The role of the 'IMCA' and the Local Authority

Whether the abbreviation IMCA is a mystery to you or familiar terminology can depend on your role in a local authority. Often the IMCA service is run by the local authority, although this is not exclusively the case.

This article explains the role of the IMCA and importantly when you need to refer or consult with an IMCA as part of the decision making process with regards to a service user's care. This is particularly important as local authorities and the NHS are under a statutory duty to involve IMCA's in certain situations. Who has the duty to make a referral for an IMCA depends on the decision being taken, but the duty generally falls to the person who has responsibility for the decision in either the Local Authority or Healthcare setting.

 

Meaning of an IMCA

'IMCA' means Independent Mental Capacity Advocate. It is a role that was created by the Mental Capacity Act 2005 ("MCA"). The role of the IMCA is to support people aged 16 or over who lack capacity where there are decisions to be made about their care and treatment and there is no family or suitable person other than professionals that can be involved in those decisions.

The starting point is therefore to ensure that there is an assessment of the individual's capacity for the particular decision that is to be taken. A person is assessed as lacking the ability to make a decision 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, and
• communicate their decision (this can be my any means possible).

 

Who needs an IMCA?

The IMCA service is a safeguard for those who have nobody else who is able or willing to be consulted (other than a paid professional) in relation to relevant best interest decisions when that individual lacks capacity.

A family member or friend may be unwilling to be consulted for a number of reasons, or there may be practical barriers such as distance or age/frailty that would prevent consultation. Equally there may simply be no-one. In some cases even where somebody does have friends or family an IMCA may still be involved because there are issues regarding adult protection, and in these situations the local authority or NHS have a power to make a referral to the IMCA service for an extension of the role of IMCA.

 

What does the IMCA do?

The role of the IMCA is to support the individual without capacity in the decision making process. The IMCA is (as the name suggests) independent from the local authority and NHS. In effect the IMCA stands into the role of a family member or friend as part of the best interest consultation process.

An IMCA will check whether the Best Interest decision making process under the MCA has been appropriately followed and whether a person's wishes and feelings have been considered. The IMCA may suggest other options that may not have been considered by the decision maker, and they will consider whether the option proposed is the least restrictive option in accordance with the MCA. In some situations they may ask for a second opinion if they feel this may be warranted. The IMCA can offer a view to the decision maker as to what they consider to be in the individual's best interests.

The decision maker must take into account information received from the IMCA when making Best Interest Decisions.  The IMCA's view is important but is not determinative.  It should be weighed up in the same way as all other views and facts in reaching a best interest determination.

If the IMCA wishes to challenge a decision that has been made then they may do so informally by meeting with the decision maker, or by a complaints process. An IMCA could also challenge a decision by taking the matter to the Court of Protection and approaching the Official Solicitor.

 

What decisions trigger the duty to refer to an IMCA?

Remember – The duty to consult with an IMCA only applies where there is no-one else for the decision maker to consult with about the individual's best interests (other than paid professionals) and only in the following situations: 

• The IMCA must be appointed where a best interest decision is going to be taken regarding a long-term care move (more than 28 days in hospital or 8 weeks in a care home). In certain circumstances an IMCA may be consulted for a care review if it is felt the IMCA can add a particular benefit. This scenario is likely to be of particular significance to those in the local authority.
• An IMCA must be consulted where there is a decision about serious medical treatment. Serious medical treatment is that which involves: giving new treatment; stopping treatment that has already started; or withholding treatment that could be offered where there is either a fine balance between the benefits and the burdens and risks of a single treatment or choice of treatments, or where there is likely to be "serious consequences". Serious consequences can include side effects, pain and distress, major surgery, or have life changing consequences (e.g. relating to fertility) for example.

However, where there are urgent decisions to be made about treatment and it is an emergency the IMCA does not require consultation. However if treatment is to continue, then a referral must be made as soon as possible afterwards.

An IMCA is not consulted about treatment under the Mental Health Act 1983 and the treatment is for a mental disorder. However, in some cases an IMCA may be involved where somebody is detained under the Mental Health Act if the treatment proposed relates to their physical rather than mental health.

As the IMCA's role is to provide a safeguard to people who lack capacity it is important that local authority and health staff are aware of when to refer somebody to the IMCA service and how to do so. This information should be included in the policies and procedures regarding the MCA and Best Interest Decisions of an organisation.

If an IMCA is not involved appropriately then this could be challenged at Court, either by way of Judicial Review of a decision or in the Court of Protection. It is always advisable to consider at an early stage whether an IMCA's input is required. If there are ongoing proceedings in relation to a person's care and welfare and an IMCA has not been consulted then proceedings may have to be delayed whilst this occurs; and there is a risk of criticism for the health body or Local Authority who had not complied with their duty in referring to an IMCA and the safeguards that this entails.

 

The Rights of the IMCA 

• An IMCA has the right to meet with the patient in private
• An IMCA has a right to meet with other people who may have information about the patient's care
• The IMCA should be given access to the patient's records and may take copies of records which relate to the Best Interest Decision.

 

Responsibility to Commission and Fund the IMCA Service

Section 35 of the MCA places the duty upon "responsible authorities" to make "reasonable arrangements" for IMCAs to be available to represent and support people who have no-one else other than paid professionals to support them in certain situations as described above. The "responsible authority" is defined in section 35(6A) as: "in relation to the provision of the services of IMCAs in the area of a Local Authority in England, that Local Authority".

The meaning of a Local Authority is also defined in the MCA at section 64(1). It encompasses a County Council in England where there are no District Councils, and a District Council.

The MCA makes it clear that the local authority must take steps to provide a sufficient IMCA service. At a practical level, this will include allocating appropriate funding to the service. Accordingly the MCA provides a power (under section 35(5) to fund the service, and the MCA Code of Practice reinforces this duty at paragraph 10.7 where it says: "Local authorities have financial responsibility for the service".

The MCA Code of Practice also states at paragraph 10.12 that the IMCA service which should be instructed is the one "which works wherever the person is at the time that the person needs support and representation".

 

Conclusion

As you can see, the role of the IMCA is an important safeguard within the MCA. Local authorities will need to make reasonable provision and ensure appropriate funding arrangements are in place for the IMCA service, to meet the needs of those who require this service. This will remain as challenging as ever in times of austerity and increasingly tighter financial constraints on budgets.

 

For further information, please contact Jane Bennett, Associate or Hannah Taylor, Senior Associate.