In most situations people who lack capacity will have a network of support from family members or friends (who take an interest in their welfare) or from a Lasting Power of Attorney.
However, some people (who lack capacity) may have no one to support them, (other than paid staff) to make potentially life changing decisions. In order to address this gap, the Mental Capacity Act has created an Independent Mental Capacity Advocate (IMCA) Service, appointed to represent and support such clients. There is now a legal requirement to ensure an IMCA is appointed in the event there is no NOK/friend available/prepared to act on the individual’s behalf. An IMCA will not be the decision maker; however the decisionmaker will have a duty to take into account the information given by the IMCA.
An IMCA will only be involved if:
- The decision is about medical treatment provided by the NHS.
- It is proposed that the person is moved into long-term care of more than 28 days in a hospital or 8 weeks in a care home.
- A long tem move (8 weeks or more) to different accommodation is being considered, e.g. to a different hospital or care home.
- The IMCA service can be extended to specific situations if the local authority or NHS are satisfied that an IMCA would provide particular benefit, including:
- Care reviews regarding accommodation.
- Adult protection cases (even if the person who lacks capacity has family or friends.
NB: An IMCA is not required if treatment is to be given under the Mental Health Act (1983).
The duties of the IMCA are to:
- Support the person who lacks capacity and represent their views and interests to the decision-maker.
- Obtain and evaluate information – an IMCA can talk to the patient in private and examine; where appropriate take copies or health & social care records.
- Ascertain (as far as possible) the persons values, beliefs, wishes and feelings.
- Ascertain alternative courses of action.
- Obtain a further medical opinion if necessary.
- Prepare a report for the person who instructed them.
- If an IMCA disagrees with the decision made , they can also challenge the decisionmaker.