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Independent Mental Capacity
Advocacy (IMCA) Service
Referral Guidance
Please Note: Referrals can only be accepted
from relevant personnel employed by a Local Authority, NHS Trust or LHB.
If you are unsure prior to referring
to the IMCA Service please speak to the IMCA Service Manager for your area.
For South West Region (Swansea, Bridgend, Neath & Port
Talbot)
Ring Peter
Wakeford on 01656 738750 between 9-5 Mon-Fri
For South East Region (Vale of
Glamorgan, Rhondda Cynon Taff, Cardiff, Caerphilly, Merthyr Tydfil, Blaenau
Gwent, Newport,
Torfaen and Monmouthshire)
Ring John
Kirkham on 01443 810871 between 9-5 Mon-Fri
Referral forms to the IMCA service
can be downloaded HERE
Completed forms can be returned via
fax to 01656 736583 for the South
West Region, 01443 812664 for the
South East Region by email to imca@imcawales.org
or by post to:
For the South West Region:
IMCA, 112-113 Commercial
Street, Maesteg, CF34 9DL
For the South East Region:
IMCA, Top Floor Offices, Pier Head Buildings, Bedwlwyn Road,
Ystrad Mynach, Hengoed,
CF82 7AA
Contents
1.
The purpose and scope of the IMCA
service
2.
The role, functions,
responsibilities and powers of
the
IMCA
3.
Criteria and procedure for
referring a person to the
IMCA service
4.
Who should not be referred
5. Comments
and Complaints about the IMCA service
1. The purpose and scope of
the IMCA service
A
full and clear definitive description of the Independent Mental Capacity
Advocate (IMCA) Service can be found in the Department of Constitutional
Affairs’ Mental Capacity Act 2005 ‘Code of Practice’ (the ‘Code’) (Chapter
10 primarily, but should be read in conjunction with other chapters). The
Code is available for viewing or downloading from HERE
The
IMCA service is a statutory form of advocacy that provides independent
safeguards for people who lack capacity to make certain decisions and, at
the time such decisions need to be made, have no one else (other than paid
staff) to support or represent them or be consulted.
It
is not normally available to people who have family or close friends who
can be consulted about the decision, unless they are subject to Protection
of Vulnerable Adult Procedures.
An
IMCA must be instructed, and then consulted whenever (a person meets
the following criteria and):
·
an NHS body is proposing to
provide serious medical treatment, or
·
an NHS body or local authority
is proposing to arrange accommodation (or a change of accommodation) in
hospital or a care home, and
·
the person will stay in
hospital longer than 28 days, or
·
they will stay in the care home for more than 8 weeks.
It is expected that the majority of the referrals to the IMCA service
will be in respect of people in the following groups:
·
People with
dementia
·
People with
learning disabilities
·
However, it is
anticipated that referrals will also be made for:
·
People who
have experienced strokes
·
People with
physical disabilities
·
People with
acquired brain injuries
·
People with
mental ill health
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2. The
role, functions, responsibilities
and powers of the IMCA
The IMCA role
The
IMCA’s main role is to give an independent report
on the person’s current or past wishes, culture, beliefs and known needs in
order to help the professional i.e. (the ‘decision maker’) making the
decision to ensure that he/she is working in the person’s best interests.
The
IMCA does not make the decision about whether or not the treatment or move
goes ahead; this decision remains with the decision maker. Rather, the advocate will gather
information about the person’s wishes, values and circumstances as well as
identifying possible alternative courses of action, in order to inform the
final decision.
In the
event that the IMCA and the decision maker disagree (for example, as to the
person’s capacity to make a decision, or what is in the person’s best
interests) the IMCA may need to challenge the decision made.
People
who need IMCA are likely to be facing a crisis. IMCAs
will therefore work as quickly as possible to establish the wishes and
needs of the person, and the views of those who care for them.
IMCA Functions and
Responsibilities
The functions and
responsibilities of an IMCA advocate are set out in chapter 10 of the Code.
They include:
·
confirming the person making the referral has the
authority to do so
·
acting in accordance with the principles of the Mental
Capacity Act (as set out in chapter 2 of the Code) and taking account of
the guidance in the Code
·
representing and supporting the person who lacks
capacity
·
obtaining the view of relevant professionals and other
workers providing care or support to the person who lacks capacity
·
obtaining and evaluating information
·
ascertaining the person’s wishes and feelings, as far as
possible
·
ascertaining alternative courses of action – for
example, looking at different care arrangements or residential homes
·
obtaining a further
independent medical opinion, if necessary.
In
order to represent the person who lacks capacity to make the decision, the
IMCA will need to investigate the particular circumstances of the
vulnerable person
in relation to aspects of the ‘best interests checklist’ (see chapter 5 of
the Code). These include:
·
whether the person is likely to regain capacity in
relation to the matter in question, and if so, when that is likely to be;
·
the need to permit and encourage the person to
participate, or to improve his/her ability to participate, as fully as
possible in any act done for and any decision affecting him/her;
·
so far as these can be ascertained, the past and present
wishes and feelings of the person concerned, any beliefs and values that
may have influenced the decision in question, and the factors which the
person would consider if able to do so;
·
Any other relevant factors, including for example, the
need to promote the human rights of the person concerned.
