6.9 Independent Mental Capacity and Mental Health Advocacy

1. Introduction

This policy sets out how Lancashire County Council will meet its statutory duties in relation to the provision of independent advocacy under the Mental Capacity Act (2005) and Mental Health Act (1983).

2. Policy Aim

The policy aims to:

• Support vulnerable people who lack mental capacity to make specific important decisions and to participate in decisions about their care and support;
• Support vulnerable people who have no one (such as family or friends) to support and/or represent their best interests when making decisions which have far-reaching consequences for the them.

3. The Legal Framework

The Mental Capacity Act (2005) describes the criteria for assessing a lack of mental capacity and the situations in which an Independent Mental Capacity Advocate (IMCA) must or may be provided.

The Deprivation of Liberty Safeguards (DoLS) protect those who may lack the mental capacity to consent to arrangements for their treatment or care in a hospital or care home and where levels of restriction or restraint used in delivering that care are so extensive as to deprive the person of their liberty. The relevant person and their representative have the right to be represented by an IMCA as part of the DoLS process.  See Deprivation of Liberty Safeguards chapter.

The purpose of the IMCA Service is to help particularly vulnerable people who lack the mental capacity to make specific important decisions and lack family or friends to represent their best interests.  The Mental Capacity Act enables and supports people who lack mental capacity. Within this framework the IMCA’s role is to support and represent a person when decisions are being made by others on their behalf.

IMCAs are independent and generally work for advocacy providers who are not part of a local authority or the NHS.

4. Responsibility for Providing Advocacy Services

Independent mental capacity advocacy provision is the responsibility of the local authority in which the person is ordinarily resident. The law states, however, that local authorities should have arrangements in place to cover adults who are placed “out of area” (for example, for people placed out of area temporarily or for people who move from one area to another following an assessment and care and support planning). Lancashire County Council’s advocacy provider, Advocacy Focus, can provide an “out of area” service for Lancashire residents, dependent on capacity, and referrers can contact them directly with any queries about this aspect of the service.  

For Independent Mental Health Advocacy, responsibility for providing advocacy rests with:

• The local authority covering the area in which the hospital where the person is detained is located (for detained patients);
• The local authority covering the area in which the person’s responsible hospital is located (for patients subject to a community treatment order (CTO); and
• The local authority, which is acting as the guardian or, if the patient has a private guardian, the local authority for the area in which the private guardian lives (for people subject to guardianship).

Lancashire County Council residents may be receiving treatment at facilities outside of its area e.g., at the Harbour, a mental health facility located in the Blackpool unitary council area. Responsibility for providing advocacy to detained patients at the Harbour rests with Blackpool Council. Our provider, Advocacy Focus operates a drop-in service at all mental health facilities in Lancashire (i.e., covering the areas of Lancashire County Council the two unitary councils) and can answer any queries about the services available at each facility.

5. Independent Mental Capacity Advocate (IMCA)

The right to an IMCA was introduced by the Mental Capacity Act (MCA) 2005.

Lancashire County Council has a duty to make sure that Independent Mental Capacity Advocates are available to represent people who lack mental capacity to make specific decisions. Staff will need to know when an independent mental capacity advocate needs to be involved.

Independent advocacy under the Mental Capacity Act has similarities to the independent advocacy duty introduced by the Care Act 2014, and regulations enable independent advocates to carry out both roles. However, the duty to provide advocacy under the Care Act is broader and applies in a wider set of circumstances (see Independent Care Act Advocacy policy).

Many of the people who qualify for advocacy under the Care Act will also qualify for advocacy under the Mental Capacity Act 2005. The same advocate can provide support as an advocate under the Care Act and under the Mental Capacity Act. This is to enable the person to receive seamless advocacy, and not to have to repeat their story to different advocates. Depending on the legislation the advocate providing support is acting under, they should meet the appropriate requirements for an advocate under that legislation.

Lancashire County Council works with its statutory, voluntary and private sector partners to provide an independent advocacy service.

