Independent Mental Capacity Advocacy (IMCA)

In accordance with the Mental Capacity Act 2005, our Independent Mental Capacity Advocates (IMCA’s) provide an important safeguard for those people who are not able to make particular decisions for themselves, and do not have friends or family members who are available, willing and suitable to be consulted on their behalf.

The Mental Capacity Act places a statutory duty on representatives from health or social services to refer their clients for IMCA if certain eligibility criteria outlined within the Mental Capacity Act is met. The criteria is as follows:

Stage 1:

A decision needs to be made about one of the following situations:

  • Change of Accommodation > 28 days in hospital
  • Change of Accommodation > 8 weeks in other accommodation
  • Serious Medical Treatment

Stage 2:

The person is not able to make the decision themselves, despite being offered as much help as is possible. They have a diagnosed impairment of the mind or brain which prevents them from fully understanding the decision to be made, and they have been formally assessed as lacking capacity to make this specific decision using the 2 stage assessment of capacity as required by Mental Capacity Act.

Stage 3:

The person has nobody else other than paid workers who are willing, able and suitable to be consulted about the decision.

If stages 1-3 apply then there will be a duty for health and social services to refer their client, and for the person whom is ultimately responsible for making the decision to instruct an IMCA.

Additionally, IMCA’s can also be requested to assist people who do not have capacity and are involved in a Safeguarding Adults (formally Adult Protection) investigation resulting in protective measures being considered; in this instance stage 3 of the process outlined above does not apply.

IMCA’s can also become involved if a person is involved in a Care Review relating to their accommodation when they have been within a residential establishment for longer than 12 weeks, if stages 2 and 3 apply.

IMCA and Deprivation of Liberty Safeguards (DOLS)

DOLS were introduced to provide a legal framework around depriving a person of their liberty. Specifically they were introduced to prevent breaches of the European Convention of Human Rights (ECHR) as identified in the case of HL v United Kingdom, now commonly referred as the ‘Bournewood’ judgement.

To prevent further breaches of ECHR the Mental Capacity Act 2005 has been amended to provide safeguards for people whom lack capacity specifically to consent to treatment or care in a hospital or care home, and this can only be provided in circumstances that amount to depriving a person of their liberty.

DOLS means that a ‘managing authority’ (which is the hospital or care home) must seek authorisation from a ‘supervisory body’ (PCT or Local Authority) in order to be able to lawfully deprive someone of their liberty. If the person who a deprivation is being proposed meets stage 2 and 3 then the supervisory body must instruct an IMCA to represent the person; this is called a 39A IMCA and applies to urgent and standard authorisations.

Once a deprivation has been authorised then the person has the statutory right to the support of a ‘relevant person’s representative’ which can be a family member or friend, or a paid person if there are no family or friends suitable and available.

There are also two further reasons when an IMCA can be instructed to support a client under the DOLS legislation. When there is a gap in recruiting or appointing a relevant person’s representative then an IMCA must be instructed until a representative can be found; this is called a 39C IMCA and should be instructed for fixed periods between appointing representatives.

Both the person being deprived of their liberty and their representative also have a right to IMCA support once the authorisation has been granted; this is called a 39D IMCA and the role is designed to assist a person or representative to understand their authorised deprivation and how they can request a review. An IMCA must be instructed whenever the person or their representative has requested. Paid representatives cannot request the support of IMCA.

We currently provide IMCA services in the following boroughs:

South London

  • Southwark

East London

  • Waltham Forest

For further information please call our IMCA duty on 020 7358 7000 which is available 9am to 5pm Monday to Friday and where a qualified IMCA will answer any queries. Or email imca@ch1889.org

To make a referral please either email to imca@ch1889.org or fax to 0845 300 8161