Adult Social Care Glossary, v 0.6

(1) The appropriate authority may make regulations as to the functions of independent mental capacity advocates.

(2) The regulations may, in particular, make provision requiring an advocate to take such steps as may be prescribed for the purpose of--
(a) providing support to the person whom he has been instructed to represent or support so that that person may participate as fully as possible in any relevant decision;
(b) obtaining and evaluating relevant information;
(c) ascertaining what the wishes and feelings of the person the advocate has been instructed to represent ('P') would be likely to be, and the beliefs and values that would be likely to influence P, if he had capacity;
(d) ascertaining what alternative courses of action are available in relation to P;
(da) in the case of an advocate instructed to support an appropriate person where paragraph 43 of Schedule AA1 applies, supporting that person to ascertain--
(i) what the wishes and feelings of the cared-for person who that appropriate person represents and supports would be likely to be and the beliefs and values that would be likely to influence the cared-for person;
(ii) what alternative courses of action are available in relation to the cared-for person who that appropriate person represents and supports;
(e) obtaining a further medical opinion where treatment is proposed and the advocate thinks that one should be obtained.

(3) The regulations may also make provision as to circumstances in which the advocate may challenge, or provide assistance for the purpose of challenging, any relevant decision.

Appointment of independent mental capacity advocates

5.—(1) No person may be appointed to act as an IMCA for the purposes of sections 37 to 39 of the Act, or regulations made by virtue of section 41 of the Act, unless—
(a) he is for the time being approved by a local authority on the grounds that he satisfies the appointment requirements, or
(b) he belongs to a class of persons which is for the time being approved by a local authority on the grounds that all persons in that class satisfy the appointment requirements.

(2) The appointment requirements, in relation to a person appointed to act as an IMCA, are that—
(a) he has appropriate experience or training or an appropriate combination of experience and training;
(b) he is a person of integrity and good character; and
(c) he is able to act independently of any person who instructs him.

(3) Before a determination is made in relation to any person for the purposes of paragraph (2)(b), there must be obtained in respect of that person—
(a) an enhanced criminal record certificate issued pursuant to section 113B of the Police Act 1997(7); or
(b) if the purpose for which the certificate is required is not one prescribed under subsection (2) of that section, a criminal record certificate issued pursuant to section 113A of that Act.

Functions of an independent mental capacity advocate

6.—(1) This regulation applies where an IMCA has been instructed by an authorised person to represent a person (“P”).

(2) “Authorised person” means a person who is required or enabled to instruct an IMCA under sections 37 to 39 of the Act or under regulations made by virtue of section 41of the Act.

(3) The IMCA must determine in all the circumstances how best to represent and support P.

(4) In particular, the IMCA must—
(a) verify that the instructions were issued by an authorised person;
(b) to the extent that it is practicable and appropriate to do so—
(i) interview P, and
(ii) examine the records relevant to P to which the IMCA has access under section 35(6) of the Act;
(c) to the extent that it is practicable and appropriate to do so, consult—
(i) persons engaged in providing care or treatment for P in a professional capacity or for remuneration, and
(ii) other persons who may be in a position to comment on P’s wishes, feelings, beliefs or values; and
(d) take all practicable steps to obtain such other information about P, or the act or decision that is proposed in relation to P, as the IMCA considers necessary.

(5) The IMCA must evaluate all the information he has obtained for the purpose of—
(a) ascertaining the extent of the support provided to P to enable him to participate in making any decision about the matter in relation to which the IMCA has been instructed;
(b) ascertaining what P’s wishes and feelings would be likely to be, and the beliefs and values that would be likely to influence P, if he had capacity in relation to the proposed act or decision;
(c) ascertaining what alternative courses of action are available in relation to P;
(d) where medical treatment is proposed for P, ascertaining whether he would be likely to benefit from a further medical opinion.

(6) The IMCA must prepare a report for the authorised person who instructed him.

(7) The IMCA may include in the report such submissions as he considers appropriate in relation to P and the act or decision which is proposed in relation to him.

Challenges to decisions affecting persons who lack capacity

7.—(1) This regulation applies where—
(a) an IMCA has been instructed to represent a person (“P”) in relation to any matter, and
(b) a decision affecting P (including a decision as to his capacity) is made in that matter.