6. When an IMCA Must or May be Provided

This policy applies to all involved in working with people who lack mental capacity in relation to a particular decision, and who are eligible for the support of an advocate. Eligibility is targeted at those who do not have the support of family and friends to assist them in decision making.

6.1 Independent Mental Capacity Advocate (IMCA)

There is a statutory duty to appoint an IMCA where the decision involves any of the following:

1. Change of accommodation: An IMCA must be instructed where a decision is proposed about a move to or a change in accommodation where the person lacks mental capacity to make the decision, and there are no family or friends who are willing and able to support the person. This includes moving to a care home for 8 weeks or more, or admission to hospital where admission is likely to last 28 days or more, or a move between such accommodations if it is:

• • Provided or arranged by the NHS.
  • Provided under Section 18 of the Care Act which consolidates provision under Section 21 or 39 of the former National Assistance Act 1948.
  • Part of the aftercare services provided under Section 117 of the Mental Health Act 1983 (see Joint Policy for the Management of Section 117 Aftercare, Reviews and Discharge).

This may be a move for the first time from the community or hospital into residential accommodation, or where a change of accommodation is being considered. It may be as a result of changing care needs or a change in the current provision. People living in a service due to close may require an IMCA to be instructed for accommodation decisions. IMCAs should also be instructed where a person may remain living in accommodation which is deregistering as a care home.

If the placement is initially estimated to be for less than the 8-week/28-day threshold period, but later needs to be extended, an IMCA should be appointed as soon as this becomes clear. IMCAs should be instructed in advance of hospital discharge so that they have time to make their recommendation and the discharge is not delayed unnecessarily. Decision-makers should not wait until the person has been assessed as ready for discharge. It is good practice for people who may be eligible for an IMCA to be identified upon admission.

If the placement or move is urgent, an IMCA need not be instructed, but the decision maker must involve an IMCA as soon as possible after making an emergency decision if the person is likely to stay in hospital longer than 28 days, or longer than 8 weeks in other accommodation.

An IMCA may be required to represent a person when they are discharged from hospital. This includes when the accommodation is made under Section 117 of the Mental Health Act (see Joint Policy for the Management of Section 117 Aftercare, Reviews and Discharge), if there is no requirement for the person to live in the proposed accommodation – i.e. the person, if they had capacity, would be able to exercise a choice. An IMCA should be instructed if it is proposed that a person will remain in hospital for more than 28 days as an informal patient under the MHA including after being discharged from a section of the MHA 1983.

6.2 Care reviews

A responsible body can instruct and must consider an IMCA to support and represent a person who lacks mental capacity when:

• they have arranged accommodation for that person.
• they aim to review the arrangements (as part of a care plan or otherwise).
• there are no family or friends whom it would be appropriate to consult.

National guidance states that it is good practice for local authorities to undertake a review within three months of a person moving to new accommodation, or where there have been other major changes to the support plan.

Reviews should relate to decisions about accommodation:

• for someone who lacks capacity to make a decision about accommodation that will be provided for a continuous period of more than 12 weeks and has been arranged by a local authority/NHS.
• that are not the result of an obligation under the Mental Health Act 1983.
• that do not relate to circumstances where sections 37 to 39 of the 1983 Act would apply.

Involvement of an IMCA should be considered at each initial care review following a change of accommodation and subsequently if there is still uncertainty within the placement. An IMCA must be involved if an IMCA was involved in the initial placement.

Where the person is to be detained or required to live in accommodation under the MHA 1983, an IMCA will not be needed since the safeguards available under the MHA will apply. This will include the provision of an IMHA where the criteria are met.

6.3 Safeguarding

Lancashire County Council must arrange, where necessary, for an independent advocate to support and represent an adult who is the subject of a Safeguarding Enquiry or a Safeguarding Adult Review (SAR). Where an Independent Advocate has already been arranged under section 67 of the Care Act or under the MCA 2005 then, unless inappropriate, the same advocate should be used wherever possible.

