MANCHESTER SPECIFIC INFORMATION
The local authority has a duty to make sure that IMCAs are available to represent people who lack capacity to make specific decisions, so staff will need to know when an IMCA must be involved (see Mental Capacity).
IMCAs are independent and generally work for advocacy providers who are not part of a local authority or the NHS.
The majority of adults who access the IMCA service are people with learning disabilities, older people with dementia, people who have an acquired brain injury or people with mental health problems and / or are affected by drug or alcohol use.
IMCAs also act when people have a temporary lack of capacity because they are unconscious or barely conscious whether due to an accident, being under anaesthetic or as a result of other conditions.
A person’s capacity may vary over time or may depend on the type of decision that needs to be made.
Many adults have significant barriers to communication and are unable to instruct the advocate themselves. In addition, many people using the service will be unable to express a view about the proposed decision.
The IMCA service is provided for any person aged 16 years or older, who has no one able to support and represent them, and who lacks capacity to make a decision about either:
Such a person will have a condition that is affecting their ability to make decisions.
IMCAs should be available to people who are in prison, in hostels or homeless and who lack capacity to make decisions about serious medical treatment or long term accommodation.
Many people who qualify for advocacy under the Care Act will also qualify for advocacy under the MCA. The same advocate can provide support as an advocate under the Care Act and under the MCA. This is to enable the person to receive seamless advocacy so that they don’t have to repeat their story. Whichever legislation the advocate is acting under, they should meet the appropriate requirements for an advocate under that legislation.
Both the Care Act and the MCA recognise the same areas of difficulty, and both require a person with these difficulties to be supported and represented, either by family or friends, or by an independent advocate or independent mental capacity advocate in order to communicate their views, wishes and feelings.
Under the Mental Health Act 1983 (MHA) people, known as ‘qualifying patients’, are entitled to the help and support from an Independent Mental Health Advocate (IMHA).
Independent advocacy under the duty flowing from the Care Act is similar in many ways to independent advocacy under the MCA. Regulations have been designed to enable independent advocates to be able to carry out both roles. For both:
The duty to provide independent advocacy is to provide support to:
A person may be entitled to an advocate under the Care Act and then, as the process continues it may be identified that there is a duty to provide an advocate (IMCA) under the MCA. This will occur for example when during the process of assessment or care and support planning it is identified that a decision needs to be taken about the person’s long term accommodation. It would be unhelpful to the individual and to the local authority for a new advocate to be appointed at that stage.
It would be better that the advocate who is appointed in the first instance is qualified to act under the MCA (as IMCAs) and the Care Act and that the commissioning arrangements enable this to occur.
The IMCA should go to meetings on the adult’s behalf and examine proposed decisions to make sure that:
The IMCA is not best interests advocacy. The IMCA should not offer their own opinion or make the decision.
They should be experienced at working with people who have difficulties with communication. They should always attempt to get to know the adult’s preferred method of communication and spends time finding out if a person is able to express a view and how they communicate.
When people meet the IMCA criteria, the local authority and the NHS have a duty to instruct an IMCA for changes in accommodation and serious medical treatment decisions.
For safeguarding adult cases and care and support plan reviews, the local authority and the NHS have powers to appoint an IMCA where they consider the appointment would be of particular benefit to the person concerned.
Local authorities in England should have a policy on how IMCAs will be involved in care and support plan reviews and safeguarding adult procedures. (Customer to add link to local procedures.)
The local authority and the NHS have powers to instruct an IMCA to support and represent a person who lacks capacity where:
A responsible body can instruct an IMCA to support and represent a person who lacks capacity when:
Any adult who meets the following criteria must be referred to the IMCA service.
NHS bodies must instruct and take into account information from an IMCA where decisions are proposed about serious medical treatment, where the person lacks capacity to make the decision and there are no family or friends who are willing and able to support the person.
Serious medical treatment involves:
A person has a right to an IMCA if such treatment is being contemplated on their behalf and the person has been assessed as lacking capacity to make the decision for themselves at that time.
An IMCA cannot be involved if the proposed treatment is for a mental disorder and that treatment is authorised under Part IV of the Mental Health Act 1983. However, if a person is being treated under the MHA and the proposed treatment is for a physical illness, for example, cancer, an IMCA can be involved
Local authority and NHS staff must be able to identify when a person has a right to an IMCA and know how to instruct an IMCA.
Firstly, they should know which organisation has been commissioned to provide an IMCA service in the local authority. Local arrangements will be in place with each IMCA service provider regarding the ways in which referrals can be made.
At the time when the referral is made it must be evident that:
An IMCA cannot be involved if:
The IMCA will stop being involved in a case once the decision has been finalised and they are aware that the proposed action has been carried out. They will not be able to provide ongoing advocacy support to the person. If it is felt that a person needs advocacy support after the IMCA has withdrawn, it may be necessary to make a referral to a local advocacy organisation (see Independent Advocacy).
Each IMCA service covers a local authority area and all eligible people in that area, whether on a permanent or temporary basis, must be referred to the local IMCA service. For example, if a person is living in a care home in Cambridgeshire but Essex County Council are providing the funding for that placement and there is a need to refer the person to IMCA, the Cambridgeshire IMCA service should provide the service.
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