Commissioning and monitoring of Independent Mental Capacity Advocate (IMCA) services
The process of instruction and withdrawal of instruction
The MCA and associated regulations set out that instructions can be made by local authority or health staff. The IMCA service is required to verify that the instruction was made by an authorised person. In checking whether the instruction was made by an authorised person the IMCA service is necessarily required to check that the reason for the instruction falls within the scope of the MCA. For example, if support is requested by a social worker to help a person decide what they do during the day, the requirement of an instruction by an authorised person has not been met.
It is suggested that the term authorised instruction is used to denote an IMCA instruction which falls within the scope of the MCA and has been made by an authorised person.
Once an authorised instruction has been made, different practice has emerged for situations where the IMCA service believes that the person is not eligible for the service – for example if they understand that there is someone appropriate to consult. This varies between the IMCA service not accepting the instruction, to the IMCA service raising the matter with the instructor and giving them the opportunity to consider withdrawing the instruction. To avoid any confusion it is suggested that it is written into the service specification that once instructed by an authorised person, the IMCA service must be provided unless the instruction is withdrawn by the authorised person.
Situations have also arisen where an authorised instruction is withdrawn but an IMCA service believes the person is both eligible for the service and would benefit from it. An example being the instructor reviewing their view as to whether the person has no one appropriate to consult.
To protect the independence of the IMCA role, it is suggested that the service specification allows for the possibility of the IMCA service to continue working with individuals where an authorised instruction has been withdrawn but only if there are concerns about an aspect of the decision-making process. For example, if instruction is withdrawn because the person has been assessed as having capacity to make the decision the IMCA was originally instructed for, an IMCA might continue working with the person if they were challenging that assessment of capacity. In such situations the IMCA would not retain their statutory rights to, for example, access relevant records or meet the person in private.
Good practice is for the IMCA to provide written confirmation to the instructor when they have concluded their work with an individual.
Different practice has emerged regarding the place of capacity assessments in the instruction process. There is a requirement in all IMCA instructions (apart from the 39A IMCA role) that the person has been assessed as lacking capacity for the matter in question.
Typically, IMCA providers remind potential instructors of the requirement for the person’s capacity to make the decision in question to have been assessed, however there is a significant divergence in practice once instruction has been made (which may or may not have been established through local protocols with responsible bodies). The two main responses can be summarised as follows:
- The IMCA provider has been instructed to work with the individual and proceeds to do so. If at any time they have concerns that the person has capacity to make the decision, they may raise this with the instructor, including seeking evidence of the original capacity assessment. If the person is assessed as having capacity (or if a capacity assessment has not been undertaken), the IMCA may suggest that the instruction is withdrawn.
- The IMCA provider requires written evidence of a mental capacity assessment before proceeding to work with the individual.
The first response limits the administrative requirements of making an instruction. This can make it easier for people to access the service and also minimise the costs associated with the process of instruction for local authorities and NHS bodies. This is the approach supported in the example service specification. The second response goes beyond the statutory requirement of verifying the instruction was received from an authorised person.
Action for Advocacy has produced a good practice guide on IMCA instruction: Action for Advocacy (2010). IMCA instruction: best practice guidance.