Practice guidance on the involvement of Independent Mental Capacity Advocates (IMCAs) in safeguarding adults
The IMCA's contact with the person at risk
One of the statutory rights of IMCAs is to meet the person where ‘practical and appropriate’. When instructed for a person at risk there are a number of reasons why it may not be practical or appropriate to meet the person. These include:
- meeting the person could jeopardise any criminal investigations
- access to the person at risk may be denied by those people accused of abusing or neglecting them
- the IMCA may be putting himself or herself at risk by entering what may be an abusive environment.
The possibility of undermining criminal proceedings (or other investigation processes) should be considered seriously in each case regardless of whether the person at risk is an alleged victim or perpetrator. IMCAs should be aware that talking to a person before a criminal trial has the potential to affect the reliability (actual or perceived) of evidence. The person could become aware of gaps or inconsistencies in their evidence. Pre-trial discussions may lead to allegations of coaching and, ultimately, the failure of the criminal case.
While an IMCA may commit to not talking about the alleged abuse with the person, it may be very difficult to ensure this. For example, the person could reasonably want to know why the IMCA is involved or assume their involvement relates to the alleged abuse. Similarly, it would be difficult to explore the person's views in relation to any protective measures without talking about why they are being proposed.
Because the safeguarding manager has responsibility for coordinating the safeguarding process, good practice is for the IMCA to discuss the possibility of meeting the person with them in advance of doing so and for this to be included in the strategy plan. Meetings should only go ahead with the safeguarding manager's support. Their agreement should be put in writing (e.g. in safeguarding minutes) and include any limits on the discussion the IMCA can have with the person at risk.
The safeguarding manager should only put restrictions on the IMCA's contact with the person at risk where there is the possibility of an ongoing police investigation. Restrictions should be removed when it becomes apparent that there is no real likelihood of a prosecution.
IMCAs have the option of challenging the safeguarding manager if they believe they are unreasonably denying them access to the person at risk. One option is through the local authority's complaints process.
At the start of representing and supporting some people, instead of seeking to meet the person, the IMCA may be making representations to try to ensure an appropriate criminal investigation.
IMCAs can have a significant role in safeguarding adults regardless of whether they have had the opportunity to meet the person.
When IMCAs are arranging to meet the person at risk, careful attention needs to be given to any risks for either the IMCA or the person. This will need to cover the possibility of entering an abusive environment and the risk of being abused by the person at risk (particularly when they are an alleged perpetrator). The responsibility for risk assessment lies with the IMCA provider.
Because of the complex issues involved in meeting a person at risk identified above, good practice is for IMCAs to also discuss this with their manager and get their support before any meeting goes ahead.
When meeting the person at risk, good practice is for the IMCA to make notes during the meeting, or as soon as possible afterwards (within a maximum of 24 hours).
If the person at risk makes contact with the IMCA (outside of any agreements made by the safeguarding manager) the IMCA should avoid any discussion and end the contact.
An IMCA is instructed at the safeguarding assessment stage to represent and support Seema, a 27-year-old woman with learning disabilities whom it is alleged was sexually assaulted by a male staff member. The alert was raised by a support worker to whom Seema had communicated that she had shared the staff member's bed. Seema has been assessed as lacking capacity to make decisions regarding whether the police should be involved and whether the staff member should continue working with her or not.
A female IMCA is selected by the IMCA provider, whose first action is to contact the safeguarding manager to identify at what stage the investigation is at, and whether it is appropriate to meet Seema. The safeguarding manager advises that the staff member has been suspended. Seema had not yet been interviewed by the police, though the safeguarding manager is not sure why there is a delay. The safeguarding manager confirms that it would not be appropriate for the IMCA to meet with Seema at this stage. It is, however, agreed that it would be appropriate for the IMCA to have contact with the manager of the service to start to build a picture of Seema's feelings and wishes.
The IMCA is invited to a safeguarding strategy meeting the following day where it is expected there will be police representation. Before this meeting the IMCA has the opportunity to talk to the manager of the home. The home manager explains that since the staff member has been suspended Seema has seemed upset about not seeing him and has repeatedly asked where her 'boyfriend' is. The manager also tells the IMCA that Seema has a significant fear of anything connected with medical treatment.
At the strategy meeting the home manager reports that their own investigations have identified that Seema has previously talked about other male staff members as her ‘boyfriend’. Further, while they could not be sure that Seema had not visited the male staff members' home, it was very unlikely because the expectation is that she is always supervised by female staff when out.
The police talk about the possibility of Seema having a medical examination. The IMCA encourages the home manager to talk about Seema's fears regarding medical treatment. It is decided that it is not in Seema's best interests to have a medical examination at this stage, particularly because it appears extremely unlikely that there would be recent forensic evidence. Arrangements are instead made for Seema to be interviewed the following day by the police accompanied by the support worker to whom she made the initial disclosure.
The safeguarding manager confirms at the meeting that the IMCA can meet Seema after the police interview.
Good practice points
IMCAs should get the support of the safeguarding manager before meeting the person at risk. Their agreement should be put in writing and set out any limits on the discussion the IMCA can have with the person.
IMCAs should get agreement from their manager before meeting a person at risk.
IMCA organisations need to ensure there is a robust risk assessment of any meetings between the IMCA and the person at risk.
IMCAs should make a record of any meeting with a person at risk as soon as possible after the meeting and at the latest within 24 hours.