Practice guidance on the involvement of Independent Mental Capacity Advocates (IMCAs) in safeguarding adults
The role of the IMCA
The primary foci of IMCAs in safeguarding adults proceedings are the decisions concerning protective measures (including decisions not to take protective measures). IMCAs have a statutory role to represent and support the person at risk in relation to these decisions which must comply with the MCA.
IMCAs have a particular responsibility to ensure that the person's feelings and wishes are represented in discussions concerning the protective measures. To do this they will need to:
- interview or meet the person if possible (see ‘The IMCA ’s contact with the person at risk’)
- talk to professionals– paid carers and other people who can give information about the person's wishes and feelings, beliefs and values (see ‘The IMCAs contact with family, friends and others’).
- access relevant records (see ‘Access to information’).
IMCAs will seek to establish that all possible protective measures have been considered and that consideration has been given as to whether the proposed measures are the least restrictive of the person's rights.
IMCAs should find out whether the person at risk has been given as much support as possible to participate in the decision-making process. This could include asking whether the person at risk has been invited to and supported to participate in safeguarding meetings as appropriate.
Local authorities and NHS bodies which instruct an IMCA for adults at risk are legally required to have regard to any representations made by the IMCA when making decisions concerning protective measures.
Making decisions about protective measures in relation to the person at risk is just one of a number of the functions of the safeguarding adults process. Others include:
- coordinating the safeguarding assessment
- where abuse has taken place, active consideration in consultation with the police and legal services of the potential use of relevant legislation (including Section 44 of the MCA )
- identifying whether other people may be at risk and taking appropriate action
- where staff members are alleged perpetrators to consider referring them to the Independent Safeguarding Authority or a registration body (e.g. General Social Care Council (GSCC), British Medical Association (BMA))
- providing information to the Care Quality Commission (CQC)
- minimising any risks to witnesses and ‘whistleblowers’.
Regulations allow IMCAs to make representations on any matter they feel is relevant to decisions concerning protective measures. For example, an IMCA may raise concerns about the investigation process or the involvement of the police.
An IMCA has been instructed at the safeguarding planning stage after it was alleged that Arthur had sexually assaulted two women with learning disabilities at an employment scheme for people with learning disabilities. Prior to the involvement of the IMCA , the police had interviewed Arthur and said that it was very unlikely the Crown Prosecution Service would recommend a prosecution. A protective measure being considered was making his temporary exclusion from the employment scheme permanent. Arthur has been assessed as lacking capacity to make an informed decision about his use of the employment scheme on the basis that he shows little understanding of the seriousness of the assaults.
When the IMCA is invited to a safeguarding planning meeting they ask the safeguarding manager whether Arthur himself has been invited. This has not happened and after some discussion the safeguarding manager agrees that it is one way of involving Arthur as much as possible in the decision-making process. The IMCA also confirms with the safeguarding manager that it is appropriate to meet with Arthur at this stage of the safeguarding process.
Prior to the meeting the IMCA meets with Arthur who is very upset about the prospect of not returning to the employment project. At the safeguarding planning meeting the IMCAsupports Arthur to express this. The IMCA also asks the question as to what other options have been considered which may be less restrictive. The safeguarding manager requests Arthur's social worker to investigate what other options there might be, including increased supervision with the employment project before meeting again. The IMCA makes representations that the next meeting should be scheduled as soon as possible because of the continued anxiety Arthur is experiencing. It is also suggested that Arthur meet with a psychologist to help him understand the seriousness of the sexual assaults. The safeguarding manager makes time for Arthur to understand what this would involve. In response Arthur communicates a willingness to go along with this if it will help him go back to the employment project.
A safeguarding alert is raised by a staff member working in a residential care home when they find Vera, a 90-year-old woman, in a state that suggests she has been in bed for over 24 hours without any personal care being provided, including not changing her incontinence pad and not supporting her to eat and drink.
The investigation confirms this is the case and the manager of the home says they will take action to ensure it does not happen again. Vera's son is her Lasting Power of Attorney for property and affairs (her financial decisions). While he is concerned about what took place, he is against any suggestion that Vera should move from what is considered by the local authority to be a poor quality service. The local authority's concerns are supported by what is contained in published CQC reports and by the fact that Vera shares a room with someone she does not know.
The safeguarding manager wants to explore the option of Vera moving as part of the safeguarding plan. After the care manager has assessed Vera as lacking capacity to make decisions about where she lives, an IMCA is instructed by the safeguarding manager
The IMCA confirms with the safeguarding manager that it is appropriate to meet Vera at this stage of the safeguarding adults process. The IMCA arranges to do this prior to a scheduled safeguarding planning meeting. They meet Vera alone in a small lounge. Previously the IMCA had spoken to the manager of the home who said that Vera's speech was difficult to understand as a consequence of a stroke, but she clearly could communicate yes and no. The IMCAspends over an hour with Vera and finds her to be very alert and giving consistent answers to the questions asked. Vera clearly communicates that she is not happy sharing a room or with the support provided by the home.
The IMCA provides a report to the safeguarding manager prior to the meeting in which they identify the wishes and feelings that Vera has communicated. They also raise a number of concerns in the report, the central one being that Vera appears to demonstrate significant understanding of her living situation, and suggest that further capacity tests should be undertaken.
The IMCA report
IMCAs are required to produce a report for the person who instructs them. This should include representations regarding the proposed protective measures and any matters the IMCA feels are relevant.
Where the person who instructed the IMCA is not the safeguarding manager, it is recommended that the report is at the same time provided to the safeguarding manager. Good practice is for the safeguarding manager to decide on the distribution of the report and not the IMCA . If the IMCA is asked for copies of the report they should direct the person to the safeguarding manager.
Ideally an IMCA report is provided before decisions are made about protective measures. It is also good practice for the IMCA to provide written reports for all safeguarding planning meetings. In some cases the IMCA may have had little opportunity to write a report before decisions are made. Delaying making decisions while waiting for a written IMCA report may go against the person's best interests.
Where decisions are made about protective measures before an IMCA report is received there is still a statutory requirement to have had regard to any representations the IMCA has already made (including verbally at safeguarding adults meetings). The IMCA report in these circumstances should be provided as soon as possible after decisions are made to ensure timely and appropriate representation. It is suggested here that this is within one week.
To facilitate the IMCA role it is recommended that safeguarding managers receive a briefing or training on the IMCA role. Also, IMCAs should undertake training on the local safeguarding adults procedures.
Good practice points
The primary role for IMCAs in safeguarding adults is to represent and support the person at risk in relation to best interests decisions concerning protective measures. This includes any decision not to take protective measures.
IMCAs may make representations on any matter relating to the safeguarding adults proceedings.
IMCAs should wherever possible produce written reports for safeguarding planning meetings.
IMCAs’ reports should be submitted to the safeguarding manager who should take responsibility for deciding who they should be circulated to. Any requests made to the IMCA to see the report should be directed to the safeguarding manager.
If not already produced, IMCA reports must be submitted within one week of decisions about protective measures being made as part of the safeguarding plan.
Safeguarding managers should receive a briefing or training on the IMCA role.
IMCAs should receive training on local safeguarding adults procedures.