PLYMOUTH INDEPENDENT MENTAL
CAPACITY ADVOCACY SERVICE
PLYMOUTH HIGHBURY TRUST
207 OUTLAND ROAD
PLYMOUTH, PL2 3PF
TEL: 01752 753718
FAX: 01752 796299
EMAIL: imca@plymouthhighburytrust.org.uk
MARTIN NEWMAN – General Manager P.H.T.
PHIL FITZSIMMONS – IMCA Manager
What is an IMCA
• The Mental Capacity Act 2005 has made
provision for people who:
• ‘lack Capacity to make certain decisions at the
time that decision needs to be made’ to have a
statutory right to an Independent Mental
Capacity Advocate if they are unbefriended.
• This is to safeguard the person and ensure that
decisions are made in the persons best interest.
AIM OF THE SERVICE
• The aim of the IMCA Service is to provide
safeguards for people who lack Capacity
to make certain decisions, at the time such
decisions need to be made, and have noone else (other than paid staff) to support
or represent them.
• The IMCA must be independent.
WHEN TO REFER
An IMCA MAY be instructed for:
• Care Reviews
AND
• P has been deemed by D to lack capacity
AND P is unbefriended or the carers are
deemed inappropriate to consult.
• D Must be satisfied that having an IMCA
will be of particular benefit to P
WHEN TO REFER
• An IMCA MAY be instructed in cases of:
• Adult Protection
• Even where family members or others ARE available to
be consulted when:
• P lacks capacity.
• P is the abused OR the alleged abuser.
• The Responsible Body proposes to take OR has already
taken protective measures.
• D must be satisfied that having an IMCA will be of
particular benefit to P.
WHEN TO REFER
An IMCA MUST be instructed for:
• Moving into Long Term Accommodation for
periods longer than 8 weeks or a change
of long term accommodation.
AND
• P has been deemed by D to lack capacity
AND P is unbefriended or the carers are
deemed inappropriate to consult.
WHEN TO REFER
An IMCA MUST be instructed if:
• An NHS organisation proposes to place a
person in Hospital, or move then to
another Hospital, for longer than 28 days.
AND
• P has been deemed by D to lack capacity
AND P is unbefriended or the carers are
deemed inappropriate to consult.
WHEN TO REFER
An IMCA MUST be instructed for:
• Decisions regarding Serious Medical
Treatment.
AND
• P has been deemed by D to lack capacity
AND P is unbefriended or the carers are
deemed inappropriate to consult.
SERIOUS MEDICAL TREATMENT
As defined for the purposes of S37 of the Act
•
Serious Medical Treatment is treatment which involves
providing, withdrawing or withholding treatment where:
1. In a case where a single treatment is being proposed,
there is a fine balance between its benefits to P and
the burdens and risks it is likely to entail for him.
2. In a case where there is a choice of treatments, a
decision as to which one to use is finely balanced, or
3. What is proposed would be likely to involve serious
consequences for P.
SERIOUS MEDICAL TREATMENT
• Serious Consequences include:
• The causing of serious and prolonged
pain, distress or side effects.
• Undergoing major surgery
• Stopping life sustaining treatment
• Major impact on future life choices
SERIOUS MEDICAL TREATMENT
Some examples of Serious Medical Treatment:
•
•
•
•
•
•
•
•
Chemotherapy/surgery for Cancer
Electro-convulsive Therapy
Therapeutic Sterilisation
Major Surgical Procedures (Open heart surgery/brain surgery)
Major Amputations
Treatments resulting in permanent loss of hearing or sight
Withholding/stopping Artificial Nutrition/Hydration
Termination of Pregnancy
This list is not exhaustive and each case will be considered on is own
merits by D
POWERS OF THE IMCA
•
The IMCA has a statutory right to:
1.
2.
Have private discussions with P.
Access the Medical/Social Care records in relation to
the decision.
Obtain a second medical opinion.
Challenge the decision made regarding P’s Capacity.
To involve specialist help (e.g. speech & language).
3.
4.
5.
ROLE OF THE IMCA
The IMCA will:
1. Confirm the person instructing them is authorised to do
so.
2. Investigate the matter as fully as possible.
3. Ascertain if P could regain Capacity and when.
4. Ensure that appropriate support is given to P to enable
him to make his own decision or to improve his ability
to be involved in the decision.
5. Record the views, wishes and beliefs of P and of other
people involved with P which may affect the outcome.