·
In addition, the advocate will need to consider whether
the principles set out in Section 1 of the Act have been complied with. In
particular:
·
Where there is more than one course of action or a
choice of decisions to be made, the IMCA will need to check whether all
possible options or alternatives have been explored and whether the
proposed option would be the least restrictive of the person’s future
choices or would allow him/her the most freedom.
·
They should also check that the person has been given
adequate support to try to make his or her own decision and that he or she
does in fact lack capacity in relation to the decision in question.
IMCA
Powers
In
order to carry out their functions effectively, IMCAs
are given certain powers by the Act.
IMCA
advocates are entitled:
To
see the person they are representing in private. This means that they
should be able to talk with the person in a private room, where their
conversation cannot be overheard or monitored. A bed on a multi-bed ward
would not normally be acceptable.
The only exceptions to this would be:
·
Where the individual refuses the option of going to a
private room to talk
·
Where it is medically unsafe or physically impossible
for the patient to leave their bed
To have access to the
person’s medical and health records, and to take copies from these. IMCA advocates are entitled to inspect
and, if they wish, to take copies from the records of individuals they are
representing, so long as the record holder deems the records to be
relevant.
When
an advocate needs to access individual records, they will usually make this
request to the decision-maker. The date of requests for information will be
recorded.
To
request further medical opinions.
IMCA advocates are entitled
to request further medical opinions if they believe this will help them to
gain a clearer understanding of a patient’s needs, or of the treatments or
outcomes which may be available.
Advocates
requesting a further medical opinion will make their request to the
consultant responsible for the patient’s care. The initial request may be
verbal, but will always be confirmed in writing.
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3. Criteria and procedure for referring a person to the
IMCA service
(a) The referral criteria
The referral criteria for the
IMCA service are very clearly defined in Chapter 10 of the Code, and referrals
outside of the criteria cannot be accepted. The following questions may
help those considering making a referral to ensure that the referral is
appropriate:
What decisions must be
referred?
The referral criteria for the
IMCA service are set out in summary in section 1 (pages 3-4) of this guide
(and definitively in chapter 10 of the Code).
It is important to note that
each new decision about a person who lacks capacity requires a new referral
to be made. An IMCA will report on a
specific decision, about a specific person, at a particular time.
The IMCA service will not be involved in emergency cases where serious
medical treatment or change of accommodation needs to be dealt with
urgently in order to save the person’s life or prevent a serious
deterioration in his/her condition. However a referral may need to be made
following the emergency (see 10.46 of the Code.)
Am
I the right person to make the referral?
Referrals
can only be accepted from the ‘decision maker’ or someone authorised by the
decision maker to make the referral on his/her behalf. The decision maker will be the key
professional, based in the most relevant statutory agency, who has the
responsibility to make the decision as to what will happen.
For
example, the decision maker for a decision about a person’s medical
treatment will normally be the senior medical member of staff responsible
for the patient’s treatment. In the case of a change of accommodation
decision, it will usually be the responsible social worker, or senior
medical member of staff. For guidance on who can be a decision maker see
5.8 to 5.12 of the Code.
Does
the person being referred lack capacity to make the decision in question?
Before
a referral is made to IMCA, the decision maker or another competent person
must determine whether or not the person being referred has capacity to
make the decision in question. Only
if they lack capacity should the IMCA service be contacted. Chapters 3 and 4 of the Code gives
detailed guidance on what support should be provided to help someone make a
decision for him/herself and on assessing
capacity.
(If,
in working with an individual who has been assessed as lacking capacity,
the advocate believes that the person, in fact, has capacity to make the
decision in question, the advocate, may request a re-assessment.)
What
is ‘serious medical treatment’?
The
Code (10.43) gives the following definition of ‘serious medical treatment’:
Serious
medical treatment is defined as treatment that involves giving new
treatment, stopping treatment that has already started, or withholding
treatment that could be offered in circumstances where:
·
if a single treatment is being proposed there is a fine
balance between the likely benefits and the likely burdens to the patient
including the risks involved
·
a decision between a choice of treatments is finely
balanced, or
·
what is
proposed is likely to have serious consequences for the patient.
·
What does moving into, or between, care settings mean?
The
IMCA service should be contacted when an NHS body or local authority is
proposing to arrange accommodation (or a change of accommodation) in
hospital or a care home, and
the person will stay in hospital
longer than 28 days, or he/she will stay in the care home for more than 8
weeks.
‘Care
home’ may include warden-assisted accommodation, supported living, and
other arrangements made by the local authority.
What
does ‘lacking family or friends’ mean?
