What Does Imca Stand For?
- 1 How do I refer to the IMCA?
- 2 What are the 2 acid test questions under DoLS?
- 3 Can IMCA see case notes?
- 4 What is the role of 39D IMCA?
- 5 What are the 4 steps of establishing capacity?
- 6 Who is the IMCA instructed by?
- 7 What is a DoLS assessment?
What does IMCA stand for in dementia?
Best interests checklist: 5 things to consider when making a decision for someone with dementia –
Consider whether the person will have capacity later and whether the decision can be put off until then. This is crucial because a person with dementia may have good and bad days. They may be able to make the decision on another day. Encourage and support the person with dementia to take part in making the decision and to share their views, where possible. Consider the person’s past, present and future wishes and feelings. Take into account other people’s views, such as carers, friends, family members and any attorney or deputy the person may have. Note that decisions can’t simply be based on the person’s age, their behaviour or the fact that they have dementia (or any other condition). Take into account all the relevant circumstances when making a decision – for example, what things the person would have considered if they’d been able to make the decision themselves. If the decision involves life-sustaining treatment, there are other special issues that need to be considered. For example, checking whether the person has made an advance decision, considering all the possible treatment options, and not being motivated by a desire to end a person’s life. If there is any doubt about the person’s best interests, the case should be referred to the Court of Protection for it to decide (see ‘’ for contact details).
The type of decision that needs to be made will affect who should make the decision. The following list has examples about who can make certain types of decisions for a person with dementia:
Everyday decisions about washing, dressing, eating or activities – whoever is with the person at the time can make these decisions, such as a carer, family member or care worker. Complicated decisions about finances or property – if the person has an attorney or deputy for property and financial affairs, they will make these decisions. Complicated decisions about where the person will live, their care or treatment – if the person has an attorney or deputy for health and welfare, they can make the decision. If not, a professional such as a social worker or doctor will make the decision. Decisions about life-sustaining treatment – if the person has appointed an attorney for health and welfare and given them this power, the attorney they may be able to make the decision. If the attorney can’t make the decision then it will be made by an appropriate doctor or consultant. If there isn’t someone who knows the person with dementia well, the local authority (council) may appoint an independent mental capacity advocate (IMCA) to speak on the person’s behalf. This will happen when a major decision needs to be made, such as whether the person should move to a care home or have serious medical treatment. An IMCA is also sometimes involved if there is conflict between family members.
If the decision is complicated or involves life-sustaining treatment, you will have to check if the person has put plans in place. The person has a right to be involved in decisions that are made about them (unless that’s inappropriate, for example if someone refuses to be consulted).
How do I refer to the IMCA?
Make a referral If you are unsure whether a referral is appropriate, please contact us on 0300 323 0965 for more advice. Upon receiving a referral, if the service user is eligible for the service, an IMCA will make contact with them within 3 working days. For DoLS cases, the IMCA will make contact sooner.
What is the IMCA mental capacity?
Independent mental capacity advocate (IMCA) The Mental Capacity Act 2005 introduced the role of the independent mental capacity advocate (IMCA). IMCAs are a legal safeguard for people who lack the capacity to make specific important decisions: including making decisions about where they live and about serious medical treatment options.
- IMCAs are mainly instructed to represent people where there is no one independent of services, such as a family member or friend, who is able to represent the person.
- Explore the role of IMCAs, and who is entitled to IMCA support.
- More specific details about what family and friends, doctors, social care staff and others need to know about IMCAs.
This good practice guide contains information on issues to consider when reviewing IMCA contracts, a revised example service specification, suggestions for assessing quality, an example engagement protocol and suggested tender requirements. This guide aims to support the work of local authority and NHS staff who may need to instruct and work with IMCAs in relation to accommodation decisions and care reviews.
This good practice guide is primarily aimed at professionals who have responsibilities in relation to safeguarding adults and may be involved in safeguarding adults proceedings. It includes information on who can be represented by IMCA, who and when an IMCA can be instructed, sharing and accessing information and resources.
This practice guidance describes the role of Independent Mental Capacity Advocates (IMCAs) and paid representatives in the Mental Capacity Act Deprivation of Liberty Safeguards (MCA DOLS). : Independent mental capacity advocate (IMCA)
Can an IMCA make decisions?
What is an Independent Mental Capacity Advocate (IMCA)? – An IMCA is an advocate who has been specially trained to support people who are not able to make certain decisions for themselves and do not have family or friends who are able to speak for them.
- IMCAs do not make decisions and they are independent of the people who do make the decisions.
- An IMCA can support anyone who is over 16 years old and who has been assessed as ‘lacking capacity’.
- This means they are not able to make or understand a particular decision about their life because the way their mind or brain works has been affected by an illness, an injury or a disability.
They must have been assessed by a doctor or a social worker at the time the particular decision needs to be made. The person might have dementia, learning disabilities, mental health problems, a brain injury or they might have had a stroke. A lack of capacity can be temporary such as when someone has been in an accident and is unconscious.
What is the difference between IMCA and RPR?
