IMCA advocates have powers as laid down under the Mental Capacity Act (MCA)

·        To see the person they are representing in private

·        To have access to the person’s medical and health records

·        To request further medical opinions

This guidance gives more detail in the following pages about how IMCA will work in practice. To refer a person to IMCA, please see the contact details on the back page of this guidance.

(Note: The government may continue to extend the role of IMCA, which is allowed for within the regulations.)

1.   Who is IMCA for?

IMCA is for people who are deemed to lack capacity to make decisions about

·        Serious medical treatment

·        Moving into, or between, care settings (including hospital)

·        Representation at Care Reviews

·        Adult Protection proceedings

In order to get support from IMCA, a person lacking capacity must also not have:-

·        Family or friends who are deemed appropriate to consult. (N.B. The pilot IMCA evaluation suggested that whilst most people did have a family member or friend, a majority (60%) were deemed inappropriate to consult.)

·        Or be self funding (for Serious Medical treatment)

N.B. In Adult Protection Cases, an IMCA may be appointed even where family members or others are available to consult.

It is the doctor, or local authority who deems whether the treatment or move goes ahead. The IMCA gathers information about the person’s wishes, values and circumstances as well as identifying possible alternative courses of action, in order to inform the final decision.

a.  Capacity

For the purposes of the Mental Capacity Act 2005 the definition of a person who lacks capacity is as follows:-

A person lacks capacity in relation to a matter, if at the material time he/ she is unable to make a decision by him/herself in relation to the matter because of an impairment of, or disturbance in the functioning of, the mind or brain.

If it is determined that a person lacks capacity in relation to a decision about the scenarios above, then IMCA should be contacted.

b.  Serious Medical Treatment

Section 37(4) of the Act provides that “Serious medical treatment” means treatment which involves providing, withholding or withdrawing treatment of a kind prescribed in regulations. It is likely that they are likely to include treatments with serious or irreversible consequences where:

·        The balance of the expected benefit for the patient against the risk and invasiveness of the treatment is unclear; or

·        There is a fine balance between the choice of treatments available e.g. chemotherapy and surgery for certain types of cancer.

·        The Code of Practice is likely to include examples such as:-

·        E.C.T. (Electo-convulsive therapy) for non-detained patients.

·        Therapeutic sterilisation

·        Major surgery

·        Withholding or withdrawing of life sustaining treatment.

·        Abortion or caesarean section.

·        Major Amputation

·        Chemotherapy and surgery for cancer

·        Witholding or stopping artificial nutrition and hydration.

·        Treatments that will result in the permanent loss of hearing or sight.

The list is not exhaustive as some situations which may appear minor, may be considered major if they have specific implications, e.g. eye surgery for a person with sight in one eye.

The only situation where the duty to seek advice from an IMCA could be dispensed with is where the proposed treatment is necessary in an emergency, for example to save the person’s life or prevent a serious deterioration in his/her condition. (Section 37(4) of MCA Act 2005)

Treatment which is regulated by part IV of the Mental Health Act 1983 cannot be included in the definition of SMT as the MHA provides its own safeguards. It applies to all treatments given for mental disorder under the MHA and also to treatments for Mental Disorder under S57 of the MHA, whether or not the person is detained under the Act. At present these treatments include:

·        Psychosurgery

·        Surgical implantation of hormones to reduce male sex drive.

In neither case can the treatment be given without the person’s consent, so are not included under SMT.

c.  Moving to a Care Home or Hospital

IMCA should be contacted whether the person is going into a care home or hospital for the first time, or moving from another care home or hospital.

A Care Home may include warden assisted accommodation, supported housing and other arrangements made by the local authority. This also includes private sector housing provided by the local authority.

The duties to involve IMCA are triggered where:

·        An NHS body proposes to place a person, who lacks capacity to agree, in a hospital for a period likely to exceed 28 days or care home for a period likely to exceed 8 weeks.

·        An NHS body proposes to move the person to another hospital for a period likely to exceed 28 days or another care home for a period likely to exceed 8 weeks.

·        During an assessment under the NHS and Community Care Act 1990 of a person who lacks the capacity to agree to accommodation arrangements, a local authority proposes to provide community care services in the form of residential accommodation and to place the person in accommodation for a period likely to exceed 8 weeks or where a local authority proposes to move the person to another care home for a period likely to exceed 8 weeks.

If a short term stay is subsequently extended beyond the above timescales, IMCA should be involved as soon as it is known.

If the proposed placement needs to be made as a matter of urgency then the duty to instruct IMCA can be dispensed with.

Where the person is to be detained under the MHA 1983, IMCA does not need to be consulted.

Responsible bodies do not have to involve an IMCA if the person is to be required to stay in accommodation under the MHA 1983.

However, if discharged from detention, they have the right to an IMCA in future accommodation decisions ( if they meet the usual conditions set out in the MCA 2005.)

