Introduction to IMCA
Advocacy for all provides IMCA and RPR services to East Kent and the London boroughs of Bromley, Bexley, Lewisham and Greenwich.
Independent Mental Capacity Advocates (IMCA) help people who are assessed to lack capacity about medical treatment or where they live and have no family or friends that it would be appropriate to consult with about those decisions.
There is more information about IMCA on this page.
when is an IMCA needed?
- where an NHS body is providing, withdrawing or stopping serious medical treatment
- when an NHS body or local authority is proposing a stay in a care home of more than 8 weeks
- a person will stay in hospital longer than 28 days
- referrals may also include safeguarding adult cases or accommodation reviews
an IMCA is
- independent of the person making the decision
- able to meet the person in private
- able to see all relevant health, social services and care home records
- able to request an additional medical opinion
- someone who has completed the national IMCA training
what does an IMCA do?
- supports and represents the person in the decision making process
- find out the person's past and present wishes, feelings, values
- evaluate information including accessing and copying relevant social and medical records
- evaluate alternative courses of action
- consult with others involved in the person's life
- seek a further medical opinion if necessary
- check the Mental Capacity Act principles and best interest check list are being followed
- prepare a report, which the decision maker has a legal duty to consider
- challenge the decision (including capacity) if necessary, informally first and through Court of Protection as a last resort
when should a referral not be made?
- When serious medical intervention is needed immediately
- When treatment is regulated by Part 4 of the Mental Health Act
- Where accommodation is needed urgently
- Where restrictions are placed on an individual's accommodation under the mental health act
What is IMCA?
What is the mental capacity act 2005?
The Mental Capacity Act 2005 is a comprehensive legal framework for decision making for people who lack capacity to make particular decisions for themselves. It is accompanied by a Code of Practice and is based on common law and good practice. It puts the needs and wishes of the person at the centre of any decision making process.
What is the independent mental capacity advocate (IMCA) service?
The IMCA service is available for people over 16 who fit certain criteria and who are facing a specific issue where a decision has to be made in their best interests.
The person must
- have been deemed to lack capacity, at that time, for the particular decision
- be unbefriended (have no relative or friend that it would be appropriate to consult with about those decisions)
The decision to be made will be one of the following
- a long term move (of more than 8 weeks to a home, or more that 28 days in a hospital)
- a serious medical treatment
- a care review
- certain safeguarding issues
If the above applies then a decision maker must, by law, refer to the IMCA Service. The Act also now allows IMCA's to be involved, under certain circumstances, when an application is made to deprive someone of their liberty. Please see our DOLS leaflet for further information.
What is an IMCA?
An IMCA is a specialist advocate. They work with people from all vulnerable client groups with all nature of impairments that can result in someone lacking capacity. They are independent of the decision maker and responsible body, and they safeguard the rights of people who lack capacity.
What does an IMCA do?
The IMCA tries to establish the person's feelings, wishes and beliefs. They seek ways of involving and communicating with them and they talk to others involved in the person's life. They gather information including alternative options. IMCA's have a statutory right to inspect the person's records and, if necessary, request a second opinion. Their findings are noted in reports to the decision maker which should be taken into account during the decision making process. IMCA's also have the power to challenge the final decision. IMCA's do not test capacity and they are not the decision maker.
Who is the decision maker?
The decision maker is the person who has the ultimate responsibility for making the best interest decision. This is usually a consultant for serious medical treatment decisions or a care manager for accommodation decisions. Before being referred the client must have been assessed and deemed to lack capacity (as required by the Mental Capacity Act). Referrals are not accepted without the decision maker's knowledge. IMCA's work directly to the decision maker and copies of their confidential reports are forwarded to the decision maker only.
How do I make a referral?
The decision maker or appointed staff member should make the referral directly to our service. Referrals are taken by email or via our website
Enquiries and more information
For enquiries and information please contact us by telephone or email. We are happy to discuss potential individual referrals. The service is available from 9am - 5pm 5 days a week (excluding public holidays).
The IMCA role
Deprivation of liberty safeguards (DOLS)
Sometimes a vulnerable person who lacks capacity needs to be restricted in order to provide treatment or care which is necessary in their best interests to protect them from harm. The degree and level restrictions may amount to a deprivation of liberty (DOL).
On 1st April 2009 it became a requirement by law to apply for an authorisation in order to deprive someone of their liberty. To do this the managing authority (the hospital or care home which is, or will be, depriving the person of their liberty) must put in an application to the supervisory body. The supervisory body (SB) will then carry out a series of 6 assessments to decide if it is right to deprive the person (known as the relevant person) of their liberty.
Under certain circumstances, a DOLS IMCA can be instructed to act in a number of different ways. When there is no family member, friend or appropriate person (known as the relevant person's representative - RPR) to support the relevant person (RP) through this process the SB will appoint a DOLS IMCA. Once the application has been approved the SB can also instruct a DOLS IMCA either to support the RP, the relevant person's representative (RPR) - or both, or to act as the RPR themselves if no representative is available.
What is a DOLS IMCA?