Legal News The Mental Capacity Act 2005 ensures that people who lack the mental capacity to make specific important decisions must have a party to do so on their behalf. This could be a Relevant Persons Representative (RPR), or an Independent Mental Capacity Advocate (IMCA). Article 5(4) of the European Convention of Human Rights sets out the following: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” From this arose the issue of depriving those with mental incapacity (for their own safety) of their liberty, and ensuring their detainment was necessary. To provide for this S 21 A of the Mental Capacity Act 2005 was adopted. This section allows the Court of Protection to make decisions regarding the lawfulness of P’s detention pursuant to a Standard Authorisation. Following the case of P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council & Anor UKSC 19, the number of applications under Schedule A1 of the Mental Capacity Act 2005 has increased. The person these proceedings relate to often cannot make an application to the Court, and so the following persons often have to do so on their behalf:
Essentially, P and his/her RPR can make an application to the Court of Protection at any time without permission.
- The case of JM & Ors, Re Mental Capacity Act 2005 EWCOP 15 emphasised the importance of ensuring there is “someone” to challenge the detention:
- “an avoidant approach that prioritises budgetary considerations over responsibilities to vulnerable people who the Supreme Court has held are being deprived of their liberty.”
- The obligation:
At paragraph 19, Charles J found that the Secretary of State had demonstrated: This emphasised that third parties are increasingly going to be relied upon to bring matters before the Courts. In the case of AJ (Deprivation Of Liberty Safeguards) EWCOP 5, the following was established: “114.
- Secondly, professionals need to be on their guard to look out for cases where vulnerable people are admitted to residential care ostensibly for respite when the underlying plan is for a permanent placement without proper consideration as to their Article 5 rights.” “118.
- Sixthly, an IMCA appointed under section 39 D must act with diligence and urgency to ensure that any challenge to an authorisation under schedule A 1 is brought before the court expeditiously.
Failure to do so will lead to the evaporation of P’s Article 5 rights.”
- The differences between a RPR and IMCA:
- The sections can be found :
- “The RPRs obligations are as follows:
In simple terms, where there is a sustained objection by X to the placement in a care home or hospital the above persons are obligated to consider if S 21 A proceedings are required. Considerations must be given to the challenge to decide if the action is appropriate and necessary. “Whereas RPRs have a wide role to represent and support P in matters relating to or connected with Schedule A1 MCA the s.39D IMCA’s role is much more narrow and is confined to the specific duties in s.39D (7), (8) and (9) MCA”. Briefly, the roles are as follows: 1. Section 39A IMCAs are instructed when there is an assessment in response to a request for a standard authorisation, or a concern about a potentially unauthorised deprivation of liberty.2. Section 39C IMCAs cover the role of the relevant person’s representative when there is a gap between appointments.3. Section 39D IMCAs support the person, or their relevant person’s representative, when a standard authorisation is in place. Further to this:
In contrast, a s.39D IMCA is only required to take such steps as are practicable to help P or an RPR to apply to court if it appears to the IMCA that P or the RPR wishes to exercise that right”.
- When an RPR should be appointed:
- “A person is only eligible to be an RPR if they will, as part of supporting the relevant person, take appropriate steps to support the person to challenge any authorisation granted under Schedule A1 (paragraph 82);”
Baker J stated as follows: “RPR should only be selected or confirmed by a BIA where he or she satisfies not only the criteria in regulation 3 of the Mental Capacity (Deprivation of Liberty: Appointment of Relevant Person’s Representative) Regulations 2008 but also the requirements of paragraph 140 of Schedule A1 of the MCA.
- Regulation 3 can be found
- When an IMCA should be appointed:
Baker J stated as follows: “The functions of a section 39D IMCA are as set out in that section, as supplemented by Schedule A1, and concern matters relating to the deprivation of liberty provisions under the Schedule. An IMCA appointed under section 39D does not have a broader, general role of representing or supporting P, and is not under a general duty to assist in determining what is in P’s best interests but, rather, to perform the specific functions set out in section 39D(7), (8) and (9) (see paragraph 108);” If an IMCA and RPR fail to bring proceedings: “120.
- Finally, in circumstances where a RPR and an IMCA have failed to take sufficient steps to challenge the authorisation, the local authority should consider bringing the matter before the court itself.
- This is likely, however, to be a last resort since in most cases P’s Article 5 rights should be protected by the combined efforts of a properly selected and appointed RPR and an IMCA carrying out their duties with appropriate expedition.” If P is able to articulate their wishes: In many cases P is not able to clearly articulate their views (i.e.
for clinical reasons), leaving RPRs and IMCAs to exercise their discretion in a grey area. The case of RD and others (Duties and Powers of Relevant Person’s Representatives and Section 39D IMCAS) (Rev 1) EWCOP 49 has offered some guidance in relation to this.
When an RPR should issue if P’s wishes are unclear: Essentially, the process below should be followed in relation to RPRs: “(1) The RPR must consider whether P wishes, or would wish to apply to the Court of Protection. This involves the following steps: (a) Consider whether P has capacity to ask to issue proceedings.
