Practice guidance on the involvement of Independent Mental Capacity Advocates (IMCAs) in safeguarding adults
IMCAs challenging decisions
Compliance with the MCA
On occasion the IMCA may be concerned that decisions about protective measures do not comply with the MCA . The concerns may focus on:
- the person's capacity to make their own decisions regarding their safety
- whether the person is appropriately protected
- whether less restrictive protective measures have been adequately considered
- whether delays in making decisions about, or putting in place, protective measures go against the person's best interests.
Where an IMCA has significant concerns regarding the process of making decisions about protective measures or the outcomes, they should as soon as possible bring their concerns to the attention of the safeguarding manager. Unless the safeguarding manager is able to resolve the concerns verbally, an IMCA report should be submitted to the safeguarding manager setting out the concerns. It is recommended here that the report is submitted within one week of the concerns being raised and that the safeguarding manager has a maximum of one week to respond to the specific concerns set out in the IMCA report.
If the IMCA is not satisfied with the safeguarding manager's written response (including one not being provided within the time limit) they should communicate this clearly to them. Good practice in resolving serious concerns should be seen as a joint responsibility between the local authority and the IMCAservice rather than, for example, the local authority only responding if a formal complaint is submitted.
At this stage it is recommended that a senior manager from the IMCAservice and another senior manager from the local authority become directly involved. They should meet to try to resolve the concerns.
Where it is still not possible to resolve serious concerns regarding a person's capacity or safety, an application to apply to the Court of Protection should be made. If the case is not initially taken by the official solicitor the application should be made by the responsible body who should also meet the costs associated with the application. It is likely that an urgent application should be made unless both the IMCA organisation and responsible body agree that any delay would not be detrimental to the best interests of the person.
The urgency of resolving some disputes may in exceptional cases require the IMCA service to make an application to the Court of Protection, or ask for judicial review of a decision. This may need to happen before exhausting local informal and formal resolution methods.
In the course of their work IMCAs may have other concerns not directly related to compliance with the MCA in making decisions about protective measures. Examples may include:
- concerns about the person at risk's support and care
- concerns about the process of police involvement
- concerns about a failure of specific individuals or bodies to follow the safeguarding adult procedures.
Good practice is for the IMCA to include any such concerns in their report. IMCAs may at times wish to take formal action in relation to these – for example, instigating complaints processes.
Good practice points
Resolving any serious concerns raised by the IMCA about compliance with the MCA is a joint responsibility held by the IMCA organisation and the local authority leading the safeguarding adults process.
The IMCA should put in writing any serious concern about compliance with the MCA that they have been unable to resolve informally. The report should be submitted within one week of raising the concerns with the safeguarding manager. The safeguarding manager should respond to the IMCA's written concerns within one week.
Where concerns remain unresolved senior managers from both organisations should be involved in discussions to seek a possible resolution.
An application to apply to the Court of Protection should be made by the responsible body, if it has not been possible to resolve the serious concerns in any other way. An urgent application should be made unless it is agreed by both the IMCAservice and the responsible body that a delay would not be detrimental to the best interests of the person.
IMCAs may raise concerns in their report and instigate formal challenges on matters other than compliance with the MCA .