A DOLS IMCA is a specialist advocate. They work with people from all vulnerable client groups with all nature of impairments that can leave someone lacking capacity. They are independent of the MA and SB, and they safeguard the rights of people who lack capacity. The role of a DOLS IMCA is different to that of a general IMCA in 3 ways
- they only deal with issues relating to deprivation of liberty applications/authorisations
- DOLS referrals to our service are received by us directly from the SB - after they receive an application for DOL from the MA
- the relevant person must be 18 years old or over.
If you would like more information on the role of a general IMCA please see our 'Who are we and what do we do' leaflet.
What will the IMCA do?
The SB can instruct a DOLS IMCA to take on one of the following roles
Section 39A DOLS IMCA - To act when the RP is unbefriended (has no RPR). The SB will instruct a DOLS IMCA to represent the person during the assessment process, with a particular focus on the 'best interest' assessment. The assessment process must be completed within 7 days for urgent authorisations, where a DOL is already happening or 21 days for a standard authorisation where there is a proposed DOL. The 39A DOLS IMCA role is similar to the original IMCA role including
- enabling RP participation
- seeking and evaluating information
- finding alternatives, challenging (if appropriate)
- submitting a report to the SB around the values, wishes and beliefs of the RP in relation to the decision
The 39A DOLS IMCA also has additional rights and responsibilities including access to authorisations and assessments plus the right to take the RP's DOLS case to the Court of Protection.
Section 39C DOLS IMCA - To act, after the authorisation has been granted, as the RPR (where none is available). The IMCA will represent and assist the RP during the period of the authorisation.
Section 39D DOLS IMCA - To support the RP, the RPR or both - after the authorisation has been granted. The IMCA will represent and assist the person, their representative, or both during the authorisation period.
In the role of both 39C DOLS IMCA and 39D DOLS IMCA they help either the RP, their representative or both to understand: The effect of the authorisation, what it means, why it has been given, why the person meets the criteria for authorisation, how long it will last, any conditions to which the authorisation is subject and how to trigger a review or challenge in the Court of Protection.
To apply for an authorisation/make a DOLS referral
The Department of Health offers a number of useful booklets which give further information on the process of instructing a DOLS IMCA and the DOLS IMCA role. The following booklets: 'Deprivation of Liberty Safeguards: A guide for hospitals and care homes' and 'Deprivation of Liberty Safeguards: A guide for primary care trusts and local authorities' can be found here.
Right to access
Section 35(6) of MCA 2005 provides IMCAs with certain powers to enable them to carry out their duties. These include
- the right to have an interview in private with the person who lacks capacity
- the right to examine, and take copies of, any records that the person holding the record thinks are relevant to the investigation (for example, clinical records, care plans, social care assessment documents or care home records) (MCA Code of Practice 10.26)
Good practice model
- all relevant staff should have the knowledge of IMCA's rights under MCA 2005
- the responsible body should also have procedures, training and awareness programmes in place to facilitate this (MCA Code of Practice 10.14)
- IMCAs must be able to meet with the person in an environment which offers privacy, in discussion with the relevant staff
- the relevant staff holding the person's records should facilitate the IMCA's access to relevant records, without delay
- all relevant staff and IMCA's should work in partnership, with mutual trust, in the best interests of the person
- IMCAs should contact the relevant organisation's MCA lead in cases when they are not able to interview the person in private, and/or they are denied access to the person's records and the relevant MCA lead must act without delay to assist to resolve the issues
- IMCAs should pass on such practice issues to the commissioners (local authorities: Annie Ho for Kent County Council and Marilyn Kitchenham for Medway Council), for further discussion and review at IMCA Steering Group meetings
Frequently asked questions for families and friends
What is the IMCA service?
The IMCA service is a specialist advocacy service which is a vital safeguard for adults when they lack capacity to make some important decisions. The IMCA service is part of the Mental Capacity Act, this means that deciding who can have an IMCA and what the IMCA does is set out in law. You can find out more at www.dh.gov.uk/imca.
Who can have an IMCA?
Adults without family or friends who are deemed appropriate to consult with, have a legal right to have an IMCA when a decision is being made about either serious medical treatment or where they will live, and they lack capacity to make that decision.
Adults may sometimes also have an IMCA when they do not have the capacity to agree to the arrangements being made in care reviews or adult protection proceedings.
Who decides if a person lacks capacity to make a decision?
The decision maker decides whether the person has capacity to make a specific decision. For medical treatment this would be a doctor for decisions about where someone lives or adult protection proceedings this would usually be a social worker or care manager.
The decision maker must follow the test in the Mental Capacity Act to decide if the person has the capacity to make the decision themselves. The decision maker also decides if the person needs an IMCA.
Is the IMCA a Decision Maker?
No. The IMCA does not make decisions and does not do capacity tests. The IMCA provides information which the decision maker must take into consideration in reaching a decision in the person's best interests.
Why do some people with family and friends still have IMCAs?
The IMCA service is only available to people who have no friends or family who are deemed appropriate to consult with.
