The Mental Capacity Act (MCA) requires doctors to involve an independent mental capacity advocate (IMCA) for serious medical treatment decisions when:
- a best interests decision is required because the doctor has assessed the person as not having the capacity to make the decision themselves
- the person does not have family or friends with whom it is ‘appropriate to consult’ about the decision.
- Serious medical treatment is defined in the Mental Capacity Act 2005 (Independent Mental Capacity Advocates) (General) Regulations 2006 as treatment which involves providing, withdrawing or withholding treatment in circumstances where one or more of the following apply:
- in a case where a single treatment is being proposed, there is a fine balance between its benefits to the patient and the burdens and risks it is likely to entail for them
- in a case where there is a choice of treatments, a decision as to which one to use is finely balanced
- what is proposed would be likely to involve serious consequences for the patient.
- The MCA Code of Practice says that ‘serious consequences’ may include treatment options which:
- cause serious and prolonged pain, distress or side effects
- have potentially major consequences for the patient (for example, major surgery or stopping life-sustaining treatment)
- have a serious impact on the patient’s future life choices.
The Code of Practice lists the following examples of possible serious medical treatments:
- electro-convulsive therapy
- therapeutic sterilisation
- major surgery (such as open-heart surgery or brain/neurosurgery)
- major amputations (for example, loss of an arm or leg)
- treatments that will result in permanent loss of hearing or sight
- withholding or stopping artificial nutrition and hydration
- termination of pregnancy.
Any decision not to offer the above treatments would similarly require the involvement of an IMCA.
What about emergency treatment?
The only situation in which the duty under the Act to instruct an IMCA need not be followed is when an urgent decision is needed, for example, to save a person’s life. However, if further serious treatment follows an emergency situation, there will be a need to instruct an IMCA.
Is an IMCA required if the person is being treated under the Mental Health Act?
Responsible bodies do not have to instruct an IMCA for patients detained under the Mental Health Act 1983, if:
- the treatment is for mental disorder
- they can give it without the patient’s consent under that Act.
If serious medical treatment proposed for the detained patient is not for their mental disorder, the patient then has a right to an IMCA – as long as they meet the MCA’s requirements. So a detained patient without the capacity to consent to cancer treatment, for example, should qualify for an IMCA if they do not have any family or friends with whom it would be appropriate to consult.
Who should involve the IMCA?
A representative of the NHS body that is considering the treatment options or is arranging the treatment must instruct the IMCA.
NHS body is defined in regulations as either a strategic health authority; an NHS foundation trust; a primary care trust; an NHS trust; or a care trust.
The doctor making the decisions will usually instruct the IMCA by completing a referral form. There may also be local arrangements that allow other medical staff to make the referral.
What will the IMCA do?
The IMCA supports and represents the person in the decision-making process. This will involve:
- speaking to the person themselves where possible
- speaking to the doctor and other medical staff about the proposed treatment
- looking at relevant health records (IMCAs have a statutory right to access and take copies of these).
The IMCA is there to ensure that the person’s wishes and feelings have been considered and that the MCA is being followed.
The IMCA has a statutory right to ask for a second medical opinion. The IMCA is required to write a report which should be considered by the doctor before making their decision.
The Role Of The IMCA – Independent Mental Capacity Advocate
What are the doctor’s statutory obligations?
Where a doctor is making what could be regarded as a serious medical treatment decision for someone who lacks the capacity to make that decision themselves and where there are no family or friends with whom it is appropriate to consult, the MCA imposes the following duties on doctors:
- to make sure an IMCA has been instructed
- to provide access to relevant health records
- to have regard to any issues and concerns raised by the IMCA, including those included in the IMCA’s report.
Key resources for medical decisions
- Decisions relating to cardiopulmonary resuscitation, A joint statement from the British Medical Association, the Resuscitation Council(UK)and the Royal College of Nursing October 2007 (external website)
- National End of Life Care Programme IMCA factsheet (PDF file)
- Statutory Advocacy Services: BMA guidance for professionals in England and Wales (external website)
- Withholding and Withdrawing Life-Prolonging Medical Treatment (Third Edition), British Medical Association (2007), Print ISBN: 9781405159579 Online ISBN: 9780470757994.