6.3.1 Safeguarding adults

Local authorities and the NHS have powers to instruct and must consider an IMCA to support and represent a person who lacks mental capacity to consent to the proposed measures where it is alleged that the person is being or has been abused or neglected by another person and / or the person is abusing or has abused another person. There also may be cases where a “self-neglect” referral would be appropriate, for example where there is evidence that suggests a third-party influence on self-neglect.

In adult safeguarding cases, access to IMCAs is not restricted to people who have no one else to support or represent them. People who lack capacity who do have family and friends are still entitled to have an IMCA to support them in safeguarding adult procedures. The decision-maker must be satisfied that having an IMCA will benefit the person. Responsibility for deciding whether an IMCA should be instructed sits with the professional leading the safeguarding investigation. In most cases where an IMCA has been appointed for safeguarding reasons it will be necessary to involve the IMCA in subsequent safeguarding meetings.

If the person at risk lacks mental capacity to consent to one or more of the protective measures being considered (or interim measures put in place) the professional leading the safeguarding investigation should ensure that independent support and representation is available to the person at risk if one of the following applies:

• Where there is a serious exposure to risk of:
  • death
  • serious physical injury or illness
  • serious deterioration in physical or mental health
  • serious emotional distress.
• Where a life-changing decision is involved, and consulting family or friends is compromised by the reasonable belief that they would not have the person’s best interests at heart.
• Where there is a conflict of views between the decision-makers regarding the best interests of the person.
• Where there is a risk of financial abuse which could have a serious impact on the person-at-risk’s welfare, e.g. where the loss of money would mean that they would be unable to live in their current accommodation, or pay for valued opportunities.
• Where the person without mental capacity is alleged to be the perpetrator of abuse.

An IMCA instruction for safeguarding adults is just one way the person at risk may access independent representation. Potentially, the person at risk may already have an advocate or an IMCA instructed for another purpose. To decide whether an IMCA should be specifically instructed for safeguarding adult’s issues, in addition to, or as an alternative to, other forms of independent representation, the following should be considered:

• Whether the person could benefit from advocacy support for issues other than those related to safeguarding adults. The IMCA instruction would be focused on the safeguarding measures being considered and is likely to end when decisions have been made regarding these.
• Whether the IMCA’s right of access to relevant records would make a significant difference for the person.
• Whether the IMCA service or other advocacy service has good availability to support the person during the safeguarding process.
• Whether the decisions regarding safeguarding go beyond or are different to the reason for any existing IMCA instruction.
• If moving the person at risk is being considered as a protective measure, there may be a requirement to instruct an IMCA for an accommodation decision if they have no one appropriate to consult.

Where both the alleged perpetrator and alleged victim of abuse could benefit from independent representation, attention should be given to avoiding or minimising a conflict of interest. The same advocate or IMCA must not be expected to represent both people.

6.4 Deprivation of Liberty Safeguards (DoLS)

DoLS provide legal protection for vulnerable people who may be deprived of their liberty within the meaning of Article 5 of the European Convention on Human Rights (ECHR) in a hospital (other than under the Mental Health Act 1983) care home or supported living environment whether placed there under public or private arrangements. The safeguards aim to ensure that those who lack capacity are not subject to overly restrictive measures in their day-today lives. In certain circumstances, a person who is subject to DoLS must have an IMCA instructed to support them.

The DoLS Code of Practice provides details of when an IMCA should be instructed:

Section 39A: This applies where an urgent authorisation is given or a standard authorisation is requested, and there is not an existing authorisation in force. It also applies where an assessment is being undertaken to decide whether there is an unauthorised deprivation of liberty. The Managing Authority must ascertain whether there is anybody, other than people engaged in providing care or treatment in a professional capacity or for remuneration, who it would be appropriate to consult in determining what would be in the best interests of the person to whom the request for the authorisation relates. If there is not, the Managing Authority must notify the Supervisory Body, and the Supervisory Body must instruct an IMCA to represent the person.

Section 39C. This provides for the appointment of an IMCA if a representative’s appointment ends and the Managing Authority are satisfied that there is nobody, other than people engaged in providing care or treatment in a professional capacity or for remuneration, who it is appropriate to consult in determining what would be in the person’s best interests. Again, the Managing Authority must notify the Supervisory Body that this is the case, and the Supervisory Body must then instruct an IMCA to represent the person. The IMCA’s role in this case comes to an end upon the appointment of a new representative for the person.

