The Social Care Institute for Excellence highlights best practice in the use of independent mental capacity advocates
Independent mental capacity advocates (IMCAs) were introduced in England and Wales under the Mental Capacity Act in 2007.
The service is a legal safeguard providing trained advocates for adults who lack capacity to make important decisions, such as people with dementia or severe learning disabilities, and do not have family or friends to speak up for them.
So far, more than 15,000 adults have benefited from the support of IMCAs.
The law requires health and social care staff to involve an IMCA in some decisions when the person is unable to make the decision themselves and does not have family or friends to speak on their behalf. In this case, local authorities or health trusts making the decision on behalf of the person must instruct (the legal term for involving) an IMCA.
IMCAs must be instructed for accommodation decisions, such as possible moves to care homes longer than eight weeks or to hospital for more than four weeks.
IMCAs must be instructed if decisions are being made about medical treatment which could have serious consequences, such as choosing between different ones and deciding not to offer any.
The only exceptions are if urgent decisions have to be made, or if the treatment is covered by the Mental Health Act. Research shows that IMCAs are often involved in these treatment decisions:
● Do Not Attempt to Resuscitate (DNAR) orders.
● Dental treatment requiring a general anaesthetic.
● Cancer treatment.
● Surgery, including hip and knee operations.
● Providing artificial nutrition and hydration.
There is a legal power to involve IMCAs in care reviews where service users lack family or friends who can represent them. This includes the reviews local authorities should undertake annually and those within three months of a major change of service (as set out in the Department of Health’s Fair Access to Care Guidance).
Practitioners have a duty to consider whether a person would benefit from the involvement of an IMCA. Local authorities and health trusts should have policies covering when they involve IMCAs in care reviews – for example, stating that IMCAs will be instructed for the first review after a move for all eligible adults.
Local authorities also have the legal power to instruct IMCAs where they may need to take protective measures as part of safeguarding adult procedures. For safeguarding adults, IMCAs may be involved regardless of the level of involvement of family or friends. Again there should be a local policy (Scie and Adass have published an example policy in Scie guide 32).
There are additional IMCA roles linked to the Deprivation of Liberty Safeguards (see Scie’s IMCA web pages www.scie.org.uk/IMCA)
Expectations of IMCAs
Where an adult has been assessed as lacking capacity, responsibility for making best-interests decisions sits with the local authority or health trust. The IMCA’s role is to support and represent the person through the decision-making process and ensure the person’s views and wishes are heard.
They have powers to meet the person in private and view their health and social care records.
While retaining their independence, IMCAs should work in partnership with health and social care staff. This would include the IMCA passing on key information as they become aware of it, sharing tasks and minimising delays to the process.
IMCAs’ reports should highlight important issues that need to be considered when decisions are made and reflect the person’s views or wishes.
In most cases, the IMCA’s work will end when the decision has been made. But they must consider challenging decisions if they have concerns. These might be about whether:
● The person has capacity to make their own decision.
● Appropriate attention has been given the person’s own views and wishes.
● Less restrictive options have been adequately considered.
Ideally, these concerns are resolved informally but IMCAs do have the option to use formal complaints processes or to take issues to the Court of Protection.
In their contact with the individual, the IMCA may identify other issues which they believe require attention in relation to other aspects of the person’s care and support.
For example, they might identify that the person could benefit from other advocacy support, or involvement in specific activities (such as attending religious services).
Since the service began, many social workers, care managers and medical staff who have worked with IMCAs have valued the independent perspective they can bring and report that they have helped ensure decisions are centred on the person.
Case study: IMCA’s input changed hospital practice on advocates
Mrs Day was recovering from a hip operation after she fell in her own home.
A social worker met Mrs Day in hospital to look at accommodation arrangements after discharge. Because she was diagnosed with dementia the social worker undertook a capacity assessment, and found she lacked capacity to decide where she should live.
Although Mrs Day was clear about wanting to return home, she was unable to weigh up or understand the main risks
For example, she was adamant that she would not need help to wash herself even though it was necessary and she had accepted support for this on the ward.
The social worker learned that no one had visited Mrs Day in hospital apart from the care worker who had provided her support at home before the admission.
They spoke to a brother in another part of the country, who had not visited his sister for a couple of years because of his own health. This led the social worker to instruct an IMCA in relation to where Mrs Day should live.
The social worker felt pressure from the ward manager to make arrangements to move her to a residential care home where, they believed, it would be easier for her to access the correct aftercare. The social worker reviewed the community care assessment with input from the care worker.
The IMCA submitted a report which re-stated Mrs Day’s wish to return home. It also drew attention to the physiotherapist’s comments about Mrs Day’s compliance with her treatment and their belief that there was no reason this could not be continued in her own home.
The local authority made the decision to continue to offer support to Mrs Day in her own home. A review date was set for two weeks after she returned home and a further IMCA instruction was made so that she would have independent representation for the review.
The work was undertaken by the same IMCA who, having heard how much Mrs Day wanted to see her brother, advocated for the support to do so to be included in her care package.
They had also persuaded the hospital to acknowledge, in a response to a formal complaint, that an IMCA should have been instructed in relation to the hip operation.
The medical director said they would revise their procedures to ensure people who may be entitled to an IMCA were identified on admission.
● Be clear about whether clients are making their own decisions regarding their care and support or decisions are being made in their best interests after an assessment of capacity.
● Know when IMCAs must be instructed for accommodation or serious medical treatment decisions, and when they may be instructed as part of safeguarding adults or the care review process. Check whether you have local policies.
● Identify your local IMCA service and how referrals are made. These are listed on Scie’s IMCA web pages
● Instruct IMCAs as soon as it is identified that a person is eligible for the service. This will minimise the risk of delays to decision-making.
● Work in partnership with the IMCA service and try to resolve concerns before decisions are made. The IMCA must submit a report that local authorities and health trusts must consider.
● Where serious concerns cannot be resolved with the IMCA, consider making an application to the Court of Protection.
Author Department of Health, 2008
Title The second annual report of the Independent Mental Capacity Advocacy Service
Abstract IMCA providers submit information about each IMCA case into a national website. This report examines how and when IMCAs are involved in safeguarding adults. It identifies that inconsistent practice has developed since the introduction of this role.
Authors Townsley Ruth, Marriott Anna and Ward Linda
Title Access to Independent Advocacy: An Evidence Review
Publisher Office for Disability Issues, 2009
Abstract This review evaluates the evidence relating to the need, the benefits and the costs associated with independent advocacy for disabled people. It distinguishes between the differences advocates may make for the person through the process in addition to the outcomes.
Author Coyle Martin
Publisher Action for Advocacy, 2008
Abstract: This provides information about the advocacy workforce based on online interviews with 320 advocates. It shows that about half of advocates had at least a first degree and a similar portion had previously worked in a health or social care role.
This article is published in the 21 January issue of Community Care magazine under the heading How advocates can help social workers