: P & Q - appeal judgement case
Action for Advocacy guidance on IMCAs and serious medical treatment decisions
03 February 2011
This guidance for healthcare professionals and IMCA has been published. Alongside this there is:
- A checklist to assist healthcare professionals to determine when IMCA must be involved
- A leaflet for healthcare professionals to explain the role of IMCA in SMT decisions and how to instruct
- Decision specific guidance on DNAR, PEG feeding, chemotherapy, end of life care, dental treatment and ECT
Link: Action for Advocacy SMT resources
New judgement on capacity to consent to sexual relationships
01 February 2011
This suggests that the capacity for an adult to consent to sexual relationships may be limited to:
- The mechanics of the act
- That there are health risks involved, particularly the acquisition of sexually transmitted and sexually transmissible infections
- That sex between a man and a woman may result in the woman becoming pregnant
Link: Full judgement.
Amendments to Mental Capacity Act via the Health and Social Care Bill
25 January 2011
There are two significant proposed amendments to the Mental Capacity Act particularly relevant to IMCA services. The first is that the responsibility for ensuring that IMCA are available when required will transfer from the Secretary of State to the local authority in the area. This clarifies their requirement to commission IMCA services and supports the practice of the local IMCA service providing the service regardless of funding authority.
The second is proposes that if PCT are abolished the supervisory body function will be the responsibility of the local authority where the person is ordinarily resident regardless of whether the Deprivation of Liberty takes place in a care home or hospital.
Link These are contained in Schedule 5 of the Bill.
Reporting the death of a person subject to an authorisation under the MCA DOLS
25 January 2011
The Department of Health, in conjunction with the Ministry of Justice, has clarified the requirements on managing authorities, care homes and hospitals, to report to the relevant coroner the death of a person subject to an authorisation.
MCA & DOLS community of practice
25 January 2011
The Department of Health has supported the launch of a new interactive website. It aims to be a national community to share information, good practice, policies and procedures related to the Mental Capacity Act and Deprivation of Liberty Safeguards.
Link: Click here to join the community of practice.
Revised IMCA commissioning guidance
23 December 2010
The main changes to the version published last year are:
It is now a joint ADASS / SCOE publication.
There is an acknowledgement of the challenging funding climate.
Suggesting that work undertaken by IMCAs who have not completed the relevant units of the advocacy qualification is supervised by an IMCA or manager who has.
Alerting commissioners of the availability of an IMCA service review for the advocacy quality performance mark.
Identifying the difference the IMCA service has made (either the person or the practice of health and social care staff) as a potential indicator of quality. The outcome framework used for the Norah Fry research is included in an appendix.
Plans for IMHAs to be commissioned by local authorities
15 December 2010
Liberating the NHS: Legislative framework and next steps has been published. Amongst the proposals paragraph 2.53 says:
"Responsibility for commissioning independent mental health advocacy under the Mental Health Act will also move from PCTs to local authorities, together with the role of the supervisory body in respect of hospitals under the Mental Capacity Act deprivation of liberty safeguards."
IMCA accommodation and care review guide
09 December 2010
This guide is jointly published by ADASS and SCIE. There are two versions, web based format and a PDF file.
Link: IMCA accommodation and care review guide
Public Guardian Board annual report published
09 December 2010
This report has just been produced. The recommendations include having a champion for the Mental Capacity Act. Regarding IMCAs it says:
“The Board has attended IMCA network meetings across England and Wales and has been impressed by the skilled and independent service they offer. We regard this as a resource that is under-recognised and utilised and suggest that consideration is given to extending the use and role of IMCAs.
- External link: Public Guardian Board Annual Report 2010
SCIE training courses for IMCA’s
02 December 2010
Two course for IMCA’s will be run at the beginning of 2011. These are:
24th and 25th February 2011. The IMCA roles in DOLS: training to support unit 310 of the qualification in independent advocacy. This course cost £120. Participants will need to make their own arrangements for registration and assessment.
18th March 2011 The IMCA role in safeguarding adults. This course is free.
Both course will take place at SCIE’s offices in central London. To reserve a place or for more information please contact David.Thompson@scie.org.uk or 02070896864.
IMCA contact details updated
02 December 2010
The contact details for all IMCA providers in England and Wales have been updated. They can be found on both the Department of Health’s website and SCIE’s IMCA pages. If any amendments are needed please send these to Catherine.Plewa@scie.org.uk
Third year report of the IMCA service published
18 November 2010
This in now available on the Department of Health’s Mental Capacity web pages
Revised Guidance on direct payments, for community care, services for carers and children’s services
8 November 2010
This document first published by the Department of Health was revised on the 29th October 2010. There is more information about the options of direct payments for people who may lack capacity to manage one.
- External link: Guidance on direct payments For community care, services for carers and children’s services (PDF)
Ministry of Justice review of the MCA
3 November 2010
The Ministry of Justice has published a post-legislative Assessment of the Mental Capacity Act 2005. This provides a very clear review on the progress in implementing the MCA.
- External link: Assessment of the Mental Capacity Act 2005 (PDF)
CQC guidance on the Mental Capacity Act
25 October 2010
The Care Quality Commission has produced guidance on compliance with the Mental Capacity Act. It includes information about what evidence it may look for and reminds providers of the requirement to alert CQC of any applications for deprivation of liberty.