This simply requires P to understand that the court has the power to decide that he/she should not be subject to his/her current care arrangements. It is a lower threshold than the capacity to conduct proceedings. (b) If P does not have such capacity, consider whether P is objecting to the arrangements for his/her care, either verbally or by behaviour, or both, in a way that indicates that he would wish to apply to the Court of Protection if he had the capacity to ask.
(2) In considering P’s stated preferences, regard should be had to: (a) Any statements made by P about his/her wishes and feelings in relation to issuing proceedings; (b) Any statements made by P about his/her residence in care; (c) P’s expressions of his/her emotional state; (d) The frequency with which he/she objects to the placement or asks to leave; (e) The consistency of his/her express wishes or emotional state; and (f) The potential alternative reasons for his/her express wishes.
(3) In considering whether P’s behaviour constitutes an objection regard should be had to: (a) The possible reasons for P’s behaviour; (b) Whether P is being medicated for depression or being sedated; (c) Whether P actively tries to leave the care home; (d) Whether P takes preparatory steps to leave, e.g.
- Packing bags (e) P’s demeanour and relationship with staff; (f) Any records of challenging behaviour and the triggers for such behaviour; (g) Whether P’s behaviour is a response to particular aspects of the care arrangements or to the entirety of those arrangements.
- 4) In carrying out this assessment, it should be recognised that there could be reason to think that P would wish to make an application even if P says that he/she does not wish to do so or, conversely, reason to think that P would not wish to make an application even though he/she says that she does wish to, since his/her understanding of the purpose of an application may be very poor.
(5) When P does not express a wish to start proceedings, the RPR, in carrying out his duty to represent and support P in matters relating to or connected with the Schedule, may apply to the Court of Protection to determine any of the four questions identified in s.21A(2) i.e.
On the grounds that P does not meet one or more of the qualifying requirements for an authorisation under Schedule A1; or that the period of the standard authorisation or the conditions subject to which the standard authorisation is given are contrary to P’s best interests; or that the purpose of the standard authorisation could be as effectively achieved in a way that is less restrictive of P’s rights and freedom of action; (6) Consideration of P’s circumstances must be holistic and usually based on more than one meeting with P, together with discussions with care staff familiar with P and his/her family and friends.
It is likely to be appropriate to visit P on more than one occasion in order to form a view about whether proceedings should be started. (7) By way of an alternative to proceedings, it may be appropriate to instigate a Part 8 review, or to seek to work collaboratively with the family and the commissioning authority to see whether alternate arrangements can be put in place.
Such measures should not, however, prevent an application to the court being made whether it appears that P would wish to exercise a right of appeal.” When an IMCA should issue in similar circumstances: “(8) The role of the IMCA appointed under s.39D is to take such steps as are practicable to help P and the RPR understand matters relating to the authorisation set out in s.39D(7)(a) to (e), and the rights to apply to the Court of Protection and for a Part 8 review, and how to exercise those rights.
Where it appears to the IMCA that P or the RPR wishes to exercise the right, the IMCA must take all practical steps to assist them to do so. In considering P’s apparent wishes, the IMCA should follow the guidance set out above so far as relevant.” Ramifications from RD and others (Duties and Powers of Relevant Person’s Representatives and Section 39D IMCAS) is that RPRs and s.39D IMCAs are now specifically required to assess capacity which may require additional support and training.
Duncan Lewis Solicitors is one of the largest Legal Aid providers in the UK. Our firms aim is to provide an excellent customer service, while giving a “voice to all”. Duncan Lewis are recognised by Legal 500 2016 Edition UK-Wide for its expertise in Court of Protection practice, and Legal 500 2016 edition applauds Duncan Lewis for its specialism in cases that overlap between mental health/capacity issues and deprivation of liberty safeguards.
Duncan Lewis boasts a Multi-disciplinary approach in Court of Protection proceedings with collaboration from experts in the Mental Capacity, Mental Health, Community Care, Clinical Negligence and Public Law departments. Duncan Lewis Solicitors would like to take this opportunity to indicate that it would be willing to provide a free meet and greet opportunities to provide training in relation to the above.
- We are particularly pleased to offer this service to advocacy services and IMCA/ IMHA organisations.
- This session can be kept as informal or formal, as the organisation would wish.
- You will not be obligated in any way to consider these firms services, and any session would be completely free of charge.
If you would like to contact Duncan Lewis Solicitors for more information on training options with the Public Law team, please contact: Trainee Solicitor Email: [email protected] DDI: 02031141336 Fax: 020 7923 3320 Branch: Harrow : Legal News
What are the IMCA roles in DoLS?
Independent Mental Capacity Advocacy (IMCA) The Mental Capacity Act 2005 is a comprehensive legal framework for decision making for people who lack capacity to make particular decisions for themselves. It is accompanied by a Code of Practice and is based on common law and good practice.
When a Local Authority or NHS body (whomever has funding responsibility) is proposing a change of accommodation for a period likely to be greater than 8 weeks (or a move to a hospital for a period likely to be greater than 28 days).
When an NHS body is considering stopping, starting or withholding serious medical treatment (which is either a finely balanced judgement or likely to have serious consequences for the person).