People
can only get support from an IMCA if they lack family or friends with whom
the decision maker can realistically consult. This may mean that the person
has no living family, but it could also mean that they have little or no
contact with their family, or that any known family or friends are too far
away to play a meaningful part in consultation.
The
exception to this is in Adult Protection Cases where an IMCA can be
instructed even where a person has family or friends available for
consultation.
IMCAs
should not be involved simply because family or
friends disagree with the decision maker.
Self-funding
According
to the Code (10.56), people who fund themselves in long-term accommodation
have the same rights to an IMCA as others, if the local authority:
carries out an assessment under
section 47 of the NHS and Community Care Act 1990, and decides it has a
duty to the person (under either Section 21 or Section 29 of the National
Assistance Act 1947, or Section 117 of the Mental Health Act 1983).
(b) The Referral Process
Making
a Referral
Referrals should come from the decision maker although, in practice,
they may delegate the task.
Referrals can be discussed in the first instance by contacting in the
South West Region: Peter Wakeford
by telephone on 01656 767045 or for the South East region: John Kirkham by telephone on 01443 810871. This
must be followed up by completing the IMCA referral form which can be
downloaded from www.imcawales.org
. Referral forms should be returned to the relevant regional office as
identified at the top of this page or via email imca@imcawales.org (all attachments
read only) or faxed to 01656 663397 (South West region) or 01443 812664
(South East Region).
If a referrer has concerns about the client posing a risk to the IMCA
in a face to face meeting, the referrer should contact the IMCA service
manager to outline the risks as well as indicating these on the referral
form.
What
will happen after referral?
We
aim to respond to all appropriate referrals as soon as possible. We would expect to begin working with a
referral, usually by contacting the decision maker or by visiting the
person concerned, within 2 working days.
The
work of the IMCA may include meeting the person who lacks capacity, talking
to the decision maker and other relevant paid staff and others, and
examining written information (see section 2 (pages 5-7) for a summary of
IMCA role, functions, responsibilities and powers).
Once
the IMCA has finished their enquiry they will submit a report of their
findings to the decision maker.
Since the decision maker’s decision of what is in the best interests
of the person who lacks capacity must be delayed until the IMCA’s report is available, the IMCA will work with all
due urgency to deliver their report.
Once
the decision maker has received the IMCA report and made their decision,
they are required to inform the IMCA of the final decision and the reason
for it (see 10.14 of the Code).
In
the event of it becoming clear that the IMCA and the decision maker (or
other key staff) disagree, the IMCA will attempt through discussion and
negotiation to resolve the disagreement.
In the event that this is not possible, the IMCA may decide to challenge
the decision through formal appeals and/or complaints procedures.
Confidentiality
IMCA advocates are entitled
to inspect and, if they wish, to take copies from the records of
individuals they are representing, so long as the record holder deems the
records to be relevant.
When
an advocate needs to access individual records, they will usually make this
request to the decision-maker.
IMCAs will keep any copies of
records they receive in locked cabinets.
The records will be destroyed three months after the decision on
treatment or care is taken. If the
decision is the subject of appeal or complaint, the records will be
destroyed once the appeals process is complete.
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4. Who should not be referred to the IMCA
service?
Access
to the IMCA service is strictly limited to people who fall within the
categories of circumstances and types of decisions summarised in section 1
(pages 3-4) of this guide (and in definitive detail in Chapter 10 of the
Code).
In
considering making a referral, it should be noted that sections 2 and 3 of
the Mental Capacity Act 2005 make it clear that:
the
starting assumption must always be that a person has the capacity to make a
decision, unless it can be established that they lack capacity,
a
person’s capacity must be assessed specifically in terms of their capacity
to make a particular decision at the time it needs to be made, and
a person’s capacity must not be
judged simply on the basis of their age, appearance, condition or an aspect
of their behaviour.
The IMCA service will not be
involved in cases of emergency treatment where the proposed treatment needs
to be dealt with urgently in order to save the person’s life or prevent a
serious deterioration in his/her condition.
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5. Comments and complaints about the IMCA service
IMCA
Wales welcomes comments about the IMCA service.
Questions
or complaints should in the first instance be addressed to:
For
the South West Region:
Peter Wakeford
IMCA
Service Manager
Mental
Health Matters Wales
(IMCA Wales)
112-113 Commercial Street
Maesteg
CF34
9DL
Tel:
01656 738750
Email:
imca@imcawales.org
For
the South East Region:
John Kirkham
IMCA
Service Manager
Mental
Health Matters Wales (IMCA Wales)
Top
Floor Offices
Pier
Head Buildings
Bedwlwyn Road
Ystrad
Mynach
CF82
7AA
Tel:
01443 810871
Email:
imca@imcawales.org
If
this does not resolve the issue, or if you wish to make a formal complaint,
please contact:
Jan Kearn
Director
Mental
Health Matters Wales
63 Nolton Street
Bridgend
CF31
3AE
Tel:
01656 651450
Email:
jan.kearn@mhmwales.org
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