The Act allows for regulations requiring IMCA in relation to placements in hospital and care homes to be extended in the future.

d.  Care Reviews

The relevant local authority or NHS body have a duty to call upon an IMCA where under qualification rules exist, there is to be:

·        A review of arrangements as to accommodation, whether under a care plan or otherwise.( added under expansion of role regulations 30^th October 2006) and

The NHS body or local authority is satisfied that it would be of particular benefit to the person to be represented by IMCA

e.  Adult Protection Cases

Where the local authority or NHS body proposes to take protective measures in relation to a person lacking capacity;

·        Following the receipt of an allegation or evidence that the person is being, or has been abused or neglected by another person, or that the person is abusing, or has abused, another person and

The NHS body or local authority is satisfied that it would be of particular benefit to the person to be represented by an IMCA.

The local authority or NHS body must take into account submissions made by IMCA in relation to making any decision leading from an accommodation Care Review, or protective measure.

(Note ( f) below does not apply to Adult Protection Cases.)

f.  Lacking appropriate family or friends.

A person can only get support from IMCA if they lack family or friends who are deemed inappropriate, by the decision maker, to consult.

Some examples as laid down in the Code of Practice are:

·        An elderly person with dementia may have a child living thousands of miles away, making it impracticable to consult with them.

·        Relatives living in the UK may have little or no contact with the person.

·        Relatives may have no limited or no interest in the person’s welfare.

·        A person may have friends and neighbours who may know the person’s wishes or feelings, but not be willing or able to be consulted about the particular decision.

g.  Other people who exclude an IMCA from involvement

·        Where a person has previously named a person to be consulted in matters affecting his/ her interests and that person is able and willing to be consulted

·        Where there is an attorney appointed under a Lasting Power of Attorney.

·        Where there is an attorney appointed under an Enduring Power of Attorney and the attorney continues to manage the person’s affairs.

·        Where a deputy has been appointed by the Court of Protection.

h.  Self –funding

·        Persons who pay for their own medical treatment or care cannot access IMCA

·        Persons who intend to fund their own care, but have not yet started to do so, may be eligible for IMCA

·        People who self fund in long term accommodation have the same rights to an IMCA if the local authority,

a)    carries out an assessment under S47 of the NHS and Community Care Act 1990 and

b) decides it has a duty to the person(under S21 or S29 of the    National Assistance Act 1947 or S117 of the MHA 1983.)

i.  Response Time

Northamptonshire IMCA service aims to make initial contact within 24 hours of receiving a referral (Mon-Fri 9a.m. to 5 p.m.)

We would expect to see the person referred, or the decision maker within two working days of the receipt of the referral.

2.  Powers and responsibilities of IMCA advocates

IMCA advocates are entitled:

·        To see the person they are representing in private (unless the person demonstrates in some way they are uncomfortable).

·        To have access to the person’s medical and health record and to take copies from these.

·        To request further medical opinions.

a.  Private access to person’s requiring representation.

IMCA advocates are entitled to meet with the person they are representing in private. This means a private room where their conversation cannot be overheard or monitored. A bed on a multi-bed ward would not be acceptable unless:-

·        The person refuses the option of privacy.

·        Where it medically unsafe, or physically impossible to move the person from their bed.

·        If a chaperone is considered suitable, one will be requested.

·        It may be necessary for an interpreter or specialist in specific communication methods to be present.

b.  IMCA advocates’ access to medical and social care records.

IMCA advocates are entitled to inspect and if they wish, to take copies from the records of the individuals they are representing.

It will be considered good practice to access, examine and request copies of relevant information in the presence of a staff member.

Where and advocate needs to access individual records, they will complete a request form and forward this to the consultant, senior nurse or social work team manager, for counter-signature. The form will then be forwarded to the appropriate department holding the record, together with a request to arrange access a.s.a.p.

Northamptonshire IMCA Service details in its Operational Policy, clear instructions for dealing with confidentiality of records.

c.  Obtaining further medical opinions.

IMCA advocates are entitled to request further medical opinions if they believe this will help them to gain a clearer understanding of a person’s needs, or of the treatments or outcomes which may be available.

d.  Compliments and Complaints.

Northamptonshire IMCA Service welcomes feedback .Please help us to continually improve and evaluate our service by completing and sending us a feedback form.

In the first instance please address any questions, concerns or compliments to:

Alison Robinson

IMCA Manager

E-mail- alisonimca@btconnect.com

If you have a complaint and your issue is not resolved, please address any concerns to:

The Chairman
 at our HQ

or email:

chairmanuss@btconnect.com


 

Information sourced to produce this guidance came from:-

Mental Capacity Act 2005

Mental Capacity Act 2005 Code of Practice.

Mental Capacity Act 2005 (IMCA)(Expansion of Role) Regulations 2006

Mike Pochin - Dorset Advocacy IMCA Manager. (Many thanks, Mike)