If either of the above apply AND the person lacks the mental capacity to make the decision for themselves AND they have no friends or family who can otherwise be consulted, then there is a legal duty on the decision maker to instruct an IMCA to represent the person.
independent of the person making the decision able to meet the person in private able to see all relevant health, social services and care home records able to request an additional medical opinion someone who has completed the national IMCA training
The decision maker is the person who has ultimate legal responsibility for making the best interest decision.
When a responsible body is undertaking a care review about a person’s accommodation previously arranged by them When a responsible body is proposing to take or has already undertaken protective measures as a result of an adult safeguarding enquiry (this can apply to either the victim or the alleged perpetrator)
There are also further additional requirements which are:
The person must lack the mental capacity to make the specific decision in question There must be clear benefit for the individual client to have IMCA representation The person has no friends or family who can otherwise be consulted (This does NOT apply to Adult Safeguarding decisions)
If the above applies, then the decision maker has a legal power (but not a duty) to instruct an IMCA to represent the person.
supports and represents the person in the decision making process find out the person’s past and present wishes, feelings, values evaluate information including accessing and copying relevant social and medical records evaluate alternative courses of action consult with others involved in the person’s life seek a further medical opinion if necessary check the Mental Capacity Act principles and best interest check list are being followed prepare a report, which the decision maker has a legal duty to consider challenge the decision (including the outcome of a capacity assessment) if necessary, informally first and through Court of Protection as a last resort
You can read more details about the mental capacity act and about the IMCA service (chapter 10) by,
The decision maker or someone appointed by them should make the referral directly to our service.To make a referral for an IMCA,,To read more detail about the IMCA service please refer to Chapter 10 of the Statutory Code of Practice which can be found,
Sometimes a vulnerable person who lacks capacity needs to be restricted in order to provide treatment or care which is necessary in their best interests to protect them from harm. The degree and level restrictions may amount to a deprivation of liberty (DOL).
Under certain circumstances, a DoLS IMCA can be instructed to act in a number of different ways. When there is no family member, friend or appropriate person, known as the Relevant Person’s Representative (RPR), to support the relevant person (RP) through this process, the Supervising Body (SB) will appoint a DoLS IMCA.
Once the application has been approved the SB can also instruct a DOLS IMCA either to support the RP, the RPR, both the RP and the RPR, or to act as the RPR themselves if no representative is available. A DoLS IMCA is an Independent Mental Capacity Advocate (IMCA) who has obtained or is working towards the additional Deprivation of Liberty Qualification applicable to their role.
Section 39a DoLS IMCA Supporting and representing a person who lacks capacity and who has no other friends or family who can otherwise be consulted during a deprivation of liberty assessment process. Section 39c DoLS IMCA To act, after the authorisation has been granted, as the RPR (where the original RPR is no longer available and a subsequent RPR has yet to be appointed).
A 39c IMCA can be instructed to provide temporary cover for the absent RPR, fulfilling all of their duties on an interim basis, whilst alternative arrangements are made by the supervisory body to appoint another RPR. Section 39D DoLS IMCA A person subject to a deprivation of liberty authorisation, or their unpaid RPR can gain support from a 39d DoLS IMCA in order to help them understand paperwork, call a review or mount an appeal.
The supervisory body can also make a request for an IMCA 39d where they think either or both parties will benefit from the assistance of a 39d IMCA. A DOLS IMCA has all of the usual duties applicable to an Independent Mental Capacity Advocate but with specific additional duties which are dependent on the type of IMCA DoLS role they have been instructed to fulfil.
For further details please refer to The Deprivation of Liberty Code of Practice can be, ONLY a Supervisory Body can make a direct referral to the IMCA service to instruct a DoLS IMCA. Managing Authorities (Care Homes and Hospitals) should direct all DoLS related requests or queries to the relevant Supervisory Body DoLS Office,
How many members does IMCA have?
Member Directory – IMCA Submitting, Submitting We have a Membership of some 700 companies operating in more than 60 countries around the world ranging from small independent companies to multinational organisations. Our directory lists all our members – you can search the directory by company name, by region or by membership category.
Member Directory – IMCA
What are the 2 acid test questions under DoLS?
Revised DoLS – On 19 March 2014, the Supreme Court handed down its judgment in the case of ” P v Cheshire West and Chester Council and another ” and ” P and Q v Surrey County Council “. The Supreme Court has now confirmed that to determine whether a person is objectively deprived of their liberty there are two key questions to ask, which they describe as the ‘ acid test ‘:
- Is the person subject to continuous supervision and control ? (All three aspects are necessary.) and
- Is the person free to leave? (The person may not be saying this or acting on it but the issue is about how staff would react if the person did try to leave.)
This now means that if a person is subject both to continuous supervision and control and not free to leave they are deprived of their liberty. The following factors are no longer relevant to this:
- the person’s compliance or lack of objection;
- the relative normality of the placement and
- the reason or purpose behind a particular placement.
The judgment is significant in determining whether arrangements made for the care and/or treatment of an individual lacking capacity to consent to those arrangements amount to a deprivation of liberty. It is important to remember that the Safeguards are there to protect very vulnerable people from arbitrary decision making and ensure that they have a voice.
