Advocacy under the Mental Capacity Act
The Mental Capacity Act 2005 introduced the role of the independent mental capacity advocate (IMCA) to be a legal safeguard for people who lack the capacity to make specific important decisions such as where they live and about serious medical treatment options.
Who IMCAs are for
The IMCA service must be 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 -
- a long-term care move
- serious medical treatment
- adult protection procedures
- a care review
Such a person will have a condition that is affecting their ability to make decisions. Many factors can affect a person’s capacity such as -
- acquired brain injury
- learning disability
- mental Illness
- dementia
- effects of alcohol or drug misuse
Capacity can also be affected by other illness, trauma or other factors. A person’s capacity may vary over time or may depend on the type of decision that needs to be made.
Assessing lack of mental capacity
The Mental Capacity Act (MCA) requires ‘decision-specific’ assessments of capacity. A person is assessed as lacking the ability to make a decision, and needing an IMCA, if they cannot do one or more of the following -
- understand information given to them about the decision
- retain the information for long enough to make the decision
- use or weigh up the information as part of the decision-making process
- cannot communicate their decision (by any means, for example talking, sign language or blinking)
The assessment must be specific to the decision which needs to be made and not a generic test of capacity.
Role of the IMCA
The IMCA will -
- establish the referred person’s preferred method of communication
- meet with the referred person and use a variety of methods, as appropriate, to ascertain their views
- consult with staff, professionals and anyone else who knows the person well who are involved in delivering care, support, and treatment
- gather any relevant written documents and other information
- attend meetings to represent the person raising issues and questions as appropriate
- present information to decision-maker verbally and via a written report
- remain involved until decision has been made and be aware that the proposed action has been taken
- audit the best interest’s decision-making process
- challenge the decision if necessary
Getting an IMCA
Getting a referral for an Independent Mental Capacity Advocate is usually initiated by the ‘decision maker’. This is person in authority who has ultimate responsibility for making best interest decisions for the person involved.
For serious medical treatment decision - this is usually the consultant
For accommodation decisions - this is usually the care manager
Others can make a referral, but the decision maker should be made aware. Before being referred the client must have been assessed and deemed to lack capacity.