Use of mental capacity advocates in safeguarding cases falls for second year running

The use of independent mental capacity advocates (IMCA) to support people subject to safeguarding proceedings has fallen for the second year running, despite rising numbers of safeguarding cases.

The number of instructions by councils to IMCAs for safeguarding cases fell to 1,482 in England, from 1,533 in 2011-12 and 1,564 in 2010-11, revealed the Department of Health’s annual report on IMCA services in 2012-13.

This was despite increases in the number of safeguarding cases investigated by local authorities, of 11% in 2011-12 and 2% in 2012-13. In its 2011-12 IMCA report, the DH raised concerns about low numbers of advocacy instructions for safeguarding cases and urged safeguarding co-ordinators to review the basis on which they made referrals to IMCAs. It has repeated the recommendation in its 2012-13 report, which revealed that 55% of councils reduced the number of IMCA instructions they made in safeguarding cases last year.

No duty in safeguarding cases

Councils or NHS bodies have the power, but not the duty, to appoint an IMCA where a person is being subject to protective measures as part of an adult safeguarding investigation, and lacks the capacity to consent to at least one of these. Importantly, they can refer even if the person has friends or family willing to be consulted on the measures being proposed.

In 2012-13, of 86,820 completed safeguarding cases for which an outcome was recorded, 29% resulted in no further action, according to official figures from the Health and Social Care Information Centre. This suggests protective measures were taken in about 60,000 cases, but the number of IMCA instructions amounts to just 2.5% of this.

Possible reasons include a lack of awareness among social workers about when to refer to an IMCA, for example whether to do so if the person was already receiving general advocacy, found research undertaken on behalf of Gateshead council last year.

Concerns over care reviews

The DH also raised concerns about low levels of IMCA referrals in cases where people are having their needs reviewed following a change in accommodation to which they lacked the capacity to consent.

Though the number of IMCA referrals for relevant care reviews rose by 16% to 1,203, this was well below the number of IMCA referrals for the accommodation moves themselves, which stood at 5,353.

DH guidance states that it is good practice for a person to receive a care review within three months of a change in accommodation. However, while councils are under a duty to instruct an IMCA for changes in accommodation where a person lacks the capacity to consent and has no family or friends to support them, they only have a power to do so in the case of reviews.

“This raises questions,” said the DH report. “Are care reviews being consistently undertaken after moves? Why are four thousand people not receiving an IMCA to support and represent the person in subsequent reviews?”

The DH urged councils to carry out an audit of recent reviews to identify cases in which people could have benefited from an IMCA but did not receive one.

Fall in use of advocates in Dols cases

Overall, the number of IMCA instructions rose overall by 4% to 12,381. However, there was also a fall, of 3%, in the numbers instructed in Deprivation of Liberty Safeguards cases.

The DH raised particular concerns about the fall in the number of instructions under section 39D of the Mental Capacity Act 2005. These involve cases where a person is subject to a Dols authorisation and an unpaid person, typically a family member or friend, has been appointed to speak up for them as their relevant person’s representative (RPR).

In these cases, an IMCA must be appointed if requested by the person or the RPR, or where the relevant local authority believes an IMCA is necessary to help the person exercise their right to challenge an authorisation or have it reviewed.

“IMCAs can support family members about the right to challenge the deprivation of liberty authorisation,” said the DH report. “They can also negotiate less restrictive conditions to remove the deprivation, they can ask for independent mediation and/ or they can challenge the DOL in the Court of Protection at no cost. These are all important safeguards that IMCAs need to consider responsibly, for each person they support.”