What are the 4 principles of mental capacity?
Principle 1 – A presumption of capacity. Principle 2 – The right to be supported when making decisions. Principle 3 – An unwise decision cannot be seen as a wrong decision. Principle 4 – Best interests must be at the heart of all decision making.
Why do you need an IMCA?
IMCAs are a safeguard for people who lack capacity to make some important decisions. The IMCA role is to support and represent the person in the decision-making process. Essentially they make sure that the Mental Capacity Act 2005 is being followed.
When should an IMCA be involved?
The IMCA service is provided for any person aged 16 years or older, who has no one able to support and represent them, and who lacks capacity to make a decision about either: a long-term care move; serious medical treatment; adult protection procedures; or a care review.
What can an IMCA do?
Your IMCA can: Visit you in a care home, hospital or other place. If they have been appointed to help you, they should be able to speak to you in private, unless you want someone else there to support you.
Can IMCA see case notes?
Can the IMCA look at records? – One of the legal powers of IMCAs is to be able to look at and take copies of relevant records. This includes health records, records held by local authorities and records held by care homes. See Section 35(6) of the Mental Capacity Act for the specific details of this power.
care assessments and care plans medical records including medication charts daily log books staff rotas to check on the level of support provided.
How do you test a person’s capacity?
Is the decision in their best interests? – If someone lacks the capacity to make a decision and the decision needs to be made for them, the MCA states the decision must be made in their best interests. The MCA sets out a checklist to consider when deciding what’s in a person’s best interests. It says you should:
encourage participation – do whatever’s possible to permit or encourage the person to take partidentify all relevant circumstances – try to identify the things the individual lacking capacity would take into account if they were making the decision themselvesfind out the person’s views – including their past and present wishes and feelings, and any beliefs or valuesavoid discrimination – do not make assumptions on the basis of age, appearance, condition or behaviourassess whether the person might regain capacity – if they might, could the decision be postponed?
It’s vital to consult with others for their views about the person’s best interests. In particular, try to consult:
anyone previously named by the individualanyone engaged in caring for themclose relatives and friendsany attorney appointed under a Lasting Power of Attorney or Enduring Power of Attorneyany deputy appointed by the Court of Protection to make decisions for the person
What is the role of 39D IMCA?
Overview of the IMCA roles in the DoLS – There are a number of different IMCA roles involved in supporting and representing people who may be subject to the Deprivation of Liberty Safeguards. These are set out in Section 39 of the amended Mental Capacity Act 2005 ( MCA ),
Section 39A IMCAs are instructed when there is an assessment in response to a request for a standard authorisation, or a concern about a potentially unauthorised deprivation of liberty. Section 39C IMCAs cover the role of the relevant person’s representative when there is a gap between appointments. Section 39D IMCAs support the person, or their relevant person’s representative, when a standard authorisation is in place.
In this publication these IMCA roles are shortened to 39A IMCAs, 39C IMCAs and 39D IMCAs, Supervisory bodies are responsible for making all these instructions, using Form 11,
What are the IMCA Super Nationals?
Major races – The IMCA championships are held annually at the IMCA Super Nationals at Boone Speedway in Boone, Iowa, Another major race is the Harris Clash held at the Deer Creek Speedway in Spring Valley, Minnesota which was developed as a race with somewhat of an emphasis on chassis manufacturers.
Can IMCA access and copy records?
Access to records for IMCAs and assessors – IMCAs and assessors have similar rights of access to records in undertaking their roles. They can: at all reasonable times, examine and take copies of:
- any health record,
- any record of, or held by, a local authority and compiled in connection with a social services function, and
- any record held by a person registered under Part 2 of the Care Standards Act 2000 or Chapter 2 of Part 1 of the Health and Social Care Act 2008
which are relevant to their investigations MCA, Sections 35(6) and 131, amended by Section 17 of the Health and Social Care Act 2008 (Consequential Amendments No.2) Order 2010 A critical difference is that with IMCAs it is the holder of the record who decides what is relevant, whereas assessors can decide for themselves what is relevant.
- When sharing records between IMCAs and assessors care must be taken to clarify the basis on which they are shared.
- For example, where an assessor is carrying out their function as an employee of a local authority, the IMCA may use their right to request relevant records from the assessor.
- Similarly, an assessor could take copies of relevant health or local authority records that the IMCA has on file.
Records may also be shared with the consent of the person, or in their best interests where they lack capacity to make this decision. For example, if an IMCA copied a document which was relevant to an assessment from a person’s file from where they lived, they could share this on a best interests basis with an assessor – if the person lacked the capacity to make a decision about sharing the information.
What are the 4 steps of establishing capacity?
The test to assess capacity – The two-stage test In order to decide whether an individual has the capacity to make a particular decision you must answer two questions: Stage 1 – Is the person unable to make a particular decision (the functional test)? Stage 2 – Is the inability to make a decision caused by an impairment of, or disturbance in the functioning of, a person’s mind or brain? This could be due to long-term conditions such as mental illness, dementia, or learning disability, or more temporary states such as confusion, unconsciousness, or the effects of drugs or alcohol (the diagnostic test).
