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Mental Capacity Act (MCA) practice guidance


Part 15 Independent Mental Capacity Advocates

[MCA section 35; Code of Practice chapter 10]

The Devon and Torbay Independent Mental Capacity Advocates (IMCA) service has a specific role prescribed by the Mental Capacity Act. It works on behalf of people who:

  • lack capacity to make a particular decision
  • have no family or friends and so no-one unpaid who can be consulted. People in this situation are described as ‘unbefriended’.

Under safeguarding, this second criteria might be used more flexibly, where it is considered to be in the best interests of the person.

There is a statutory responsibility to instruct an IMCA where the person meets the criteria and a decision needs to be made:

  • about a proposed change of accommodation – where Devon or Torbay is proposing to provide accommodation for someone for more than 8 weeks (MCA section 38). This applies if the local authority is making the arrangements or contracting for the accommodation
  • if the person is admitted to an NHS facility for more than 28 days (MCA section 39)
  • about proposed serious medical treatment. Where a serious medical treatment decision is being considered for a person who is eligible, the Act imposes a duty on the NHS body to instruct an IMCA.

An IMCA could also be instructed:

  • when local authorities or NHS bodies ‘propose to take or have taken, protective measures in relation to a person who lacks capacity to agree to one or more of the measures and
    where safeguarding adults proceedings have been instigated. The primary focus for IMCAs in safeguarding adults proceedings are the decisions concerning protective measures (including decisions not to take protective measures)’.
  • at a Care Plan review.

The IMCA also has a number of specific functions within the Deprivation of Liberty Safeguards process. Where the person is un-befriended the supervisory body must instruct an IMCA. (SCIE Guidance)

The IMCA role

The IMCA will:

  • meet with the person – the IMCA has a right to see the person alone in private. It is essential that the individual is placed at the centre of any process that involves decisions about them, so the IMCA will build a picture of that individual, their views, values and wishes.
  • talk to anyone who may have information and examine any relevant records – the Mental Capacity Act gives the IMCA the right to see all relevant health and social and care records (MCA section 35)
  • find out what alternative options there are – the IMCA will ask whether the proposed option is less restrictive of the person’s rights or future choices
  • produce a report to support the decision-making process – this should be evidence-based reflecting the persons views and wishes. The report may also comment on possible alternative courses of action. Ultimately it is the decision-maker who must make the decision in the person’s best interests, but they must take account of the report and information given by the IMCA
  • support the person through the decision-making process.

Working with an IMCA

The decision-maker should keep the IMCA informed about the best interests process and about the decision when it’s made.

Once an IMCA is instructed they remain so until ‘de-instructed’ by the decision-maker, except in the safeguarding process, so it’s essential that the decision-maker is aware of the IMCA’s role and contribution.

The IMCA service will work in the bounds of confidentiality and the Data Protection Act at all times. The IMCA report is prepared for the decision-maker and should not be made available to others without their agreement, or as part of a best interests decision.

There is no statutory requirement for the IMCA service to have access to a copy of a mental capacity assessment before acting on the instruction; but all information given to the IMCA will help the process and guide the IMCA.

Before making an instruction for an IMCA in safeguarding adults, it is necessary to assess the person as lacking capacity for at least one protective measure which is either being considered, or has been put in place.

To make a referral phone 0845 2311900 or email imca.devon@nhs.net
You can also download a referral form
The IMCA service will respond to all referrals within 48 hours.


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