IMCA and Paid Representative Service
Aim of the IMCA Service
Sections 35-41 of the Mental Capacity Act 2005 (MCA) requires that an independent mental advocate (IMCA) must be instructed by NHS bodies and local authorities to represent and support people who lack capacity to make certain important decisions and, at the time have no-one else (other than paid staff) to support or represent them.
The purpose of the IMCA service is to help particularly vulnerable people who lack capacity to make important decisions about serious medical treatment, changes in accommodation, and where ‘protective measures’ are proposed or undertaken within Safeguarding Vulnerable Adult procedures and who have no family or friends that it would be appropriate to consult about those decisions.
There are a number of different IMCA roles involved in supporting and representing people who may be subject to the Deprivation of Liberty safeguards. These are set out in sections 39A-D of the amended Mental Capacity Act 2005 (MCA) and are detailed at 7.2.2
The Deprivation of Liberty Safeguards (DoLS) were created to make sure that any decision to deprive someone of their liberty is made after careful consideration and consultation with specific authorities and in compliance with their human rights and after applying the least restrictive principle. Depriving someone of their liberty must be:
- In their best interests and to protect them from harm
- A proportionate response to the likelihood of seriousness of harm
- The least restrictive alternative
People have the right to challenge any decision to deprive them of liberty, and they also have the right to a relevant person’s representative (a family member acting as such or Paid Representative) and additionally an IMCA in some circumstances acting for them to protect their interests. People also have the right to have their detention reviewed and monitored on a regular basis. At any stage, the person, their representative or advocate will be able to appeal against their deprivation of liberty to the Court of Protection under section 21A.
The person concerned must:
- be aged 18 years and over
- Lack capacity to consent to the arrangements being made for their care or treatment that amount to a deprivation of liberty; and
- Need to receive care or treatment in circumstances that amount to a deprivation of liberty
The Role of the IMCA
An IMCA is a specialist type of advocate, providing non-instructed advocacy for people lacking capacity to make the relevant decision and most likely with a variety of communication needs. The IMCA must be independent of the person making the decision.
The role of the IMCA is to:
- Support the person who lacks capacity
- Represent the person with capacity in any discussions on the proposed decision
- Obtain and evaluate relevant information
- Ascertain as far as possible the person’s wishes and feelings
- Raise questions or challenge decisions which appear not to be in the best interests of the person
- Ascertain alternative courses of action
IMCAs have the following statutory powers:
- To meet the person in private where practical and appropriate
- To examine and take copies of relevant records (as set out in 35(6) of the MCA)
- To ask for a second opinion about medical decisions
The IMCA will make representations about their client’s wishes, feelings, beliefs and values. The IMCA will bring to the attention of the decision-makers all factors that are relevant to their decision. IMCAs will also be able to challenge the decision-maker if appropriate.
Section 39A IMCAs are instructed when there has been an urgent DoLS authorisation or an application for a standard authorisation has been made, or a concern about a potentially unauthorised deprivation of liberty and the relevant person has no one with whom it would be appropriate to consult.
Section 39C IMCAs cover the role of the relevant person’s representative when there is a gap between appointments
Section 39D IMCAs support the person or their family member acting as a relevant person’s representative, when a standard authorisation is in place and the person or the family representative will benefit from the appointment of the IMCA.
IMCA as litigation friend
In some cases where the local authority is applying to the Court for orders to resolve a dispute about where a person lives, even if the person is not under a DoLS Authorisation, and an IMCA is already involved, the person will need to be represented by a litigation friend if they lack capacity to instruct their own solicitor. Since the Official Solicitor will only agree to be appointed as litigation friend of last resort, the local authority may ask the IMCA to act as litigation friend of the person in the welfare proceedings. This role will result in the IMCA approaching a private solicitor who does legal aid work to give advice and be paid by the Legal Help scheme, and then the solicitor will seek legal aid to represent the person on the instructions of the IMCA.
IMCA instruction for safeguarding adults alongside other IMCA instructions
The consideration as to whether an IMCA should be instructed for safeguarding adults should be informed by whether an IMCA has been, or should be, instructed for any other matter (i.e. a serious medical treatment or accommodation decision, a care review, or for one of the IMCA roles related to the Deprivation of Liberty Safeguards).
Where an IMCA is in place for another matter their focus will be on the specific reason for instruction – which may or may not be related to the safeguarding adult’s issues. For example, an IMCA instructed for a serious medical treatment decision would not be representing the person in relation to potential financial abuse. Conversely, if an IMCA has been instructed for an accommodation decision to potentially move a person from an abusive situation, their representations will be relevant to the safeguarding adults’ process.
The expansion regulations support IMCA instructions for safeguarding adults in addition to other instructions. Where the safeguarding decisions go beyond, or are different to, the reason for the other IMCA instruction, consideration should be given to a further IMCA instruction. This may or may not be undertaken by the same IMCA.
A possible protective measure is moving the person at risk, including temporarily. Where this is being considered (or takes place) there is a need to check whether there is a duty to instruct an IMCA for an accommodation decision (see 7.2.3).
If at any time during the safeguarding adults’ proceedings, the person at risk meets the criteria for an IMCA to represent them for an accommodation decision, this instruction must be made regardless of whether an IMCA was previously instructed. If an IMCA had already been instructed, good practice would be for the same IMCA to undertake both roles.