- External link: CQC Mental Capacity Act guidance
Court of Protection decisions on Bailii website
21 October 2010
The British and Irish Legal Information Institute has just added a section for Court of Protection decisions.
- External link: Bailii website
It includes the final judgement in the G v E case where Manchester was found to have deprived a young man with learning disabilities of his liberty, firstly in a care home then in a supported living service.
- External link: G vE interim judgement
- External link: G v E final judgement
The judge’s final decision was for the man to return to the home from which he was removed by the local authority. This final judgement is also significant because it rejects applications for the appointments of both health and welfare, and property and affairs deputies on the grounds that they were not required. This may have implications for the Court’s future decisions about the appointment of deputies.
MIG & MEG [2010] EWHC 785 (Fam)
21 October 2010
This case involves two young women who were supported in two different settings: one a foster placement and the other a care home. The judge’s decision was that neither was being deprived of their liberty. This is an important case because while the judge said it was permissible to look at the “reasons” why both were living where they were in deciding whether there was a deprivation of liberty. The case is being appealed.
- External link: MIG & MEG [2010] EWHC 785 (Fam) judgement (PDF).
Six lives progress report
21 October 2010
The Department of Health has published a report on progress to improve healthcare for people with learning disabilities. This follows on from a major investigation into the avoidable deaths of people with learning disabilities. One of the major concerns was a failure for health care services to comply with the Mental Capacity Act and its Code of Practice.
- External link: “Six Lives” Progress Report (PDF)
- External link: “Six Lives” Progress Report - Easy Read version (PDF)
Information about mental capacity and housing options
08 October 2010
The Valuing People Now team promotes greater housing choices for people with learning disabilities. It has published a guide which looks at capacity to enter a tenancy and take out a mortgage. There is also a new guide for family carers about the possibility of becoming deputies.
- External link: Valuing People Now housing documents
A guide for advocates supporting people with learning disabilities who are described as having challenging behaviour
01 October 2010
This is a very practical guide providing key information about best practice in supporting people with challenging behaviour. It is available from the Challenging Behaviour Foundation.
IMCAs may find it particularly helpful when involved in accommodation decisions or care reviews for people who are described as challenging. For example, provides very helpful checklists of questions to ask.
Deprivation of liberty authorised in an independent living service
20 September 2010
The judgement was that it was in the best interests of a young man to live in supported living against both his expressed wishes and those of his long term carer. The outcome was viewed as a deprivation of liberty which was accordingly authorised by the Court. A review process for the deprivation of liberty was set by the judge.
Tenancy rights in supported living
10 September 2010
The National Development Team for Inclusion has just published a series of reports to support good practice in supported living for people with learning disabilities. They include ‘The real tenancy test’. This sets out important things to consider when planning housing and tenancies for people, including when to use different types of tenancies and how to handle issues of capacity.
- External link: The Real Tenancy Test: Full report (PDF file)
- External link: The Real Tenancy Test: Plain English summary (PDF file)
- External link: Supported Living – Making the Move: full report (PDF file)
- External link: Supported Living – Making the Move: Plain English summary (PDF file)
Applications to become Panel Deputies
9 August 2010
The Office of the Public Guardian is seeking applications to become panel deputies. They are particularly keen to extend to the diversity of panel deputies, most of whom are currently solicitors. As such they are keen to have applications from third sector organisations including advocacy providers.
For more information see the Office of the Public Guardian website.
DOLS training course for IMCAs
30 July 2010
SCIE is running a 2 day course for IMCAs to understand their roles in the Deprivation of Liberty Safeguards. This will take place in Leeds on the 22 - 23 September in Leeds. Participants will need to be registered with an approved provider of the national advocacy qualification.
for further details contact David Thompson, Senior Practice Development Manager: Mental Capacity, SCIE David.Thompson@scie.org.uk 02070896864
DOLS First annual report published
29 July 2010
These figures cover the period until 31 March 2010. Included in the tables are the numbers of authorisations requested and granted for each local authority and PCT.
- External link: Mental Capacity Act 2005, Deprivation of Liberty Safeguards Assessments (England) - First report on annual data, 2009/10
Action for Advocacy IMCA guides
21 July 2010
Action for Advocacy have published to good practice guides for the IMCA service. They have been written by the IMCA support project managers: Sue Lee and Jackie Cowley. Both documents are endorsed by the Association of Directors of Adult Social Services.
- Action for Advocacy instruction guide (PDF file)
- Action for Advocacy report writing guide (PDF file)
Mental Health Alliance issues first review of Deprivation of Liberty Safeguards
14 July 2010
The Mental Health Alliance is a coalition of 75 organisations working together to secure a better mental health legislation. The key recommendations in the report are:
- The Government needs to look at why so few applications have been made compared to levels expected and why there are such disparities between supervisory bodies and geographical areas.
- The Government should issue revised guidance on the meaning of deprivation of liberty which is comprehensible to care providers, and especially to care home staff.
- Refresher training for assessors should focus on improving their knowledge of the legal requirements and should emphasise the importance of full compliance with them.
- Where a friend or family member is selected as representative, the appointment of a section 39D IMCA should be automatic unless the representative positively declines it.
- External link: Deprivation of Liberty Safeguards: an initial review of implementation (PDF file) is available on the Mental Health Alliance’s website.
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