Practice guidance on the involvement of Independent Mental Capacity Advocates (IMCAs) in safeguarding adults
Deciding whether an IMCA should be instructed
Under the regulations responsible bodies are required to consider whether instructing an IMCA for adults at risk would be of ‘particular benefit’ to the individual. The MCA code of practice expects responsible bodies to develop a local policy to support decision-making in this area (10.61, see example in the Appendix ).link
If the person at risk lacks capacity to consent to one or more of the protective measures being considered (or interim measures put in place), this guidance recommends that an IMCA should be instructed if one of the following applies:
- Where there is a serious exposure to risk:
- risk of death
- risk of serious physical injury or illness
- risk of serious deterioration in physical or mental health
- risk of serious emotional distress.
- Where a life-changing decision is involved and consulting family or friends is compromised by the reasonable belief that they would not have the person’s best interests at heart.
- Where there is a conflict of views between the decision-makers regarding the best interests of the person.
- Where there is a risk of financial abuse which could have a serious impact on the person at risk's welfare. For example, where the loss of money would mean that they would be unable to afford to live in their current accommodation, or to pay for valued opportunities.
In some situations both the alleged perpetrator and alleged victim of abuse could benefit from the support of an IMCA . It should not be the same IMCA who represents both. A conflict of interest could arise where two IMCAs are involved from the same organisation. Where two instructions are being considered the safeguarding manager should discuss this with the local IMCA provider. They should identify how the conflict of interest could be managed.
Example
An adult protection alert has been raised after it is suspected that a female staff member has been stealing Raj's money. The allegation is that while shopping for him, she made purchases for herself. Raj is in the advanced stages of dementia and his benefits are managed by an appointee. While Raj has very limited contact with family or friends the safeguarding manager decides not to instruct an IMCA . This is because the main focus of the safeguarding adults process will be the potential action to be taken against the staff member.
Other advocacy support
Where a person at risk is already supported by an advocate it is unlikely that an IMCA will be needed.
Depending on what other advocacy services are provided locally, there may be a choice between instructing an IMCA and involving another advocate.
The following points could help decide whether an IMCA should be instructed where other advocacy support is available.
- Whether the person could benefit from advocacy support for issues other than those related to safeguarding adults. The IMCA role would be focused on the protective measures being considered and is likely to end when decisions have been made regarding these.
- Whether the IMCA's right of access to relevant records would make a significant difference for the person.
- Whether the IMCAservice or other advocacy service has good availability to support the person during the safeguarding adults process.
Example
A safeguarding alert has been raised for Jenny, a woman with severe learning disabilities, regarding potential neglect in a supported living service. This alert was raised by her volunteer advocate who has known her for over two years. A potential protective measure to be considered is whether the support provider should be changed. The safeguarding manager speaks to Jenny's care manager who says that Jenny would not have the capacity to decide who provides her support. As part of the consideration of whether an IMCA should be instructed, the safeguarding manager contacts Martha, the volunteer advocate's coordinator. Martha says that while the volunteer advocate would find it difficult to attend meetings during the day, she herself knows Jenny and could cover any meetings the volunteer advocate could not make. The safeguarding manager is confident that Jenny would have independent representation through the safeguarding process and so an IMCA is not instructed.
How an IMCA instruction for safeguarding adults fits with other IMCA instructions
The consideration as to whether an IMCA should be instructed for safeguarding adults should be informed by whether an IMCA has been, or should be, instructed for any other matter (i.e. a serious medical treatment or accommodation decision, a care review, or for one of the IMCA roles related to the Deprivation of Liberty Safeguards).
Where an IMCA is in place for another matter their focus will be on the specific reason for instruction – which may or may not be related to the safeguarding adults issues. For example, an IMCA instructed for a serious medical treatment decision would not be representing the person in relation to potential financial abuse. Conversely, if an IMCA has been instructed for an accommodation decision to potentially move a person from an abusive situation, their representations will be relevant to the safeguarding adults' process.
The expansion regulations support IMCA instructions for safeguarding adults in addition to other instructions. Where the safeguarding decisions go beyond, or are different to, the reason for the other IMCA instruction, consideration should be given to a further IMCA instruction. This may or may not be undertaken by the same IMCA .
Example
A safeguarding alert has been raised after John, an 86-year-old man with dementia, is seen assaulting Gladys, another resident of the care home. After a discussion with the local police, the safeguarding manager asks Khan, a duty social worker, to visit the home to talk to the people involved.
The home manager tells Khan that it is likely they will have to give notice to John to leave. There has been a formal complaint from Gladys' sister. Khan meets John and finds it very difficult to establish any communication with him. Khan confirms the manager's understanding that John does not have the capacity to make decisions regarding where he lives. John's only contact with family is through birthday and Christmas cards.
Khan reports back to the safeguarding manager. Because the only proposed protective measure is an accommodation move, John has to be provided with an IMCA under Section 39 of the MCA and not as a result of the local authority's discretionary powers. The safeguarding manager contacts John's care manager who works for a different authority and ensures they make the accommodation instruction. The IMCA is invited to the safeguarding meetings that focus on John.
Note: were any additional protective measures to be proposed then the local authority could use its discretionary powers to instruct an IMCA for those matters.
What if moving the person is being considered?
A possible protective measure is moving the person at risk, including temporarily. Where this is being considered (or takes place) there is a need to check whether there is a duty to instruct an IMCA for an accommodation decision. The following conditions would need to be met for this instruction:
- the possible move will or could extend beyond 28 days for hospitals and eight weeks for care homes
- the person has no one with whom it is 'appropriate to consult'.
If at any time during the safeguarding adults proceedings, the person at risk meets the criteria for an IMCA to represent them for an accommodation decision, this instruction must be made regardless of whether an IMCA was previously instructed. If an IMCA had already been instructed, good practice would be for the same IMCA to undertake both roles.
Example
A safeguarding alert has been raised after Phillip, a man with autism who has been in hospital for inpatient treatment, goes missing and is found some hours later in the local town in his pyjamas. An IMCA is currently representing Phillip in relation to serious medical treatment decisions. The safeguarding manager chooses to use the discretionary powers because the protective measures being considered go beyond the restrictions which may be required for Phillip to access the proposed treatment. The safeguarding adult instruction is allocated to the same IMCA by the IMCA provider.
The safeguarding plan sets out restrictions which could amount to a deprivation of liberty, requiring the hospital to make an application for a standard authorisation. This leads to the instruction of a 39A IMCA which is again undertaken by the same IMCA .
Good practice points
The safeguarding manager should consider whether an IMCA should be instructed for all persons at risk. Local procedures should make it clear that the safeguarding manager will hold this statutory responsibility.
IMCA services should ensure that where there is more than one current IMCA instruction for any person, these roles should be undertaken by the same IMCA.
Where both the alleged perpetrator and victim of abuse could benefit from an IMCA they should not be represented by the same IMCA . The safeguarding manager needs to agree with the local IMCA provider how any conflict of interest will be managed if two instructions are made to the same organisation for the same case.
