See also:
19.1 The Mental Capacity Act 2005 requires an Independent Mental Capacity Advocate (IMCA) to be appointed to represent people assessed as lacking relevant capacity and who have no appropriate representation where certain circumstances exist or when the following decisions must be made:
- Long term accommodation
- Serious medical treatment
- Safeguarding
- Deprivation of Liberty Safeguards (DoLS)
19.2 The requirement to arrange an IMCA applies even when an Independent Care Act Advocate has been arranged.
19.3 Where someone is entitled to, or the Council has decided to arrange, an IMCA as well as an Independent Care Act Advocate, wherever possible the Council will arrange a single advocate who is able to fulfil both roles.
Long term accommodation:
19.4 The council will arrange an IMCA where the person lacks relevant capacity and a decision must be made about accommodation in a care home, community based accommodation or in hospital where the person will stay:
- in hospital for more than 28 days, or
- in the care home or other community based accommodation for more than 8 weeks, and
- the person has no appropriate family member or friend who can be consulted.
19.5 Where a placement constitutes a deprivation of liberty, see also paragraphs 19.12 – 19.18.
19.6 An urgent placement may proceed before an IMCA is arranged but an IMCA must be instructed as soon as possible after the decision.
19.7 The council may arrange an IMCA where the person lacks relevant capacity and:
- the council is reviewing accommodation arrangements previously made by the council as part of a review of the person’s plan, and
- the person has no appropriate family member or friend who can be consulted.
Serious medical treatment
19.8 Relevant health professionals have a duty to arrange an IMCA for anyone who lacks capacity to make decisions about serious medical treatment where there is no appropriate person who can be consulted.
19.9 Where it appears that an IMCA has not been instructed, council staff are expected to remind relevant health professionals that an IMCA is required.
Safeguarding
19.10 The council will arrange an IMCA for someone involved in safeguarding procedures who lacks relevant capacity and is unrepresented.
19.11 The council may arrange an IMCA where a person lacks relevant capacity and is either an alleged victim or an alleged perpetrator even where family, friends or others are involved.
Deprivation of Liberty (DoLS)
19.12 Circumstances which amount to a Deprivation of Liberty were defined by the Supreme Court in the case of “Cheshire West” Cheshire West and Chester Council - and - P (by his litigation friend the Official Solicitor)
19.13 A person is deprived of their liberty if:
- they are under continuous supervision and control, and
- they are not free to leave
19.14 The council is the Supervisory Body for DoLS in Gloucestershire.
19.15 The council will arrange an IMCA where:
- a capacity assessment has confirmed that the person lacks the relevant capacity relating to accommodation for care, and
- there is no one to represent the person during the DoLS assessment process.
19.16 The council will arrange a section 39A IMCA when no standard authorisation is in place where:
- a request is made for standard authorisation, or
- a best interests assessor is appointed to assess whether the person is being unlawfully deprived of their liberty and whether that is in their best interests.
19.17 The council will arrange for a paid Relevant Person’s Representative (RPR) where there is no family or friend to act in that role for the individual.
19.18 When a standard authorisation is in place, the council will arrange:
- a section 39C IMCA to cover gaps between RPRs), for example if an RPR is unable to act as RPR and no other family member or friend can represent the person, or
a section 39D IMCA to support either the Relevant Person or an RPR if requested by the Relevant Person or the RPR, or
- the council has reason to believe that either the Relevant Person or the RPR would benefit from the support of an IMCA.
