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Independent Mental Capacity Advocacy Service (IMCA)

How to refer to the POhWER IMCA service

Please select the relevant link to the right for further details about POhWER's IMCA service in your area, and to download referral forms and supporting documents.

If we do not currently deliver IMCA services in your area, and you would like help finding out who does, please contact us on 0300 456 2370

What is an IMCA?

IMCA stands for Independent Mental Capacity Advocate. This is a specific form of advocacy that was introduced in the Mental Capacity Act 2005. This Act gave some people who have been assessed to lack capacity (see below for more about what this means) the right to be supported by an IMCA if certain decisions are being made about their care. IMCA services are provided by organisations, like POhWER, that are independent from the NHS and local authorities.

Why might somebody lack capacity?

The Mental Capacity Act (the MCA) has as a starting point the concept that ‘it should be assumed that an adult (aged 16 or over) has full legal capacity to make decisions for themselves (the right to autonomy) unless it can be shown that they lack capacity to make a decision for themselves at the time the decision needs to be made.’ (This quote is taken from the MCA Code of Practice chapter one).
Whenever the term ‘a person who lacks capacity’ is used, it means a person who lacks capacity to make a particular decision or take a particular action for themselves at the time the decision or action needs to be taken.
A person may lack capacity to make certain a decision because of an impairment of the functioning of the mind or brain. This might be because of dementia, a learning disability, or an acquired brain injury.

How is capacity assessed?

Capacity must be assessed at the time the decision needs to be made. It is both time and issue specific and requires the person taking the decision (typically a doctor or social worker) to carry out an assessment. It is not the role of the IMCA to carry out this assessment.

Who would need an IMCA?

The MCA places a statutory duty on authorities to involve an IMCA when a person has been assessed to lack capacity to make decisions about:

Serious Medical Treatment – this relates to the giving, withholding or withdrawing of serious medical treatment. Suggestions as to what might constitute Serious Medical Treatment are around issues where there is a fine balance between a choice of treatments or where giving, withholding or withdrawing treatment could have serious consequences for the person.

Change of Accommodation – this is where there is a proposal to change someone’s accommodation for a period of 8 weeks or more or where somebody is going into hospital for a period of 28 days or more.

An IMCA must be instructed in these instances if the person has nobody else who is ‘appropriate to consult’ (for instance close family or friends).

In addition to this an IMCA may be instructed under discretionary powers if a decision is being made about the

safeguarding of a vulnerable adult or if a

care review is being held.

In safeguarding cases an IMCA may be instructed even if family and friends are being consulted.

Generally speaking, the earlier in the process that an IMCA is involved the better. Our IMCAs are completely independent, so it is important for each individual to have IMCA representation as early as possible so that decisions do not take place against the person’s wishes. After the IMCA has become involved, it is recommended that the IMCA attend all adult safeguarding meetings.

What does an IMCA do?

An IMCA’s role is to:

Represent and support somebody in relation to their ‘best interests’

Find out the views and beliefs of the person

Ensure that the person is enabled to participate in the decision making

Obtain and evaluate information

Look at other courses of action

Consider seeking a second medical opinion

Make sure that the principles of the MCA are being followed and that the person’s best interests are always at the forefront of the decision making process

Prepare a report which the MCA says the person who is making the decision must take into account

Challenge the decision if necessary (informally if possible, but through the relevant complaints system if necessary and ultimately through the Court of Protection if the decision is very serious)

Deprivation of Liberty Safeguards (DoLS)

An IMCA can also be instructed in DoLS cases. In this case a referral can only be made by what is known as the Supervisory Body (the Local Authority or NHS). Deprivation of Liberty is a really difficult term to explain. Each person’s circumstances are different and a number of factors must be taken into account, such as whether:

the person is resisting or other people want the person to be discharged

staff have total control over the person’s care and movement

staff control who the person can see and what kind of treatment they have

the person has lost all autonomy

The DOLS element of the Mental Capacity Act says that any deprivation of liberty should be:

avoided wherever possible

authorised only in cases where it is in the person’s best interests and the only way to keep them safe

for as short a time as possible

only for a particular treatment plan or course of action

Relevant Person’s Representative

Where a person has been deprived of their liberty they have a right to have a Representative to protect their interests throughout the process.
In general, a person’s Representative is a friend or family member who will ensure that the rights of a person being deprived of their liberty are protected.
In cases where no friend or family member is willing or eligible, a Paid Representative will be appointed. This is a crucial role in the deprivation of liberty process, providing the person with representation and support that is independent of the commissioners and providers of the services they are receiving. The Paid Representative will maintain contact with the person and provide representation and support to them in all matters relating to the MCA DOLS.
The main role of the DOLs representative is to:

Maintain regular contact with the person being deprived of their liberty

To represent and support that person in all matters relating to DOLS including requesting a review, make a complaint, or an application to the Court Of Protection, if these are appropriate

o provide support that is independent of the persons commissioners and service providers

To ensure the person is involved as far as possible in any decisions and their wishes represented

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