Mental Capacity Act 2005
Mental Capacity Act IMCA Service
The Mental Capacity Act (MCA) is a piece of legislation which sets out a legal framework for supporting and protecting vulnerable people who are unable to make their own decisions.
It makes clear who can take decisions, in which situations, and how they should go about this. It also enables people to plan ahead for a time when they may lose capacity. It covers all decisions such as financial, social care, medical treatment and research arrangements as well as everyday decisions.
The Act is underpinned by 5 Key Principles and all decisions made on behalf of a person who lacks capacity should be in accordance with these principles
Five Key Principles:
- It should be assumed that a person has capacity to make decisions.
- People have the right to be supported to make their own decisions.
- People should not be treated as lacking capacity merely because they have made an unwise decision.
- Everything done for people without capacity should be done in their best interests.
- All decisions must be made in a way that is least restrictive of an individual's freedom.
IMCA Criteria
The MCA makes provisions for an Independent Mental Capacity Advocate (IMCA) Service. This service provides an independent safeguard to support vulnerable people who lack capacity to make important decisions and have no-one with whom it is appropriate to consult regarding those decisions. The Act places an obligation on Local Authorities and/or NHS bodies to instruct and consult an IMCA when making a decision for a person who lacks capacity regarding the following decisions:
- Serious Medical Treatment (Section 37)
- When the Local Authority is proposing to arrange accommodation for someone for longer than 8 weeks (Section 38)
- When the NHS body is proposing to arrange accommodation for someone for longer than 28 days (Section 39).
The Act gives powers to Local Authorities to extend the functions of an IMCA service and may instruct an IMCA in cases of:
- Care Reviews (where accommodation is being reviewed).
- Safeguarding of Adults cases (the criteria of friends and family does not apply in Safeguarding cases).
What the IMCA will do
- Where possible find out the person's wishes, feelings, values and beliefs.
- Represent the person's best interests.
- Support the person through the decision making process as an independent person.
- Safeguard the rights and entitlements of the person set out in the MCA, ensuring that the basic principles and the Best Interest check list are being followed.
- Where necessary access copies of the person's Health and Social Care records [Section 35(6)].
- Where appropriate challenge the decision on behalf of a person
- Where necessary seek a second medical opinion.
- Submit a formal representation in a report about the proposed decision which the decision maker must consider.
What the IMCA won't do
- IMCAs do not assess a person's capacity; this is the responsibility of the decision maker.
- IMCAs do not make the decision on behalf of the person who lacks capacity.
- IMCAs do not make a decision on behalf of the decision maker.
- IMCAs do not replace the role of the decision maker or any other statutory professional.
- IMCAs do not provide continuing advocacy support when the decision making process is completed.
- IMCAs should not be instructed when decisions are urgent; the service is not an emergency service.
Referral Information
IMCA Service (Devon & Torbay)
Age UK Devon
Unit 1 Manaton Court
Matford Business Park
Exeter EX2 8PF
Telelephone
0845 231 1900
Facsimile
01392 829594
Email
imca.devon@nhs.net
Information and downloads are available on both websites including
IMCA Referral Form and Guidance Notes.