Section 39D. This provides for the instruction of an IMCA by the Supervisory Body where the relevant person does not have a paid relevant person’s representative and:

• the person themselves or their representative requests that an IMCA is instructed, by the Supervisory Body, to help them, or
• a Supervisory Body believes that instructing an IMCA will help to ensure that the person’s rights are protected.

If the proposed move is subject to a request for a standard authorisation under the Deprivation of Liberty Safeguards (DoLS) there is no requirement to instruct an IMCA for the accommodation decision. Instructions for IMCAs should also be considered in the following situations:

• The local authority is making or changing support arrangements which may allow a person to remain in their own home, when a move to a care home is a serious consideration.
• Moving a person to a different service on the same site. For example, a different unit within an older people’s care service. This is because such a move could have a similar impact for the person as a move to a different location.

6.5 Un-befriended

The most common reasons people are not eligible for an IMCA is because they are deemed to be “befriended”, i.e. that there was someone who could speak up for them. This is apart from safeguarding cases where this criteria does not apply. Staff need to give due consideration to whether there are family or friends who are willing and able to be consulted about the proposed decision. If it is not possible, practical and appropriate to consult anyone, an IMCA should be instructed. The person who lacks capacity may have friends or family, but there may be reasons why the decision-maker feels it is not practical or appropriate to consult with them. The following are examples where it may be appropriate to instruct an IMCA:

• The family member or friend is not willing to be consulted about the best interests decision.
• The family member or friend is too ill or frail. Ill-health or mental frailty should not preclude consultation unless this means the person is unable to communicate.
• There are reasons which make it impractical to consult with the family or friend, for example they live too far away.
• A family member or friend may refuse to be consulted.
• There is abuse by the family member or friend.

The referrer needs to record explicitly about why family members or friends cannot be consulted. If a person who lacks capacity already has an advocate, such as a Care Act advocate, they may still be entitled to an IMCA whom would consult with their existing advocate or, where qualified, the Care Act Advocate may also act as IMCA.

7. Eligibility

The adult must be assessed as lacking mental capacity according to in the Mental Capacity Act 2005, in relation to the specific decision being considered. The adult must lack support, in that they will have no-one who can help them communicate their wishes or be consulted about their best interests other than those professional health or care staff who may be providing services to them.

7.1 When an IMCA would not be instructed and exceptional circumstances when an IMCA should be appointed

In the following circumstances the adult would not be eligible for the provision of an IMCA:

• Where an adult who now lacks capacity in relation to a particular matter has previously expressed a wish that a named person should be consulted in matters affecting their interests, and that person is available and willing to be consulted.
• Where the adult who lacks capacity has appointed an attorney, either under a Lasting Power of Attorney or an Enduring Power of Attorney, and the attorney continues to manage the adult’s affairs.
• Where the Court of Protection has appointed a Deputy, who continues to act on the adults behalf.

However, these exclusions only apply if the attorney or deputy is “authorised to make decisions in relation to” the potential reason for IMCA instruction (section 40(1)). Where a person has no family or friends to represent them but does have an attorney or deputy who has been appointed solely to deal with their property and affairs, they should not be denied access to an IMCA.

There may also be rare circumstances where family members or friends who would normally be consulted are not appropriate. The reasons for this may be distance, a lack of contact, their own ill-health or mental frailty, an unwillingness to be consulted, or concerns about the safeguarding of the adult’s best interests. An IMCA may be appointed in these circumstances. Ill-health or mental frailty should not preclude consultation unless this means the person is unable to communicate. Referrers must be explicit about why family members or friends cannot be consulted.

If an IMCA has already been appointed and the adult subsequently becomes subject to the Mental Health Act, it may be appropriate for an IMHA to be appointed in addition. Lancashire County Council’s arrangements with its advocacy provider – Advocacy Focus – allows for these dual roles to be undertaken by the same, fully-trained advocate.

