People who lack mental capacity are being denied their right to independent advocacy over serious medical treatment because of doctors' opposition and lack of awareness.
That was the message from a Department of Health review of the first year of the Independent Mental Capacity Advocate (IMCA) service, which was introduced in April 2007 across England.
Under the Mental Capacity Act 2005, NHS bodies have a duty to refer people who lack mental capacity and have no family or friends to support them to an IMCA when they are proposing to take a decision about serious medical treatment.
These include cases of starting, stopping or withholding treatment, where there is a "fine balance" between likely benefits and risks.
The DH report said there had been a disappointingly low number of referrals - 675 - between April 2007 and March 2008, and said there was evidence this reflected a lack of awareness among medical staff.
However, it added: "There are some examples of doctors who think a discussion with a non-medically qualified person is a waste of their time."
It said that doctors who had referred people to IMCAs overwhelmingly agreed that advocates do have a part to play in decision-making, including in ensuring information about service users, such as their past wishes and preferences, is considered.
Toby Williamson, associate head of service improvement at the Mental Health Foundation, said: "Referral is not a choice, it's what the law says. It's incumbent on professional associations to encourage their members into abiding by the law and recognising that the IMCA has a beneficial role for those who lack capacity."
He suggested that those doctors who had used IMCAs should explain to other doctors what their benefits were.
Professor John Saunders, chair of the ethics committee at the Royal College of Physicians, said the level of IMCA involvement in serious decisions was "disappointing", but said he doubted that doctors' attitudes were the major problem.
"The biggest problem is that many doctors are not sufficiently aware of the duty to refer, nor of how to access the IMCA," he said.
Saunders called for "targeted information to doctors in clinical practice", and said there was also a case for "targeted education" in relation to IMCA involvement in resuscitation decisions following a heart attack.
Department of Health laments slow progress on Mental Capacity Act
Short-term contracts hamper take-off for advocacy services
Independent advocates and the Mental Capacity Act
Information and education needed to raise awareness in doctors of their legal duty
● 5,179 eligible referrals of which 3,047 concerned decisions over changes in accommodation.
● 58% of referrals made by social workers and 16% by doctors.
● 37% for people with dementia and 21% people with learning disabilities.
● 39% of service users were in hospital and 30% in care homes at the time the referral was made.
➔ Annual report available from link at www.communitycare.co.uk/imca