6. Investigate alternative options.
7. Provide a report to D with regard to P’s best interest.
DECISION MAKERS DUTIES
The Decision Maker MUST:
• Instruct an IMCA to support and represent P in
the situations previously stated
• Consider the involvement of an IMCA in Care
Reviews and Adult Protection.
• Record that an IMCA has been instructed, keep
information provided by the IMCA and inform
relevant people that the IMCA is involved.
• Give access to relevant social/medical care
records as requested.
DECISION MAKERS DUTIES
The Decision Maker MUST :
• Ensure the IMCA is kept informed regarding
changes that may affect their role/support.
• Record how they have properly taken into
account the information provided by the IMCA in
making the decision in P’s best interest.
• Ensure the IMCA is informed of the final
decision.
START HERE
Contacting the Independent Mental Capacity Advocate
You have assessed
a service user as
not having capacity
to make a particular
decision
Is the person
without capacity the
subject or alleged
perpetrator in an adult
protection
issue?
YES
Consider
Engaging
IMCA
PLYMOUTH HIGHBURY TRUST
207 OUTLAND ROAD
PLYMOUTH
PL2 3PF
imca@plymouthhighburytrust.org.uk
NO
Does the
Service User have
appropriate
support apart from
paid carers
YES
Do not
engage IMCA
NO
There are exceptions for
self-funders and some
people placed under the
Mental Health Act. Consult
the Code of Practice or
contact IMCA provider
Is the decision
about Serious
Medical
Treatment,
hospital stay of
more than 28
days or a
change of
Accommodation
NO
YES
You
MUST
engage
IMCA
Consider
engaging IMCA
YES
Is the decision
about a review of
accommodation
Do not engage
IMCA
NO
Contact
IMCA
Service on
01752
753718
Or
773333
DEPRIVATION OF
LIBERTY
SAFEGUARDS
BACKGROUND
• Introduced into Mental Capacity Act 2005 (MCA) through
the Mental Health Act 2007
• Will prevent arbitrary decisions that deprive vulnerable
people of their liberty
• Safeguards are to protect service users and if they do
need to be deprived of their liberty give them
representatives, rights of appeal and for the “deprivation”
to be reviewed and monitored.
• Safeguards cover people in hospital and care homes
registered under the Care Standards Act 2000
• Became a statutory obligation in 2009
What is deprivation of liberty?
• Arises from the “Bournewood” case – a ECtHR case – Article
5.
• HL had been deprived of his liberty unlawfully, because of a
lack of a legal procedure which offered sufficient safeguards
against arbitrary detention (5(1)) and speedy access to court
(5 (4))
• “The distinction between deprivation of and restriction upon
liberty is merely one of degree or intensity and not one of
nature or substance”
• Therefore no definition
• Subsequent case law e.g. DE and JE v Surrey County
Council
• A serious matter to be used sparingly and avoided wherever
possible
When to Instruct an IMCA
• Section 39A—Assessment
• The Supervisory body MUST instruct an IMCA
when the person being assessed under the
Deprivation of Liberty Safeguards has no family
member or unpaid Carer to represent them.
• The Managing Authority MUST notify the
Supervisory Body on the Request for Urgent
Authorisation or Request for a Standard
Authorisation Form if the person has no one
to represent them.
When to Instruct an IMCA
• Section 39C—Gaps between
Representatives.
• If a persons representative is unable to carry out
their role an IMCA MUST be instructed by the
Supervisory Body who will act for the person
until another permanent representative is
appointed.
• The Managing Authority MUST notify the
Supervisory Body when the person’s
representative is no longer able or willing to
carry out their role.
When to Instruct an IMCA
• Section 39D—IMCA requested by the Person
or their Representative.
• An IMCA MUST be instructed by the Supervisory
Body if one is requested by either the person or
their Representative. They can request an IMCA
at any point during the time the Deprivation of
Liberty Authorisation is current.
• The Managing Authority MUST notify the
Supervisory Body if the person or their
Representative requests an IMCA
Role of the IMCA
• Section 39A & 39C
• The role of the IMCA is to provide an independent voice
for a person who is being assessed under the
Deprivation of Liberty Safeguards
or
• is being Deprived of their Liberty under the Safeguards
• And have no family members, unpaid carers or a
Representative to support them and ensure their best
interests are being upheld.
Role of the IMCA
• Section 39D
• The role of the IMCA is to support the
person or their representative on specific
issues regarding the Deprivation of Liberty
e.g. calling a review or considering a
challenge in the Court of Protection.