Our Independent Mental Health Capacity Advocates (IMCA’s) must be instructed, and then consulted for people who lack capacity and do not have anyone else to support them.
Our IMCAs are advocates who provide a legal safeguard for individuals who lack the ability to make important decisions. Our IMCAs support individuals who do not have any family or friends that are able to represent them.
The IMCAs role is to ensure that any decisions that are made on behalf of a person who lacks capacity are done so in the best interests of the person, and to ensure the individuals views are represented to those who are working out their best interests.
This can include working within a team of social care and medical professionals to make the best decision for that person. The role is different to many others in the advocacy sector.
- Provide statutory advocacy
- Are instructed to support and represent people who lack capacity to make decisions on specific issues
- Have a right to meet the person they are supporting in private
- Are allowed access to relevant healthcare records and social care records
- Provide support and representation specifically while the decision is being made
- Acts quickly so their report can form part of decision-making
When an IMCA must be instructed
Due to the Mental Capacity Act of 2005 it is a statutory requirement that an IMCA must be instructed in the following instances:
- If the NHS is proposing to provide, withhold, or stop serious medical treatment
- If an NHS body or local authority is proposing to arrange accommodation (or a change of accommodation) in hospital or a care home
- If a person stays in a hospital longer than 28 days or If a person stays in a care home for more than eight weeks
- Prior to a decision being made on DNACPR (Do not attempt cardiopulmonary resuscitation)
- When a person requires a 39AIMCA in respect of a DoLs (Deprivation of Liberty) authorisation where there are no family or friends able to consult.
The Mental Capacity Act 2005 places the responsibility on health and social care professionals to ensure an IMCA is instructed to support an individual who lacks capacity in relation to:
- Care reviews, when no one else suitable is able to consult
- Reviews undertaken by the NHS for people receiving continuing healthcare
- Care plan reviews taking place for inpatients
- Safeguarding or adult protection cases, whether or not family, friends or others are involved
The regulations set out in the Mental Capacity Act 2005, specify that local authorities and the NHS have powers to instruct an IMCA during the adult safeguarding process; if the following requirements have been met.
Safeguarding measures are being put in place in relation to the protection of vulnerable adults from abuse:
- A person who may have been abused
- A person who has been neglected
- A person who is alleged to be the abuser
- Where the person lacks capacity
Once these criteria have been met, the NHS or local authority have a legal obligation to instruct an IMCA.
The Deprivation of Liberty Safeguards (DoLS)
The Deprivation of Liberty Safeguards (DoLS) give additional rights and responsibilities to an IMCA, other than those assigned to them by the Mental Capacity Act 2005. Chapter 3 of the DOLs Code of Practice provides a detailed list of those rights and responsibilities.
The Deprivation of Liberty Safeguards (DoLS) is included in the Mental Capacity Act 2005 and came into force on 1st April 2009.
The safeguards are designed to protect the interests of vulnerable people and to:
- Ensure they can be given the care they need in the least restrictive regimes.
- Prevent arbitrary decisions that deprive people of their liberty.
- Provide safeguards for people.
- Provide them with rights of challenge against unlawful detention.
- Avoid unnecessary bureaucracy.
In order for our advocates to provide this service, clients must meet the following criteria:
- Aged 18 and over
- Who has a mental disorder, such as dementia or a significant learning disability.
- Who lacks the capacity to give informed consent to the arrangements made for their care and/or treatment
- For whom deprivation of liberty (within the meaning of Article 5 of the European Convention on Human Rights) is considered, after independent assessment, to be necessary in their best interests and to protect them from harm.
- The safeguards cover patients in hospitals, and people in care homes registered under the Care Standards Act 2000, whether placed under public or private arrangements.
If you would like any more information about IMCA and Dols please contact us on 01745 813999 or via our contact form here
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