Briefing Session – The role of the Independent Mental Capacity Advocate in

relation to the Mental Capacity Act and Deprivation of Liberty Standards

• Advocacy is speaking and/or acting on behalf of people to secure the services they need and the rights to which they are entitled.

• Advocacy aims to ensure that people's opinions, wishes or needs are expressed and listened to.

• Advocates are independent from other services the person might access.

lifestyle

preferences

beliefs

• Where the person is unable to give clear instructions.

• The Advocate will get to know the person and how they communicate.

• Talk to people who know them.

• Represent the person’s preferences, values and beliefs.

• Ensure their rights are protected and any decisions made are person – centred.

• Statutory Advocacy under the Mental Capacity Act, 2005 which came into force April 2007

• The IMCA has rights under the act to access medical records which are relevant to the decision.

• The decision maker must consider the IMCA report when making the decision

• The IMCA has the right to challenge the decision

• Over 16.

• Must not have family or friends who are willing or appropriate to consult with.

• Must have been assessed as lacking capacity to make a decision about one of the following;

Involves• giving new treatment, stopping treatment or withholding treatment that could be offered where• there is a fine balance between likely benefits and burdens• a decision between treatment options is finely balanced• or proposed treatment is likely to have serious consequences for the person

Serious consequences include• Serious and prolonged pain, distress or side effects• Potentially major consequences e.g. stopping life sustaining treatment• Serious impact on person’s future life choices e.g. ability to have children

Serious Medical treatmentExamples in MCA Code of Practice•  Chemotherapy and surgery for cancer

•  Electro-convulsive therapy

•  Therapeutic sterilisation

•  Major surgery (such as open-heart surgery or brain/neuro-surgery)

• Major amputations (for example, loss of an arm or leg)

•  Treatments which will result in permanent loss of hearing or sight•  Withholding or stopping artificial nutrition and hydration•  Termination of pregnancy

Other Examples (Serious for the individual)• Vaginal examination for lady who won’t tolerate interventions• Dental examination requiring use of general anaesthetic

a. hospital for more than 28 days b. provided by NHS body for 8 weeks or

morec. provided by local authority for 8

weeks or more

Responsible bodies do not have to refer if detained under Mental Health Act but should refer if person has been discharged (s.117) or if decision not covered by MHA (e.g. treatment for physical health)

Care ReviewRegarding review of accommodation arranged by responsible body

Safeguarding Adults Referral can be made in this instance even if family

or friends are involved.

Safeguarding AdultsIMCA instruction must be considered where a person lacks capacity to consent to one or more of the proposed protective measures

The IMCA could support either an alleged victim or perpetrator who lacks capacity

Consideration should be given to the most appropriate time to instruct an IMCA – this may be at the strategy stage or planning stage

Safeguarding AdultsNeed to consider whether IMCA involvement is of

“particular benefit” to the individual

i.e. where

- there is serious exposure to risk e.g. death, physical injury, serious emotional distress

- there is a life-changing decision involved

- there is a conflict of views between professionals

- there is a risk of financial abuse which could have a serious impact on the person’s welfare e.g. they’d have to change accommodation

• Respond within 2 working days.

• Meet with the person, speak with anyone who knows them.

• Talk to any professionals involved with the person.

• Attend any relevant meetings.

• Find out as much as possible about the persons wishes, values and beliefs.

• Submit a written report to the decision maker.

• Recommend any other courses of action that may help to support the decision making process.

• Enable the decision maker to make decisions in the best interest of the person.

• IMCA encouraged and supported to challenge decisions which seem to go against the person’s wishes, values and beliefs.

• They will be encouraged and supported to seek second opinions in these instances.

• Assess capacity

• Make the decision

• Recommend a specific outcome

• The IMCA referral form has qualifying criteria which must be met before the referral can be accepted.

• It is very important that all sections of the form are fully completed.

IMCA role in Deprivation of Liberty Safeguards

• 39A – IMCA must be consulted during DOLS assessment process if no appropriate friends/family

• 39C – IMCA must be instructed where there is a gap in provision of an RPR

• 39D – a person who is deprived of their liberty or their unpaid RPR has a right to request extra support from an IMCA

• Paid Relevant Person’s Representative – IMCAs are also commissioned to act as paid RPRs in South Tyneside

Dianne Soulsby (first contact)

Your Voice CountsThe Old BankSwinburne StreetGatesheadNE8 1AX

(0191) 478 64 72

mail@yvc.org.ukwww.yvc.org.uk Download referral form from website