2What is an IMCAThe Mental Capacity Act 2005 has made provision for people who:‘lack Capacity to make certain decisions at the time that decision needs to be made’ to have a statutory right to an Independent Mental Capacity Advocate if they are unbefriended.This is to safeguard the person and ensure that decisions are made in the persons best interest.
3AIM OF THE SERVICEThe aim of the IMCA Service is to provide safeguards for people who lack Capacity to make certain decisions, at the time such decisions need to be made, and have no-one else (other than paid staff) to support or represent them.The IMCA must be independent.
4WHEN TO REFER An IMCA MAY be instructed for: Care Reviews AND P has been deemed by D to lack capacity AND P is unbefriended or the carers are deemed inappropriate to consult.D Must be satisfied that having an IMCA will be of particular benefit to P
5WHEN TO REFER An IMCA MAY be instructed in cases of: Adult Protection Even where family members or others ARE available to be consulted when:P lacks capacity.P is the abused OR the alleged abuser.The Responsible Body proposes to take OR has already taken protective measures.D must be satisfied that having an IMCA will be of particular benefit to P.
6WHEN TO REFER An IMCA MUST be instructed for: Moving into Long Term Accommodation for periods longer than 8 weeks or a change of long term accommodation.ANDP has been deemed by D to lack capacity AND P is unbefriended or the carers are deemed inappropriate to consult.
7WHEN TO REFER An IMCA MUST be instructed if: An NHS organisation proposes to place a person in Hospital, or move then to another Hospital, for longer than 28 days.ANDP has been deemed by D to lack capacity AND P is unbefriended or the carers are deemed inappropriate to consult.
8WHEN TO REFER An IMCA MUST be instructed for: Decisions regarding Serious Medical Treatment.ANDP has been deemed by D to lack capacity AND P is unbefriended or the carers are deemed inappropriate to consult.
9SERIOUS MEDICAL TREATMENT As defined for the purposes of S37 of the ActSerious Medical Treatment is treatment which involves providing, withdrawing or withholding treatment where:In a case where a single treatment is being proposed, there is a fine balance between its benefits to P and the burdens and risks it is likely to entail for him.In a case where there is a choice of treatments, a decision as to which one to use is finely balanced, orWhat is proposed would be likely to involve serious consequences for P.
10SERIOUS MEDICAL TREATMENT Serious Consequences include:The causing of serious and prolonged pain, distress or side effects.Undergoing major surgeryStopping life sustaining treatmentMajor impact on future life choices
11SERIOUS MEDICAL TREATMENT Some examples of Serious Medical Treatment:Chemotherapy/surgery for CancerElectro-convulsive TherapyTherapeutic SterilisationMajor Surgical Procedures (Open heart surgery/brain surgery)Major AmputationsTreatments resulting in permanent loss of hearing or sightWithholding/stopping Artificial Nutrition/HydrationTermination of PregnancyThis list is not exhaustive and each case will be considered on is own merits by D
12POWERS OF THE IMCA The IMCA has a statutory right to: Have private discussions with P.Access the Medical/Social Care records in relation to the decision.Obtain a second medical opinion.Challenge the decision made regarding P’s Capacity.To involve specialist help (e.g. speech & language).
13ROLE OF THE IMCA The IMCA will: Confirm the person instructing them is authorised to do so.Investigate the matter as fully as possible.Ascertain if P could regain Capacity and when.Ensure that appropriate support is given to P to enable him to make his own decision or to improve his ability to be involved in the decision.Record the views, wishes and beliefs of P and of other people involved with P which may affect the outcome.Investigate alternative options.Provide a report to D with regard to P’s best interest.
14DECISION MAKERS DUTIES The Decision Maker MUST:Instruct an IMCA to support and represent P in the situations previously statedConsider the involvement of an IMCA in Care Reviews and Adult Protection.Record that an IMCA has been instructed, keep information provided by the IMCA and inform relevant people that the IMCA is involved.Give access to relevant social/medical care records as requested.
15DECISION MAKERS DUTIES The Decision Maker MUST :Ensure the IMCA is kept informed regarding changes that may affect their role/support.Record how they have properly taken into account the information provided by the IMCA in making the decision in P’s best interest.Ensure the IMCA is informed of the final decision.
16Contacting the Independent Mental Capacity Advocate Is the personwithout capacity the subject or alleged perpetrator in an adult protectionissue?PLYMOUTH HIGHBURY TRUST207 OUTLAND ROADPLYMOUTHPL2 3PFYou have assessed a service user as not having capacity to make a particular decisionConsiderEngagingIMCASTART HEREYESNODoes theService User have appropriate support apart from paid carersDo notengage IMCAYESNOYou MUST engage IMCAThere are exceptions for self-funders and some people placed under the Mental Health Act. Consult the Code of Practice or contact IMCA providerContact IMCAService onOr773333Is the decision about SeriousMedicalTreatment, hospital stay of more than 28 days or a change ofAccommodationYESConsiderengaging IMCANOYESIs the decision about a review ofaccommodationDo not engage IMCANO
18BACKGROUNDIntroduced into Mental Capacity Act 2005 (MCA) through the Mental Health Act 2007Will prevent arbitrary decisions that deprive vulnerable people of their libertySafeguards are to protect service users and if they do need to be deprived of their liberty give them representatives, rights of appeal and for the “deprivation” to be reviewed and monitored.Safeguards cover people in hospital and care homes registered under the Care Standards Act 2000Became a statutory obligation in 2009
19What is deprivation of liberty? Arises from the “Bournewood” case – a ECtHR case – Article 5.HL had been deprived of his liberty unlawfully, because of a lack of a legal procedure which offered sufficient safeguards against arbitrary detention (5(1)) and speedy access to court (5 (4))“The distinction between deprivation of and restriction upon liberty is merely one of degree or intensity and not one of nature or substance”Therefore no definitionSubsequent case law e.g. DE and JE v Surrey County CouncilA serious matter to be used sparingly and avoided wherever possible
20When to Instruct an IMCA Section 39A—AssessmentThe Supervisory body MUST instruct an IMCA when the person being assessed under the Deprivation of Liberty Safeguards has no family member or unpaid Carer to represent them.The Managing Authority MUST notify the Supervisory Body on the Request for Urgent Authorisation or Request for a Standard Authorisation Form if the person has no one to represent them.
21When to Instruct an IMCA Section 39C—Gaps between Representatives.If a persons representative is unable to carry out their role an IMCA MUST be instructed by the Supervisory Body who will act for the person until another permanent representative is appointed.The Managing Authority MUST notify the Supervisory Body when the person’s representative is no longer able or willing to carry out their role.
22When to Instruct an IMCA Section 39D—IMCA requested by the Person or their Representative.An IMCA MUST be instructed by the Supervisory Body if one is requested by either the person or their Representative. They can request an IMCA at any point during the time the Deprivation of Liberty Authorisation is current.The Managing Authority MUST notify the Supervisory Body if the person or their Representative requests an IMCA
23Role of the IMCA Section 39A & 39C The role of the IMCA is to provide an independent voice for a person who is being assessed under the Deprivation of Liberty Safeguardsoris being Deprived of their Liberty under the SafeguardsAnd have no family members, unpaid carers or a Representative to support them and ensure their best interests are being upheld.
24Role of the IMCA Section 39D The role of the IMCA is to support the person or their representative on specific issues regarding the Deprivation of Liberty e.g. calling a review or considering a challenge in the Court of Protection.