Part of the Mental Capacity Act 2005, the Independent Mental Capacity Advocacy (IMCA) service provides an independent safeguard for people who lack mental capacity to make certain important decisions and, where such decisions need to be made, there is no-one other than paid staff to support or represent the person or to be consulted about the decision. Since the implementation of the Mental Capacity Act, the IMCA role has been extended to include support and representation for people who lack mental capacity in regard to adult safeguarding measures, reviews of their accommodation arrangements (where this has been arranged by the NHS or a local authority) and the Deprivation of Liberty Safeguards (DoLS). IMCAs are instructed by ‘decision makers’ on behalf of local authorities or NHS bodies to work with and support people who lack mental capacity and to represent their views to those who are working out what is in the person’s best interests. 

About the IMCA Role

What is an 'IMCA'?

Independent Mental Capacity Advocates or ‘IMCAs’ are statutory advocates providing a legal safeguard for people affected by the Mental Capacity Act 2005. Where a person is assessed as lacking mental capacity to make certain decisions, namely a decision about serious medical treatment or long term accommodation arrangements, and where professionals do not have someone appropriate to consult about what would be in the person’s best interests, an IMCA must be instructed in order to support and represent the person.

Who instructs an IMCA?

Professionals representing local authorities or NHS bodies who are making a decision on behalf of a person who lacks mental capacity to do so are referred to as ‘decision makers’. Where the legal criteria for the instruction of an IMCA is met, decision makers must both instruct an IMCA and take into account any information given or submissions made by them, including in the form of a written report. While it is ultimately the local authority or NHS body who has responsibility for ensuring decisions made on behalf of people who lack mental capacity comply with the Mental Capacity Act, including in regard to the instruction of IMCAs, day-to-day it is decision makers who should ensure that an IMCA is instructed where the duty arises. For more information on whether you need to instruct an IMCA, please see IMCA FAQs. 

What does an IMCA do?

In the course of their instruction an IMCA will normally provide support to the person they are representing so that the person may participate as fully as possible in the relevant decision. The IMCA will also obtain and evaluate information relevant to the person and the decision, including the alternative courses of action that may be available, which in treatment cases may involve obtaining a further medical opinion if the IMCA thinks this is needed. IMCAs will focus on ascertaining what the person’s wishes and feelings would be likely to be about the decision and the beliefs and values that would be likely to influence them if they had capacity.

In order to carry out these functions IMCAs may use their legal rights to meet and speak with the person who they are representing in private and to examine and take copies of any relevant health or local authority (social services) or registered care provider records.

Fundamentally, IMCAs will act independently of the decision maker and public body that has instructed them. In the course of their work they will usually raise questions and may challenge decisions which appear not to be in the best interests of the person, including in the Court of Protection. Ultimately, the IMCAs’ role is to represent the person who lacks capacity in working out whether the proposed decision is in their best interests. 

IMCA FAQs

1. What type of decisions or cases need or may benefit from IMCA instruction?

The legal duty to instruct an IMCA arises where serious medical treatment decisions (section 37) or change of accommodation decisions (sections 38 and 39) are being made. The legal duty also arises where a person lacking capacity becomes subject to the Deprivation of Liberty Safeguards (sections 39A, 39C and 39D). In addition, IMCAs may be instructed (there is no legal duty) where a person lacks capacity in regard to proposed measures arising from an adult safeguarding investigation or a review of their accommodation arrangements where the person lacks capacity to agree to those arrangements.

2. What are the criteria for instructing an IMCA?

All practicable steps should have already been taken to support the person to make the relevant decision without success, in accordance with section 1(3) of the MCA, and the person should have been assessed as lacking mental capacity following the steps set out in section 3. This assessment of capacity should be completed and documented as close as possible to the time that the decision needs to be made.

It is then dependent upon whether there is anyone appropriate to consult about whether the decision is in the person’s best interests, except in adult safeguarding cases, where this is not a condition of instructing an IMCA. Those who are engaged in providing care or treatment for the person in a professional or paid capacity cannot act as an appropriate person for this purpose. In the majority of cases family members will be consulted but a person appropriate to consult can include anyone named by the person as someone to be consulted, anyone (unpaid) engaged in caring for them or anyone interested in their welfare. Ultimately it is the local authority or NHS body who will decide who is appropriate to consult, however this should follow the guidance set out in Chapter 10 of the MCA Code of Practice.

A person may have family members who refuse to be consulted or may not be considered appropriate to consult, for example a family member who has not seen the person for many years or where there are allegations of abuse. IMCAs are intended to be a safeguard for those people who lack capacity, who have no-one close to them who it would be appropriate to consult. The decision not to consult someone should not be taken because of convenience. If a family member disagrees with a decision maker’s proposed action, this is not grounds for concluding that they are not appropriate to consult. 

3. What is 'Serious Medical Treatment' for the purposes of IMCA instruction?

Serious Medical Treatment decisions are defined by section 37 of the Mental Capacity Act and relevant regulations as “treatment which involves providing, withholding or withdrawing treatment in circumstances where:

(a) in a case where a single treatment is being proposed, there is a fine balance between its benefits to the patient and the burdens and risks it is likely to entail,

(b) in a case where there is a choice of treatments, a decision as to which one to use is finely balanced, or

(c) what is proposed would be likely to involve serious consequences for the patient. (the MCA Code of Practice states: ‘serious consequences’ are those which could have a serious impact on the patient, either from the effects of the treatment itself or its wider implications. This may include treatments which: cause serious and prolonged pain, distress or side effects; have potentially major consequences for the patient (for example, stopping life-sustaining treatment or having major surgery such as heart surgery), or; have a serious impact on the patient’s future life choices (for example, interventions for ovarian cancer).

