30th September 2018
The role of the IMCA and the Local Authority – what do you need to know?
An ‘IMCA’ is an Independent Mental Capacity Advocate and is a role that was created by the Mental Capacity Act 2005 (“MCA”). The role of the IMCA is to support people aged 16 or over who lack capacity where there are decisions to be made about their care and treatment and there is no family or suitable person other than professionals that can be involved in those decisions.
The starting point is, therefore, to ensure that there is an assessment of the individual’s capacity for the particular decision that is to be taken. A person is assessed as lacking the ability to make a decision if they cannot do one or more of the following:
– understand information given to them about the decision
– retain the information for long enough to make the decision
– use or weigh up the information as part of the decision-making process, and
– communicate their decision (this can be by any means possible).
What does the IMCA do?
The IMCA is independent of the local authority and NHS. In effect, the IMCA stands into the role of a family member or friend as part of the best interest consultation process.
An IMCA will check whether the Best Interest decision-making process under the MCA has been appropriately followed and whether a person’s wishes and feelings have been considered. In some situations, they may ask for a second opinion if they feel this may be warranted. The IMCA can offer a view to the decision maker as to what they consider to be in the individual’s best interests.
The decision maker must take into account information received from the IMCA. The IMCA’s view is important but is not determinative. It should be weighed up in the same way as all other views and facts in reaching a best interest determination.
If the IMCA wishes to challenge a decision that has been made then they may do so informally by meeting with the decision maker, or by a complaints process. An IMCA could also challenge a decision by taking the matter to the Court of Protection and approaching the Official Solicitor.
What decisions trigger the duty to refer to an IMCA?
Remember – The duty to consult with an IMCA only applies where there is no-one else for the decision maker to consult with about the individual’s best interests (other than paid professionals) and only in the following situations:
– The IMCA must be appointed where a best interest decision is going to be taken regarding a long-term care move (more than 28 days in hospital or 8 weeks in a care home). In certain circumstances, an IMCA may be consulted for a care review.
– An IMCA must be consulted where there is a decision about serious medical treatment.
Where there are urgent decisions to be made about treatment and it is an emergency the IMCA does not require consultation. However, if treatment is to continue then a referral must be made as soon as possible afterward.
An IMCA is not consulted about treatment under the Mental Health Act 1983 and the treatment is for a mental disorder. However, in some cases, an IMCA may be involved where somebody is detained under the Mental Health Act if the treatment proposed relates to their physical rather than mental health.
If an IMCA is not involved appropriately then this could be challenged at Court, either by way of Judicial Review of a decision or in the Court of Protection. It is always advisable to consider at an early stage whether an IMCA’s input is required. If there are ongoing proceedings in relation to a person’s care and welfare and an IMCA has not been consulted then proceedings may have to be delayed whilst this occurs; and there is a risk of criticism for the health body or local authority who has not complied with their duty in referring to an IMCA and the safeguards that this entails.
The Rights of the IMCA
– An IMCA has the right to meet with the patient in private.
– An IMCA has a right to meet with other people who may have information about the patient’s care.
– The IMCA should be given access to the patient’s records and may take copies of records which relate to the Best Interest Decision.
Responsibility to Commission and Fund the IMCA Service
Section 35 of the MCA places the duty upon “responsible authorities” to make “reasonable arrangements” for IMCAs to be available to represent and support people who have no-one else other than paid professionals to support them in certain situations as described above. The “responsible authority” is defined in section 35(6A) as: “in relation to the provision of the services of IMCAs in the area of a Local Authority in England, that Local Authority”.
The MCA makes it clear that local authorities must take steps to provide a sufficient IMCA service. At a practical level, this will include allocating appropriate funding to the service.
As you can see, the role of the IMCA is an important safeguard within the MCA. Local authorities will need to make reasonable provision and ensure appropriate funding arrangements are in place for the IMCA service, to meet the needs of those who require this service. This will remain as challenging as ever in times of austerity and increasingly tighter financial constraints on budgets.