The Department of Health has renewed warnings over a lack of access to independent advocacy for people who lack mental capacity.
In a circular published this week, the DH said fewer people than expected were receiving the services of an independent mental capacity advocate (IMCA), to support them in important decisions about medical treatment or accommodation.
Under the Mental Capacity Act 2005, councils and NHS bodies have a duty to instruct and consult an IMCA in such decisions where the person lacking capacity has no family or friends to support them.
Extension of role
The warnings echo concerns raised by the DH last June, and come ahead of the extension of the role of IMCAs next week to support people who lack capacity and are assessed as requiring treatment or care that involves a deprivation of liberty.
The deprivation of liberty safeguards, which come into force on 1 April, are designed to ensure liberty is only deprived in the best interests of the service user, to prevent arbitrary detention and allow people to challenge decisions.
Their overall purpose is to ensure treatment and care plans comply with the European Convention on Human Rights.
They were inspired by the case of HL, an autistic man who was detained unlawfully in Bournewood Hospital, Surrey in 1997.
Under the safeguards, a hospital or care home – the “managing authority” – must apply to a primary care trust or local authority – the supervisory body – respectively for a deprivation of liberty.
The supervisory body must then conduct six assessments to confirm that the deprivation is lawful:-
- An age assessment, to confirm that the person is over 18.
- A no refusals assessment, to confirm the treatment or care decision does not conflict with a decision made on the person’s behalf by an attorney or deputy, or an advanced decision the service user had made themselves when they possessed capacity.
- A mental capacity assessment, to confirm the person lacks capacity to consent to the treatment or care plan.
- A mental health assessment, to check whether they have a mental disorder.
- An eligibility assessment, to confirm whether they are eligible to be deprived of their liberty.
- A best interests assessment, to confirm that the deprivation is in their best interests, is necessary to prevent them coming to harm and is proportionate.
All six tests must be met
Only if all six tests are passed can an authorisation, which must last no longer than 12 months, be granted by the PCT or council.
In emergencies, a care home or hospital can order an urgent authorisation to deprive someone of their liberty but must then secure a standard authorisation from the PCT or council within seven days.