Understand information given to them Retain that information long enough to be able to make the decision Weigh up the information available to make the decision Communicate their decision – this could be by talking, using sign language or even simple muscle movements such as blinking an eye or squeezing a hand.
Every effort should be made to find ways of communicating with someone before deciding that they lack capacity to make a decision based solely on their inability to communicate. Also, you will need to involve family, friends, carers or other professionals.
What are the 3 restrictions of the mental capacity Act?
(1)The following principles apply for the purposes of this Act. (2)A person must be assumed to have capacity unless it is established that he lacks capacity. (3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
Who can assess mental capacity?
In the codes of practice, the people who decide whether or not a person has the capacity to make a particular decision are referred to as ‘assessors’. This is not a formal legal title. Assessors can be anyone – for example, family members, a care worker, a care service manager, a nurse, a doctor or a social worker.
Who are Pprs and Imcas?
By Tory Smith, 6th January 2021 I am a paralegal working at MJC Law. One of MJC Law’s specialties is health and welfare cases in the Court of Protection and in the vast majority of our cases we represent “P” (the protected person). By way of my own background, I have been involved within the realms of the Mental Capacity Act for a number of years.
- My initial involvement was in the role of a Paid Relevant Person’s Representative (“RPR”) and Independent Mental Capacity Advocate (“IMCA”).
- I am aware that these roles are often mentioned within proceedings but for any observers, they may be foreign terms.
- As such, I thought it may be useful to provide an outline of each of the roles and how they might be involved with P.
Paid RPR An RPR is appointed as part of the deprivation of liberty process. Again, this may be jargon that is mentioned particularly in proceedings relating to a challenge to deprivation of liberty authorisation (section 21A proceedings) and an observer may wonder what on earth everyone is talking about.
The Deprivation of Liberty Safeguards (“DoLS”) are designed to protect the person’s Article 5 and 8 ECHR rights. A number of assessments are completed as part of the DoLS process and if a person does not meet any one of the criteria then they cannot be be deprived of their liberty under standard authorisation.
The assessments that are most often talked about are (1) the capacity assessment – i.e. whether a person lacks capacity to consent to the arrangements; (2) the best interests assessment – which also involves consideration of whether the proposed arrangements are the least restrictive possible to meet their needs.
Once a standard authorisation has been granted, this essentially means that the arrangements have been approved by the supervisory body (the local authority). A standard authorisation is granted for a set period which can range from a matter of days or weeks or up to the maximum of 1 year. Conditions can be included as part of the authorisation and act essentially as action points that must be completed during the period of the authorisation.
The process is of granting a standard authorisation is in practice much more in-depth than I have outlined here and there are many more factors that have to be considered but in an effort to not to overload readers with too much information, I have tried to keep it brief.
- A more detailed explanation can be found here,
- In order to further protect the person’s rights, when a standard authorisation is granted somebody is appointed to act at the relevant person’s representative (“RPR”).
- This is usually a close friend or family member.
- The role of the RPR is to maintain regular contact with the person and to represent and support them in relation to the DoLS.
This can include triggering a review, making a complaint or making an application to the Court of Protection on the person’s behalf. There are some circumstances where it is not possible or appropriate for a friend of family member to act as RPR. For example, there may be safeguarding concerns relating to them or they may be unwilling to take on the role, or perhaps have conflicting views and would not be willing to support a review or the issuing of proceedings in the Court of Protection.
Sadly, also, a common circumstance to arise is that the person does not have any family or friends to take on the role. In the event that there is nobody to take on the role of an RPR, a paid RPR will be appointed. This is a role that I have previously fulfilled. A paid RPR will have the same responsibilities as a friend or family member would have.
They are required to make regular visits to the person, usually monthly, and support them with the DoLS process for the period of the standard authorisation. I found acting as a paid RPR to be extremely rewarding. Within the role I had the opportunity to form a relationship with the person and get to know all about them.
A standard visit to see a client consisted of spending time with the person to discuss how they are doing, how they feel about their placement and care arrangements, if they had any concerns or worries, ensuring that overall their needs are being met and making sure they are happy and content. As well as speaking with the person, I would also speak with staff to discuss in their view how the person is doing, if they have any concerns or if there have been any events since the previous visit that I should be aware of.
I would discuss any conditions on the standard authorisation in order to ensure that they are being progressed. As a RPR you always hope that the client is happy with their placement and care arrangements. This is not always the case and if the person expresses an objection to the placement then as the person’s RPR, it would be my role to take steps to assist the person in challenging the standard authorisation.
- Taking steps to have proceedings issued in the Court of Protection is not usually the first resort and generally I would have taken steps to see if the issues could be resolved without the involvement of the court.
- This could be done by contacting the person’s social worker and alerting them to the wishes and feelings that have been expressed.
On many occasions, if the person is unhappy with the arrangements, this would trigger the social worker to look into an accommodation move without the oversight of the court. If, however, this was not possible and the client remained clear and consistent in their objections, I would then make contact with a solicitor in order to issue proceedings in the Court of Protection to challenge the standard authorisation.
- These are section 21A proceedings.
