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The Mental Capacity Act 2005 introduced the role of the Independent Mental Capacity Advocate (IMCA).
IMCAs are an independent safeguard for people who lack the capacity,
and who do not have family or friends appropriate to support them, to make specific important decisions about:
• Serious medical treatment
• Change of accommodation
• Care reviews
• In adult protection cases, an IMCA may be appointed even where family members or others are available to be consulted. (Safeguarding)
The IMCA role is to support and represent the person in the decision-making process.
IMCA’s make sure that the Mental Capacity Act 2005 is being followed.

DoLS IMCA roles and other IMCA roles

DoLS – 39A

Section 39A IMCAs may only be instructed when a standard authorisation is not in place. There are two possibilities:

 – A request has been made for a standard authorisation.
 – A best interests assessor has been appointed by the supervisory body to check whether a person is being unlawfully deprived of their liberty.

The 39A IMCA’s role is to represent the person in the assessments which will be carried out. In both cases the person should have no one appropriate to consult.This means having:
no person, other than engaged in providing care or treatment for P in a professional capacity or for remuneration, whom it would be appropriate to consult in determining what would be in P’s best interests– Mental Capacity Act (2005)

DoLS – 39C

The 39C IMCA role can be understood as covering gaps (but not all gaps) in the appointments of relevant person’s representatives. The role ends when another relevant person’s representative is appointed.
39C IMCAs must be instructed when a standard authorisation is in place if:

 – the appointment of a relevant person’s representative ends, and
 – there is no one appropriate to consult who could represent the person’s best interests.

39C IMCAs have the powers of the relevant person’s representative to demand a review and non-means tested access to the Court of Protection. Instructing a 39C IMCA allows people who are deprived of their liberty under the safeguards to always have someone independent to represent their interests.

A 39C IMCA may be required, for example, in the following situations:

 – If a sister appointed as a relevant person’s representative dies and there is no other family member or friend who can represent the person.
 – If a paid relevant person’s representative changes jobs or moves to another part of the country so is unable to continue in their role.

Where there are good commissioning arrangements in place so that supervisory bodies can appoint paid representatives promptly, the need for the 39C IMCA role will be rare.

DoLS – 39D

39D IMCAs are only available when a standard authorisation is in place and the person has an unpaid relevant person’s representative. (Paid representatives are expected to understand their role and to provide the person with appropriate support.)

Where a person has an unpaid representative, a 39D IMCA must be instructed if:
 – The person asks the supervisory body for the support of a 39D IMCA.
 – Their representative asks the supervisory body for the support of a 39D IMCA.
 – The supervisory body believes that the person or their representative would benefit from the support of a 39D IMCA.

On form 11, the reasons for 39D instruction are broken down into:
 – The person who is deprived of liberty has an unpaid representative who has requested the support of an advocate
 – The relevant person will benefit from the support of an advocate
 – The relevant person’s representative will benefit from the support of an advocate
 – Without the help of an IMCA, the person / RPR would be
     i. unable or unlikely to apply to Court or request a review or
     ii. they have already have failed to do so when it would have been reasonable to.

It is the responsibility of the managing authority to explain the option of the support of a 39D IMCA to both the person and their representative at the start of an authorisation. The managing authority will only be in a good position to do this if they are themselves clear about the role of the 39D IMCA.

Good practice is for supervisory bodies to instruct 39D IMCAs at the start of all standard authorisations where a person has a family member or friend appointed as their representative. This gives the person and their representative the opportunity to meet a 39D IMCA and so that they are in a better position to decide if they need the support of one at that point, or sometime in the future.

Accommodation Decisions

Standard authorisations are in part a decision about where someone should live. There may be some overlap with IMCA instructions for accommodation decisions for those people with no one appropriate to consult. The MCA was amended to remove the requirement for an IMCA instruction for an accommodation decision in the following situations.
 – If a proposed move is subject to a request for a standard authorisation under the Deprivation of Liberty Safeguards, there is no need to instruct an IMCA specifically for the accommodation decision. This is because the person is entitled to a 39A IMCA if there is no one appropriate to consult (amended MCA, Sections 38(2)A, 39(3)A).
 – After a standard authorisation is in place, any further accommodation changes where the person will also be subject to a standard authorisation will not require an IMCA to be instructed. This is because the person should be represented by their relevant person’s representative (MCA, Section 39A(6)). (This includes when this role is being covered by a 39C IMCA).

An IMCA is unlikely to be required for decisions about where a person should stay immediately after an authorisation for a deprivation of liberty ends. This is because the relevant person’s representative (whether paid or otherwise) is not considered as providing care or treatment in a professional capacity (MCA, Sections 38(10), 39(7)). They are expected to provide independent representation for this accommodation decision. If a decision about where the person should stay happens some time after the authorisation ends, an IMCA may need to be instructed because the representative’s role will have ended with the authorisation.

Serious Medical Treatment

Having a paid relevant person’s representative, 39A, 39C or 39D IMCA does not change a person’s eligibility for an IMCA to be instructed for any serious medical treatment decisions.

Example of when SMT instruction needed:

If a person, who has a paid relevant person’s representative and is currently under a standard authorisation, needs inpatient treatment for cancer, an IMCA must be instructed if they lack capacity to make the decision themselves and they have no family or friends who it is appropriate to consult. The IMCA for the serious medical treatment decision must be instructed regardless of whether the person may also need to be deprived of their liberty while in hospital.

Care review and safeguarding adults’ instructions

The option to instruct an IMCA for care reviews and safeguarding adults applies regardless of the availability of a person’s representative, 39A, 39C or 39D IMCA.
It is good practice for local authorities and NHS bodies to involve the relevant person’s representative in care reviews that happen while the person is subject to a standard authorisation: it is unlikely that instructing an IMCA for a care review would benefit the person.

The safeguarding manager making a decision about the benefit of instructing an IMCA where there is a relevant person’s representative (whether paid or not) should consider:
 – The opportunity for the representative to be fully involved in the safeguarding adult process,
 – Whether there may be a conflict of interests for the person’s representative.

In cases where there is concern about the representative’s ability to represent the person’s views and wishes, it may be desirable to instruct an IMCA.

Where a 39A, 39C or 39D IMCA is involved and safeguarding adults’ procedures are being followed, it should not be assumed that this IMCA will support and represent the person for the safeguarding procedures, even when the IMCA has raised the alert. If the safeguarding manager believes that involving an IMCA will benefit the person it is good practice to instruct an IMCA specifically for the safeguarding adult’s process. In most cases it would be best if the same IMCA undertakes this role.

Advocacy Services North East Wales operate with a
“SEAMLESS LINK” between services.
If you are a client in the community and become an IMHA/IMCA client we will endeavour to ensure you keep the same advocate.

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