IMCA services should ensure that where there is more than one current IMCA instruction for any person, these roles should be undertaken by the same IMCA.
IMCAs must be appointed to support and represent a person who lacks mental capacity, possibly because of dementia, a brain injury, a learning disability or mental health diagnosis, who is faced with certain decisions about serious medical treatment and long term care moves and who has no one appropriate to consult about their best interests.
The service will be to support any adults (18+) who require an IMCA and satisfy the following criteria
- the decision is about serious medical treatment provided by the NHS (Section 37)
- it is proposed by an NHS body that the person be moved into long-term care of more than 28 days in a hospital or 8 weeks in a care home (Section 38)
- a long-term move (8 weeks or more) to a different hospital or care home is being considered by the Local Authority (Section 39)
Additionally, an IMCA may be required in the following situations:
- Where a person is subject to DoLS
- Care Reviews – where there is no other appropriate person to consult
- Where ‘protective measures’ are proposed or undertaken within Safeguarding Vulnerable Adult procedures
People who are detained under the MHA are not eligible to receive a service from an IMCA unless the decision involves medical treatment not related to their mental health problems.
The local authority or NHS body will decide in each individual case whether it would be of benefit to the person who lacks capacity to have an IMCA and that the legal criteria for the IMCA’s appointment are met and will refer to the service accordingly.
Many people who qualify for advocacy under the Care Act 2014 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 will enable the person to receive seamless advocacy and not to have to repeat their story to different advocates.
IMCA and Clients subject to safeguarding procedures
If the person at risk lacks the mental capacity to consent to one or more of the ‘protective measures’ being considered (or interim measures being put in place) within Safeguarding Vulnerable Adult procedures, and one of the following special circumstances apply then an IMCA should be instructed,
Where there is a serious exposure to risk, e.g.,
- risk of death
- risk of serious physical injury or illness
- risk of serious deterioration in physical or mental health
- risk of serious emotional distress
- risk of financial abuse that could have a serious impact on the person at risk’s welfare
- A life changing decision is involved and although there are friends and family, there is a reasonable belief that they would not have the person’s best interests at heart
- There is a conflict of views between the decision-makers regarding the best interests of the person
- There is a risk that protective measures or the investigation process could be undermined or obstructed by a conflict of views between the professionals and family representatives
- The additional statutory powers of an IMCA are required for the person’s best interests to be safeguarded, even though there are supportive family members or friends
Where a person at risk is already supported by an advocate it is unlikely that an IMCA will be needed. The following points could help decide whether an IMCA should be instructed where other advocacy support is available.
Whether the person could benefit from advocacy support for issues other than those related to safeguarding adults. The IMCA role would be focused on the protective 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 adults’ process.
In some situations both the alleged perpetrator and alleged victim of abuse could benefit from the support of an IMCA. It should not be the same IMCA who represents both. A conflict of interest could arise where two IMCAs are involved from the same organisation. Where two instructions are being considered, the safeguarding manager should discuss this with the Provider and identify how the conflict of interest could be managed.
The Role of the Paid Representative
The role of a relevant person’s representative is set out in Paragraph 140 of Schedule A1 of the amended MCA, and described in the Deprivation of Liberty Safeguards (DoLS) Code of Practice as ‘to maintain contact with the relevant person’, and ‘to represent and support the relevant person in all matters relating to the DoLS, including, if appropriate, triggering a review, using an organisation’s complaints procedures on the person’s behalf or making an application to the Court of Protection.’
The Paid Representative will support the relevant person to understand the deprivation of liberty safeguards authorisation and their rights in relation to this. They will also monitor any conditions set out in the authorisation by talking to the relevant person and examining records and liaising with professionals responsible for the placement on the person’s behalf and try to resolve issues.
Where conditions are not being met or there has been a change in circumstances, perhaps in relation to the person’s capacity, the Paid Representative will trigger a review.
The representative will furnish regular reports on each person that they act for, and in particular will notify the DoLS service manager and the fieldwork service manager when the representative has concerns that the representative thinks have not been addressed by the relevant Council. This gives the relevant Council the opportunity to try to resolve the issues or for the relevant Council to rely on the Neary judgment to take proceedings to the Court of Protection to resolve welfare disputes with the relevant person or their family members.
Where appropriate, the Paid Representative will raise complaints on behalf of the relevant person or if matters cannot be resolved, can appeal the authorisation by making an application to the Court of Protection on their behalf under section 21A of the Mental Capacity Act 2005.
The representative must be willing to act as a “litigation friend” for the relevant person so as to take the appeal to Court and also to seek legal advice and representation about the matter which would be given by private solicitors under the Legal Help scheme. The Paid Representative will read the judgment in AB v LCC (A Local Authority)  EWHC 3151 which describes the role of the Paid Representative as litigation friend. As the relevant person is entitled to legal aid, the Paid Representative may have to find out financial information about the means of the person to facilitate obtaining legal aid. The representative may have to make witness statements about the issues and to attend Court.
If the DoLS authorisation is terminated, but the proceedings continue on a welfare dispute about where the person should live, then the Paid Representative may have to continue as litigation friend even though they have ceased to act as Paid Representative. However these situations should be rare.
Paid Representative Clients
Anyone who has a DoLS authorisation has a representative appointed for the duration of the authorisation. Often this is a family member or suitable close acquaintance. However, if the person does not have anyone who can fulfil this role they will be appointed a Paid Representative who must be independent of the local authority who appoints them.