- The role of a RPR in Court of Protection proceedings can vary significantly.
- Some RPRs act as the person’s litigation friend in the proceedings, whilst others support the person to access legal representation and continue their role as RPR, but do not become involved in the proceedings themselves.
The extent of a paid RPRs involvement is often stipulated by funding restraints and an individual organisations’ policies. The organisation I worked for would not enable us to act as litigation friend so this was not a role I was able to fulfil. In my view there are pros and cons of an RPR acting as a litigation friend.
On the plus side, it is beneficial for someone who is already familiar with the person and their circumstances to be supporting them within the proceedings. This also ensures that there is continuity and the RPR is aware of how proceedings are progressing in order to keep the person up to date and involved.
But there are also challenges – a RPR should not usually take a view in respect of what is in a person’s best interests. A RPR is there to support the person and if the person says they do not want to remain at their current placement and would prefer to live somewhere that the RPR knows is not an option – say in a house independently with no support – it is not for the RPR to take a view on this and they should still support the person with their challenge.
- This differs from the role of litigation friend where a position does have to be formed as to the potential alternative options and what is in the person’s best interests.
- Difficulties here can arise when the position the litigation friend comes to is not in line with the wishes and feelings of the person and there is a danger it could lead to a significant breakdown in the relationship.
IMCA The role of an IMCA is quite different to that of an RPR, although there are times that there can be an overlap in the roles. Both roles come under the umbrella of advocacy and involve ensuring a person’s wishes and feelings form part of the decision-making process An IMCA’s role is to support and represent a person in the decision-making process when important decisions are being made about them.
These decisions most commonly concern long term accommodation moves and serious medical treatment cases. The Mental Capacity Act 2005 (Independent Mental Capacity Advocates) (General) Regulations 2006 sets out the IMCA’s role and functions. In summary the role is to gather information, evaluate the information, make representations and if required, challenge decisions.
I will deal with this in a little more detail below: Gathering information An IMCA meets with the person and, similarly to an RPR, discusses their wishes and feelings with them. This should be done in private and without the influence or distractions of others.
- Where possible, an IMCA aims to meet with the person on a number of separate occasions, at various times, to ensure that the wishes and feelings expressed were consistent and also to give the person the opportunity to maximise their ability to express the same.
- As well as obtaining the person’s views directly, steps should be taken to obtain the views of anybody else who may be able to shed light on the wishes and feelings of the person.
As an IMCA you have the right, and should exercise this right, to examine relevant health and social care records. This enables the IMCA to be armed with all of the information that is relevant to the decision being made. Evaluating information Once an IMCA has gathered all of the information, they must then evaluate this.
- It is important to ensure that all of the different options have been considered and decide if any further opinions may require investigation.
- The IMCA must ensure that the person has been supported, so far as is possible, to be involved in the decision that is being made and evaluate the information gathered to determine what would be their wishes and feelings if they had capacity to make the decision for themselves.
Making representations IMCAs are required to provide a report to the decision maker and this should be done in advance of the decision being made. It is important for the IMCA to raise any issues or concerns they have with the decision maker. It is the role of the IMCA to ensure that all of the relevant factors have been considered as part of the decision-making process and to highlight any gaps that need addressing.
When acting as an IMCA, I often attended best interests decision meetings, in addition to providing a report. This provided a good opportunity to ensure that any concerns were addressed and to raise any further queries that may arise as part of the process. It also often provided me with the chance to ensure that the client’s wishes and feelings were given full consideration.
The IMCA should not express their own views as to what is in the client’s best interests and should only express the wishes and feelings of the client. At times this can be challenging as the client’s wishes may be entirely unrealistic but it is still your role to express this (even if your client has said they want to live on the moon!).
Challenging decisions An IMCA cannot simply challenge a decision because they do not like the outcome, but in the event that the IMCA does not feels the correct process has been followed or that concerns raised have not been addressed then this can be challenged through the local complaint procedure.
If issues cannot be resolved then it should then be referred to the Court of Protection. As with a paid RPR, an IMCA is not always required. If a person has family or friends who are appropriate to consult as part of the process then an IMCA will not be instructed.
If, however, family and friends are not appropriate, or there are no family and friends available, then an IMCA should be instructed. In addition to the role of the IMCA set out above, an IMCA can also be instructed as part of the DoLS process in order to support a family or friend acting as RPR in their role or alternatively to fill a gap in a RPR being appointed.
Further, there can be an overlap in acting as an IMCA and a paid RPR if a decision is required about, for example, whether a person should move into a care home in the long term. Each organisation is different and not all paid RP’s are also qualified IMCAs so cannot fulfil both roles.
- I personally feel it can be a particular advantage if an advocate is able to act as an IMCA and a paid RPR as it provides a more holistic approach and can provide consistency for the client.
- PARALEGAL I am currently a paralegal at MJC Law.
- In this role I support the solicitors within the firm to progress cases within the Court of Protection.
In the majority of cases we support the protected person (“P”) by their litigation friend which is often the Official Solicitor or a RPR. We also accept instruction from other parties, including family members. Observers may have seen paralegals in attendance at hearings and wondered what the difference is between them and the solicitors.
