Independent mental capacity advocates (IMCAs) need more power to challenge social care professionals’ practice concerning people who lack the capacity to make decisions for themselves, a social worker has told the House of Lords.
Elmari Bishop said IMCA services needed to be commissioned independently of local authorities to enable advocates to effectively challenge the decisions of council practitioners, for example where decisions are made to move people into care homes against their wishes.
“I think [IMCAs] are a really valuable resource, but they do not always have enough power to challenge,” she told the House of Lords committee examining the implementation of the Mental Capacity Act 2005 last week.
IMCAs must be appointed to advocate for people facing a change of accommodation or serious medical treatment, when they lack capacity to make these decisions and have no family or friends to speak on their behalf. They must also be appointed by councils to represent people being assessed under the Deprivation of Liberty Safeguards (Dols), where the person has no one else to consult, or to help family members represent their loved-ones.
In some cases social workers have made complaints about IMCAs and the IMCAs have been told to back off.” Social worker Elmari Bishop
‘Social workers have made complaints about critical IMCAs’
“In some cases social workers have made official complaints about IMCAs and the IMCAs have been told to back off,” she said. “There are cases where IMCAs try to challenge, but the social workers just seem to be more powerful.”
Bishop linked this to the fact that councils commissioned IMCA services and that people were often referred to IMCAs by council-employed social workers.
“The IMCAs should be commissioned completely independently and there should be easier ways of accessing them,” she said.
“There are certain points where there should be access where there is none.”
Her call for easier access to IMCAs was echoed by Mark Neary, whose son Steven was unlawfully deprived of his liberty in a care home by Hillingdon Council for nearly a year. Neary said that the IMCA appointed to support them was totally independent and was critical in enabling him to challenge Hillingdon’s decision-making through the Court of Protection. However, he said people needed direct access to IMCAs, without referral from the relevant council, so that they can challenge local authority decision-making under the Dols more quickly.
“Steven was coming up for the fourth renewal of his deprivation of liberty before we got an IMCA. It took from April to November, and the judge said if we had had an IMCA back in April, Steven would have been home within weeks, but there was no access whatever for
me or Steven to approach the advocacy service direct.”
Clear definition of deprivation of liberty needed
Both Bishop and Neary said that the government needed to produce a clear, statutory definition of what constituted a deprivation of liberty, particularly to help hospitals and care homes know when they need to apply to councils for a Dols authorisation.
Currently there is no statutory definition and what constitutes a deprivation of liberty is shaped by case law.
Bishop said that hospitals and care homes received “so many conflicting messages” about what constituted a deprivation of liberty, with case law specifying different criteria for care homes and psychiatric hospitals.
Even among best interests assessors, whose role is to determine whether a person is being deprived of their liberty, “there are so many different ideas of what is and is not a deprivation of liberty”, said Bishop. She said this was leading to people not receiving the protection of the Dols when they should do.
“It should still be left to the best interests assessor to decide in the end whether it is a deprivation of liberty or not, but from the start there needs to be much clearer guidance for the care home manager or the hospital manager,” she added. “They do not get the training in case law that best interests assessors receive, so they need much clearer guidance about when it needs to be requested.”
Lack of legal penalties for breaching MCA
Bishop also warned that councils lacked incentives to comply with the Mental Capacity Act because of the lack of consequent legal sanctions, a point also made by Alex Rook, partner in public law at legal firm Irwin Mitchell.
Rook said the Court of Protection was primarily focused on determining what was in a person’s best interests, and less concerned with what had gone wrong previously with the way they had been treated by public bodies or services. It also normally did not impose costs orders on public bodies found to have breached the Mental Capacity Act in cases involving a person’s welfare.”
The unfortunate consequence of that is that where there is non-compliance, cost orders do not flow from that quite often,” said Rook. “That means that there is an element of getting away with it, rather than a brighter light being shone on that authority, saying, ‘look, that was not right’, and therefore encouraging better practice going forward.”
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