- There are some exceptions
- if the decision maker feels that the person's friends or family are inappropriate to support the person in this particular decision they must bring in an IMCA. This might be because the family and friends live too far away, are too ill, elderly or disabled, have decided they do not want to be involved or because there is a conflict of interest. If you feel you are able to support the person in the decision, instead of an IMCA you need to contact the decision maker.
In adult protection proceedings the decision maker is able to bring in an IMCA even if there are family and friends available.
What will the IMCA do?
The IMCA's role is set out in the Mental Capacity Act, IMCA Regulations and the Code of Practice.
The IMCA is there to support and represent the person in the decision making process.
The IMCA will meet the person, if possible in private and try to find out the person's past and present wishes, feelings and values. The IMCA will ensure that the decision maker considers these when making the decision.
The IMCA is allowed to read relevant social and medical records and can seek a further medical Opinion if necessary.
The IMCA will talk to other people involved in the person's life and check all options that might be right for the person are being looked into. The IMCA will also check that the decision is being made correctly following the Mental Capacity Act.
The IMCA will write a report of their findings for the decision maker. The decision maker has to read this report before making the decision. If the IMCA is concerned about the decision that has been made the IMCA can challenge this decision.
Can I see the IMCA's report?
The IMCA will write the report for the decision maker, and the decision maker will decide who else needs to see the report. So any requests to see the IMCA report need to go to the decision maker.
Will the IMCA talk to me?
The IMCA is solely there for the person who lacks capacity to make the decision. Sometimes an IMCA might talk to the person's family and friends if the person is not able to clearly tell the IMCA themselves about their wishes and views. If the IMCA talks to family and friends it is to find out if they know what the person's wishes and feelings were, or the best way to communicate with them. Family and friends can still contact the decision maker to express their own views or concerns about the decision being made.
The IMCA has a short time to do their work so they will not always contact all family and friends. If they do so it is likely to be by phone. They might also not contact family and friends if they are involved in adult protection proceedings.
Who can be an IMCA?
An IMCA must have relevant experience, they have usually worked for some time with vulnerable adults and people who may find it difficult to communicate, such as people with learning disabilities, mental health needs, acquired brain injury or dementia. An IMCA must have an enhanced criminal records check and have completed the national IMCA training.
What is Advocacy for All?
Advocacy for All is a registered charity which provides independent advocacy services
Is an IMCA needed?
Does the person have a condition which is affecting their ability to make decisions?
Is the person facing a decision about serious medical treatment or change of accommodation?
Or are there decisions relating to Safeguarding proceedings (even where family or friends exist)?
Or is there a care/accommodation review where it is felt that person would benefit from an IMCA
Is the person 16 years or older?
Does the person lack capacity to make the particular decision?
Is there nobody (other than paid workers) whom the decision-maker considers are appropriate to be consulted about the decision
Deprivation of liberty
Sometimes a hospital or care home might feel that a vulnerable person (who lacks capacity) needs to be restricted in order to provide treatment or care which is necessary (in their best interests) to protect them from harm. The degree and level of the restrictions could lead to a deprivation of the person's liberty. To to deprive someone of their liberty the care home or hospital must apply for an authorisation which (if approved) will only be granted for a certain amount of time.
Am I entitled to help and support?
During the period of authorisation the person or the person's representative (or both) are entitled to help and support from a specialist advocate called a Deprivation of Liberty Safeguards Independent Mental Capacity Advocate (DOLS IMCA). In this role they are known as a Section 39D DOLS IMCA. DOLS IMCAS are independent of hospitals, care homes and funding bodies. They work with people who lack capacity and they safeguard their rights.
What will the IMCA do?
The DOLS IMCA will help the person and their representative to understand
- why the person meets the criteria for authorisation
- any conditions the authorisation is subject to
- the effects of the authorisation
- what it means
- why it has been given
- how long it will last
- the right to request a review
- the right to make an application to the Court of Protection to seek variation or termination of the authorisation
The Department of Health offers a number of booklets which give useful further information. The booklets: 'The Mental Capacity Act 2005. Deprivation of Liberty Safeguards and You' and 'Deprivation of Liberty Safeguards: A guide for relevant person's representatives' can be found here.
What does the decision maker do?
- take into account the information the IMCA provides when working out whether the particular decision is in the best interests of the client (Section 10.13, Code of Practice)
- receive a report and closure form from the IMCA on completion of their role
This drama from the Social Care Institute for Excellence (SCIE) is set in a care home for older people. Peter Robinson has dementia and concern about his eating has led to a discussion by medical staff as to whether he should have a PEG (a tube for feeding directly into the stomach) fitted.
Mr Robinson has been assessed as lacking capacity to make this decision himself.
Because he has very limited contact with family, an IMCA is instructed by the doctor to represent him in this best interests decision.
The film shows the role of the IMCA which includes communicating with the person who lacks capacity, consulting others and writing a report. It also shows how important the care worker's knowledge of Mr Robinson is for the best interests decision.
Make a referral to this service
To make a referral go to the Referral page of this website
0845 832 0044
Monday to Friday 9am to 5pm
(calls from landlines will be charged at a local rate)