- Paralegals are usually not qualified solicitors and therefore must work under the supervision of the qualified solicitor who has conduct of the case.
- A paralegal does not have any rights of audience which means they are unable to speak in court and therefore require a qualified solicitor or barrister to be in attendance with them.
The role of a paralegal can vary from firm to firm but in my role I become actively involved in cases under the supervision of a solicitor. My role includes the consideration of the papers and evidence, drafting applications and orders, corresponding with the parties to narrow the issues and also completing administration tasks as required.
As part of my role I also attend on clients to discuss the proceedings and obtain their wishes and feelings. I must say that this is one of the best parts of my job. When I attend on clients I am able to utilise the skills and techniques that I developed as a paid RPR and IMCA to determine their wishes and feelings.
I can then ensure that these are communicated to the other parties and the court in order to be considered as part of the decisions being made. The main difference between my previous roles and my current role relates to the position taken in relation to the person’s best interests.
As mentioned above, in my previous roles I communicated the person’s wishes and feelings but did not have to consider what I thought to be in the person’s best interests. Legally representing the person concerned requires active consideration of this in advising the litigation friend. In order for a case to progress within the Court of Protection, providing the court is satisfied that the person lacks capacity, the parties must each decide what they consider is in the person’s best interests based on the evidence before them and communicate this position to the court to allow the court to make its determination.
Whilst each of the roles have distinct differences in the ways in which they support P, they all share the ultimate aim of ensuring that P has a voice in the decisions that affect their lives. In my view, it is essential that any professional working with any person who could potentially lack capacity has an awareness of the roles discussed here and an understanding of when it may be appropriate to make a referral to an advocacy agent or to make an application to the Court of Protection.
I hope that the Open Justice Court of Protection Project goes some way in boosting awareness and that blogs such as this will help others to gain insight into how the roles introduced by the Mental Capacity Act 2005 work in practice. Tory Smith joined MJC Law in January 2019 as a paralegal. She has just recently progressed on to be a trainee solicitor.
MJC Law is a specialist law firm, offering advice and representation in cases involving the Court of Protection, mental health and social care and health law. Photo by Chris Lawton on Unsplash
Who is the IMCA instructed by?
Messages for practice –
- The Mental Capacity Act provides an extra safeguard for people who lacks capacity to make serious medical treatment decisions and who don’t have family or friends who can represent them. In such cases, an IMCA must be instructed to support the person.
- The person’s doctor must decide what is in their best interests. The IMCA is instructed by the doctor.
- Sometimes it can be very hard to find out from a person what their views and wishes are about treatment.
- Paid carers may have know a person very well and their thoughts about the person’s views and wishes should inform the decision about treatment.
- The IMCA may include information from carers in their IMCA report to the doctor.
What is the role of the IMCA in safeguarding?
The IMCA report – IMCA s are required to produce a report for the person who instructs them. This should include representations regarding the proposed protective measures and any matters the IMCA feels are relevant. Where the person who instructed the IMCA is not the safeguarding manager, it is recommended that the report is at the same time provided to the safeguarding manager.
Good practice is for the safeguarding manager to decide on the distribution of the report and not the IMCA, If the IMCA is asked for copies of the report they should direct the person to the safeguarding manager. Ideally an IMCA report is provided before decisions are made about protective measures. It is also good practice for the IMCA to provide written reports for all safeguarding planning meetings.
In some cases the IMCA may have had little opportunity to write a report before decisions are made. Delaying making decisions while waiting for a written IMCA report may go against the person’s best interests. Where decisions are made about protective measures before an IMCA report is received there is still a statutory requirement to have had regard to any representations the IMCA has already made (including verbally at safeguarding adults meetings).
- The IMCA report in these circumstances should be provided as soon as possible after decisions are made to ensure timely and appropriate representation.
- It is suggested here that this is within one week.
- To facilitate the IMCA role it is recommended that safeguarding managers receive a briefing or training on the IMCA role.
Also, IMCA s should undertake training on the local safeguarding adults procedures. The primary role for IMCA s in safeguarding adults is to represent and support the person at risk in relation to best interests decisions concerning protective measures.
- This includes any decision not to take protective measures.
- IMCA s may make representations on any matter relating to the safeguarding adults proceedings.
- IMCA s should wherever possible produce written reports for safeguarding planning meetings.
- IMCAs’ reports should be submitted to the safeguarding manager who should take responsibility for deciding who they should be circulated to.
Any requests made to the IMCA to see the report should be directed to the safeguarding manager.
If not already produced, IMCA reports must be submitted within one week of decisions about protective measures being made as part of the safeguarding plan.Safeguarding managers should receive a briefing or training on the IMCA role. IMCA s should receive training on local safeguarding adults procedures.
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: Practice guidance on the involvement of Independent Mental Capacity Advocates (IMCAs) in safeguarding adults
What is a DoLS assessment?
The Deprivation of Liberty Safeguards assessment The DoLS assessment is a safeguard as it makes sure that the care being given is in the person’s best interests. An assessment will decide whether the deprivation of liberty is allowed to happen or not.