Government sounds third warning over lack of mental capacity advocacy referrals for safeguarding

Referrals to independent mental capacity advocates (IMCA) for people going through safeguarding are too low, the government has warned for the third time.

While annual IMCA referrals rose for both safeguarding cases in 2013-14 – following falls in 2012-13 – they remained too low as a proportion of overall case numbers, said the Department of Health.

In its annual report on IMCA service, the DH said that councils should review their policies so that people who would benefit from an IMCA in a safeguarding case received advocacy. This is the third consecutive annual IMCA report in which the DH has warned about low access to advocacy in safeguarding cases.

The role of the IMCA

The Mental Capacity Advocate sets out a number of circumstances under which local authorities or NHS bodies have a duty, or a power, to appoint an IMCA to support people who lack capacity to take relevant decisions.

In safeguarding cases, councils or NHS bodies may appoint an IMCA where an alleged abuse victim, or abuser, lacks capacity to consent to protective measures proposed for them. This is regardless of whether the person has someone else available to support them with the decision.

Source: Department of Health (2015), The seventh year of the independent mental capacity advocate (IMCA) service

Despite the rise in case numbers from 2012-13 to 2013-14, the 1,730 referrals represent just 7% of the approximately 24,000 completed adult safeguarding referrals made in 2013-14 where the alleged victim lacked capacity to make decisions about safeguarding.

Of completed referrals where the victim lacked capacity to make decisions, just under half of people were supported by family, friends or an advocate, according to figures collected from councils by the Health and Social Care Information Centre.

Cause for concern

The DH said that, given that the issue of low advocacy referrals in safeguarding cases had been raised in its previous two annual IMCA reports, the relatively low rates in 2013-14 were a cause for concern.

“It is therefore now essential that more is done to improve links between safeguarding adult boards and IMCA services,” it said.

The MCA code of practice states that councils and NHS bodies should take a strategic approach to appointing IMCAs in safeguarding cases by establishing a policy setting out criteria for appointment.

The DH said authorities should ensure they have such a policy and review criteria for appointment to ensure that people who would benefit from an IMCA have the opportunity to do so, particularly where people have no appropriate family member or friend to support them.

Dols cases

Last year also saw a rise in the number of cases where IMCAs were appointed for people subject to, or being assessed for, the Deprivation of Liberty Safeguards, following a fall in 2012-13. This was largely driven by a rise in the number of IMCAs appointed under section 39D of the Mental Capacity Act 2005.

This involves cases where a person subject to Dols is being supported by an unpaid relevant person’s representative (RPR), typically a family member or friend. In such cases, councils must instruct an IMCA when requested to by the person or the RPR, or where the authority believes that an IMCA is necessary to help the person exercise their rights, including to have their case reviewed.

However, despite the rise in the number of 39D cases, the DH said there was anecdotal evidence that the section was not being used appropriately, with some councils referring all cases and others none to an advocate.

It said all councils should review their procedures to ensure that the right people were being given access to a 39D advocate.