Where the adult has previously appointed an independent advocate and has indicated that they wish the independent advocate to be consulted on all affairs and decisions which they lack capacity to make, the adult lacking capacity would not be entitled to an IMCA. If however that advocate is unable or unwilling to proceed in the changed circumstances, an IMCA may be appointed.

8. IMCA Referral

In any situation where an adult is known or believed to lack mental capacity and a decision is required where an IMCA may be involved, the decision-maker should assess the person’s capacity according to the Mental Capacity Act guidance in relation to that decision (see Mental Capacity).

Without instruction from an authorised person (referrer) IMCAs have no authority to carry out the role. An authorised person is a person who is ‘required or enabled to instruct an IMCA’ although an initial referral is acceptable from any source. Local authorities may authorise a wide range of people to instruct IMCAs and may authorise other people than their own employees to instruct IMCAs.

The staff responsible for decision-making may include hospital discharge staff, doctors, nurses, social workers, care managers, managers of care homes and domiciliary care providers.

When the decision-maker has identified the need for an IMCA, they will confirm this with their line manager and then contact the provider by telephone or internet to make the instruction.

8.1 Responsibilities of the person making the referral

A formal mental capacity assessment should be undertaken and recorded before the IMCA is instructed. However, there is not a requirement in the Mental Capacity Act for IMCAs to see a written assessment before they start work. It is not the role of the IMCA to assess mental capacity. A record will be made of the decision to appoint an IMCA and the people involved in that decision.

8.2 How to refer

To access IMCA and IMHA services in the Lancashire County Council area, contact:

Advocacy Focus

1st Floor. The Old Tannery, Eastgate, Accrington, Lancashire, BB5 6PW.

Telephone: 0300 323 0965

Email: [email protected]

9. Health Complaints

The NHS Complaints Advocacy Service provides support to people wishing to make a complaint about the NHS. The service aims to provide support to people who want to make a complaint about the NHS and need some support to do this. Lancashire County Council’s commissioned advocacy provider will also support people to make a health or social care complaint.

10. Independent Mental Health Advocacy (IMHA)

Independent Mental Health Advocate (IMHAs) safeguard the rights of people detained under the Mental Health Act 1983 (MHA) as amended by the 2007 Act. IMHAs aim to enable qualifying patients to participate in decisions about their care and treatment. An IMHA is a statutory advocate, granted specific roles and responsibilities under the Mental Health Act. Their role is to assist qualifying patients to understand the legal provisions to which they are subject under the Act, and the rights and safeguards to which they are entitled. They also assist qualifying patients to exercise their rights by supporting participation in decision making.

People are eligible to use Independent Mental Health Advocacy services in England if they are:

• detained under the Mental Health Act 1983 (excluding people detained under certain short-term sections).
• conditionally discharged restricted patients.
• subject to guardianship.
• subject to Community Treatment Orders (CTOs).

Under the Mental Health Act 1983 certain people, known as ‘qualifying patients’, are entitled to help and support from an IMHA. Section 117 of the MHA places a duty on the NHS and local authorities to provide aftercare and this will usually involve a joint assessment of the person’s care and support needs, a care and support or support plan and subsequent review (which may reach a decision that a person is no longer in need of aftercare). People who do not retain a right to an IMHA should be considered for an advocate under the Care Act, if they have substantial difficulty in being involved and if there is no appropriate person to support their involvement.

There is no duty to involve an IMCA if the person is required to stay in the accommodation under the Mental Health Act 1983, since the safeguards available under the MHA will apply and this may include the provision of an Independent Mental Health Advocate (IMHA) where the criteria are met. This includes detention in hospital under Section 2 of the Act (assessment) or Section 3 (treatment). It also includes Guardianship which specifies where a person should live.

11. Further Reading

11.1 Relevant chapters

Independent Care Act Advocacy

Mental Capacity

Assessment of Needs

Adult Safeguarding

11.2 Relevant information

Mental Capacity Act: Making Decisions, Office of the Public Guardian 

Advocacy Services for Adults with Health and Social Care Needs (NICE)