(2) The IMCA has the same rights to challenge the decision as he would have if he were a person (other than an IMCA) engaged in caring for P or interested in his welfare.

Adjustment of the obligation to make arrangements imposed by section 35 of the Act

2. Arrangements made by the Secretary of State under section 35 of the Act may include such provision as she considers reasonable for the purpose of enabling IMCAs to be available to represent and support persons in the circumstances specified in regulation 3 or 4.

Review of arrangements as to accommodation

3.—(1) The circumstances specified in this regulation are where—
(a) qualifying arrangements have been made by an NHS body or local authority as to the accommodation of a person (“P”) who lacks capacity to agree to the arrangements;
(b) a review of the arrangements is proposed or in progress (whether under a care plan or otherwise);
(c) the NHS body is satisfied, or the local authority are satisfied, that there is no person, other than a person engaged in providing care or treatment for P in a professional capacity or for remuneration, whom it would be appropriate to consult in determining what would be in P’s best interests;
(d) none of the following exist—
(i) a person nominated by P (in whatever manner) as a person to be consulted in matters affecting his interests,
(ii) a donee of a lasting power of attorney created by P,
(iii) a deputy appointed by the Court of Protection for P, or
(iv) a donee of an enduring power of attorney (within the meaning of Schedule 4 to the Act) created by P; and
(e) sections 37, 38 and 39 of the Act do not apply.

(2) In this regulation—
“accommodation” means—
(a) accommodation in a care home or hospital, or
(b) residential accommodation provided in accordance with—
(i) section 21 or 29 of the National Assistance Act 1948, or
(ii) section 117 of the Mental Health Act 1983,
as the result of a decision taken by a local authority under section 47 of the National Health Service and Community Care Act 1990;
“care home” and “hospital” have the same meaning as in section 38 of the Act; and
“qualifying arrangements” means arrangements—
(a) under which accommodation has been provided for P for a continuous period of 12 weeks or more, and
(b) which are not made as a result of an obligation imposed on P under the Mental Health Act 1983.

Adult protection cases

4.—(1) The circumstances specified in this regulation are where—
(a)an NHS body proposes to take or has taken, or a local authority propose to take or have taken, protective measures in relation to a person (“P”) who lacks capacity to agree to one or more of the measures;
(b) the proposal is made or the measures have been taken—
(i) following the receipt of an allegation or evidence that P is being, or has been, abused or neglected by another person or that P is abusing, or has abused, another person, and
(ii) in accordance with arrangements relating to the protection of vulnerable adults from abuse which are made pursuant to guidance issued under section 7 of the Local Authority Social Services Act 1970(10); and
(c) none of the following provisions apply—
(i) section 37, 38 or 39 of the Act, or
(ii) regulation 3 of these Regulations.

(2) The reference to protective measures in relation to P includes measures to minimise the risk that any abuse or neglect of P, or abuse by P, will continue.

Someone who provides support and representation for a person who lacks capacity to make specific decisions, where the person has no-one else to support them. The IMCA service was established by the Mental Capacity
Act 2005 and is not the same as an ordinary advocacy service.

Someone who provides support and representation for a person who lacks capacity to make specific decisions, where the person has no-one else to support them. The IMCA service is established under section 35 of the Act and the functions of IMCAs are set out in section 36. It is not the same as an ordinary advocacy service.

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.

Works under the Mental Capacity Act to support people who can’t make or understand decisions by representing their views and Best Interests if they do not have a suitable friend of family member to represent them. This is a statutory role and should be actively referred to when significant decisions arise.

An independent person who is knowledgeable about the Mental Capacity Act and people's rights. An IMCA represents someone who does not have capacity to consent to specific decisions, such as whether they should move to a new home or agree to medical treatment. The law says that people over the age of 16 have the right to receive support from an IMCA, if they lack capacity and have no-one else to support or represent them.

Part 5 of Schedule AA1 to the Mental Capacity Act makes explicit provision for an IMCA to be appointed in respect of a person subject to Deprivation of Liberty Safeguards