The MCA, Regulations or Code do not set out all types of procedures that may amount to ‘serious medical treatment’, however the Code provides some examples of medical treatments that would normally be considered serious:

• chemotherapy and surgery for cancer

• electro-convulsive therapy

• therapeutic sterilisation

• major surgery (such as open-heart surgery or brain/neuro-surgery)

• major amputations (for example, loss of an arm or leg)

• treatments which will result in permanent loss of hearing or sight

• withholding or stopping artificial nutrition and hydration, and

• termination of pregnancy. 

4. What is a 'Change of Accommodation' for the purposes of IMCA instruction?

A change of accommodation refers to one of two types of move. The first is a move to a hospital where the responsible body is the NHS organisation that a) either manages the hospital or b) arranges and funds the person’s care, and where it is anticipated that the move will be for a period of 28 days or more. The second, is a move to longer term accommodation where the responsible body is either an NHS organisation or local authority and it is anticipated that the move will be for a period of 8 weeks or more. A move to longer term accommodation can include a move to a care home, nursing home, ordinary and sheltered housing, housing association or other registered social housing or in private sector housing provided by a local authority or in hostel accommodation. A change of accommodation does not include where a person has been moved or accommodated as a result of an obligation imposed on them by the Mental Health Act 1983. 

5. What can IMCAs do in 'care review' and 'adult protection' cases?

The statutory IMCA role was expanded by the The Mental Capacity Act 2005 (Independent Mental Capacity Advocates) (Expansion of Role) Regulations 2006 to include two additional functions:

  • to represent and support a person whose accommodation arrangements have been made by an NHS body or local authority where those arrangements are being reviewed and the person lacks capacity to agree to those arrangements and has no one appropriate to consult in deciding what would be in their best interests.
  • to represent and support a person who is alleged, as part of a relevant adult safeguarding investigation, to be either the victim of or perpetrator of abuse or neglect, and where protective measures are being taken or proposed the person lacks capacity in regard to one or more of those measures. NB. it is not a requirement for adult protection cases that the person is ‘unbefriended’.

These additional roles do not extend a legal duty on public bodies to instruct IMCAs in these types of cases. The purpose of the Regulations are to make IMCAs “be available” for people who lack mental capacity in these circumstances, meaning the instruction of IMCAs is discretionary. However, relevant professionals should consider case-by-case whether a person in these circumstances or the process of determining what would be in their best interests would benefit from support and representation from an IMCA.

6. How do IMCAs help people subject to the Deprivation of Liberty Safeguards (DoLS)?

Sections 39A, 39C and 39D of the Mental Capacity Act set out the three types of role that IMCAs undertake to support and represent people who may be subject to Schedule A1 to the Mental Capacity Act, also known as the Deprivation of Liberty Safeguards and commonly referred to as ‘DoLS’.

  • 39A IMCAs represent people who have become subject to the DoLS in the hospital or care home they are in, where there is no one else appropriate to consult in determining what would be in the person’s best interests, other than those providing care or treatment in a professional capacity or for payment. Where this is the case, Supervisory Bodies (local authorities) must instruct a 39A IMCA where: a) an urgent authorisation is given before a request is made for a standard authorisation, b) the managing authority of the relevant hospital or care home make a request for a standard authorisation, or c) a best interests assessor has been appointed by the supervisory body to check whether a person is being unlawfully deprived of their liberty. The 39A IMCA’s role is to represent the person in the various assessments, particularly the ‘best interests assessment’, which will be carried out. In carrying out an assessment under the DoLS, the relevant assessor must take into account any information given, or submissions made by the IMCA. If a standard authorisation is granted the 39A IMCA’s role ends when the relevant person’s representative is appointed. The IMCA may only stay involved then if they are making an application to the Court of Protection to challenge the authorisation. This includes the 39A IMCA seeking permission to make an application to the Court of Protection as well as supporting the person to make an application on their own behalf, for example as litigation friend. 
  • 39C IMCAs must be instructed by a supervisory body where a ‘standard authorisation’ under the DoLS is in force and the appointment of the relevant person’s representative ends. The 39C IMCA role is intended to cover the period during which the supervisory body is actively looking for another representative, including via a paid representative service if no other alternative is available. During this time, the 39C IMCA undertakes the role of the relevant person’s representative, maintaining contact with the relevant person, and representing and supporting them in all matters relating to the DoLS.
  • 39D IMCAs must be instructed by a supervisory body where a ‘standard authorisation’ under the DoLS is in force and where the relevant person or their representative makes a request to the supervisory body to instruct an advocate or the supervisory body believe that, without the help of an advocate, the person or their representative would be unable to exercise a ‘relevant right’ or have failed to or are unlikely to exercise a relevant right when it would be or would have been reasonable to exercise it. Under section 39D a ‘relevant right’ refers to the right to apply to court (i.e. the Court of Protection), and the right of review of a standard authorisation under Part 8 of the Schedule A1. The 39D IMCA will take practical steps to help the person, their representative or both to understand the effect, purpose, duration and relevant conditions relating to the standard authorisation and the reasons why the relevant assessor carrying out those assessment relating to the authorisation decided that the person met the ‘qualifying requirements’. The IMCA will also help the person and / or their representative to understand the relevant rights and how to exercise these rights and to help the person or representative to exercise the right to apply to court or the right of review if they wish to exercise that right. If the IMCA provides this help, they may make submissions to the supervisory body on the question of whether a qualifying requirement is reviewable or may give information, or make submissions, to any assessor carrying out a review assessment.
Further Reading: Chapter 10 of Mental Capacity Act 2005 Code of Practice
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