PLYMOUTH INDEPENDENT MENTAL CAPACITY ADVOCACY SERVICE

PLYMOUTH HIGHBURY TRUST

207 OUTLAND ROAD

PLYMOUTH, PL2 3PF

TEL: 01752 753718

FAX: 01752 796299

EMAIL: imca@plymouthhighburytrust.org.uk

MARTIN NEWMAN – General Manager P.H.T.

PHIL FITZSIMMONS – IMCA Manager

What is an IMCA

• The Mental Capacity Act 2005 has made provision for people who:

• ‘lack Capacity to make certain decisions at the time that decision needs to be made’ to have a statutory right to an Independent Mental Capacity Advocate if they are unbefriended.

• This is to safeguard the person and ensure that decisions are made in the persons best interest.

AIM OF THE SERVICE

• The aim of the IMCA Service is to provide safeguards for people who lack Capacity to make certain decisions, at the time such decisions need to be made, and have no-one else (other than paid staff) to support or represent them.

• The IMCA must be independent.

WHEN TO REFER

An IMCA MAY be instructed for:• Care Reviews

AND• P has been deemed by D to lack capacity

AND P is unbefriended or the carers are deemed inappropriate to consult.

• D Must be satisfied that having an IMCA will be of particular benefit to P

WHEN TO REFER

• An IMCA MAY be instructed in cases of:• Adult Protection• Even where family members or others ARE available to

be consulted when:

• P lacks capacity.• P is the abused OR the alleged abuser.• The Responsible Body proposes to take OR has already

taken protective measures.• D must be satisfied that having an IMCA will be of

particular benefit to P.

WHEN TO REFER

An IMCA MUST be instructed for:• Moving into Long Term Accommodation

for periods longer than 8 weeks or a change of long term accommodation.

AND• P has been deemed by D to lack capacity

AND P is unbefriended or the carers are deemed inappropriate to consult.

WHEN TO REFER

An IMCA MUST be instructed if:• An NHS organisation proposes to place a

person in Hospital, or move then to another Hospital, for longer than 28 days.

AND• P has been deemed by D to lack capacity

AND P is unbefriended or the carers are deemed inappropriate to consult.

WHEN TO REFER

An IMCA MUST be instructed for:

• Decisions regarding Serious Medical Treatment.

AND

• P has been deemed by D to lack capacity AND P is unbefriended or the carers are deemed inappropriate to consult.

SERIOUS MEDICAL TREATMENT

As defined for the purposes of S37 of the Act• Serious Medical Treatment is treatment which involves

providing, withdrawing or withholding treatment where:

1. In a case where a single treatment is being proposed, there is a fine balance between its benefits to P and the burdens and risks it is likely to entail for him.

2. In a case where there is a choice of treatments, a decision as to which one to use is finely balanced, or

3. What is proposed would be likely to involve serious consequences for P.

SERIOUS MEDICAL TREATMENT

• Serious Consequences include:

• The causing of serious and prolonged pain, distress or side effects.

• Undergoing major surgery

• Stopping life sustaining treatment

• Major impact on future life choices

SERIOUS MEDICAL TREATMENT

Some examples of Serious Medical Treatment:• Chemotherapy/surgery for Cancer• Electro-convulsive Therapy• Therapeutic Sterilisation• Major Surgical Procedures (Open heart surgery/brain surgery)• Major Amputations• Treatments resulting in permanent loss of hearing or sight• Withholding/stopping Artificial Nutrition/Hydration• Termination of Pregnancy

This list is not exhaustive and each case will be considered on is own merits by D

POWERS OF THE IMCA

• The IMCA has a statutory right to:

1. Have private discussions with P.

2. Access the Medical/Social Care records in relation to the decision.

3. Obtain a second medical opinion.

4. Challenge the decision made regarding P’s Capacity.

5. To involve specialist help (e.g. speech & language).

ROLE OF THE IMCA

The IMCA will:1. Confirm the person instructing them is authorised to do

so.2. Investigate the matter as fully as possible.3. Ascertain if P could regain Capacity and when.4. Ensure that appropriate support is given to P to enable

him to make his own decision or to improve his ability to be involved in the decision.

5. Record the views, wishes and beliefs of P and of other people involved with P which may affect the outcome.

6. Investigate alternative options.7. Provide a report to D with regard to P’s best interest.

DECISION MAKERS DUTIES

The Decision Maker MUST:

• Instruct an IMCA to support and represent P in the situations previously stated

• Consider the involvement of an IMCA in Care Reviews and Adult Protection.

• Record that an IMCA has been instructed, keep information provided by the IMCA and inform relevant people that the IMCA is involved.

• Give access to relevant social/medical care records as requested.

DECISION MAKERS DUTIES

The Decision Maker MUST :

• Ensure the IMCA is kept informed regarding changes that may affect their role/support.

• Record how they have properly taken into account the information provided by the IMCA in making the decision in P’s best interest.

• Ensure the IMCA is informed of the final decision.

Contacting the Independent Mental Capacity Advocate

ST

AR

T H

ER

E

You have assessed a service user as

not having capacity to make a particular

decision

Is the person without capacity the subject or alleged

perpetrator in an adult protection

issue?

Consider Engaging

IMCAYES

Does the Service User have

appropriate support apart from

paid carers

Is the decision about Serious

Medical Treatment,

hospital stay of more than 28

days or a change of

Accommodation

Is the decision about a review of accommodation

Do not engage IMCA

You MUST

engage IMCA

Consider engaging IMCA

Do not engage IMCA

Contact IMCA

Service on 01752

753718Or

773333

YES

YES

YES

NO

There are exceptions for self-funders and some people placed under the Mental Health Act. Consult the Code of Practice or contact IMCA provider

PLYMOUTH HIGHBURY TRUST207 OUTLAND ROAD

PLYMOUTHPL2 3PF

imca@plymouthhighburytrust.org.uk

NO

NO

NO

DEPRIVATION OF LIBERTY

SAFEGUARDS

BACKGROUND

• Introduced into Mental Capacity Act 2005 (MCA) through the Mental Health Act 2007

• Will prevent arbitrary decisions that deprive vulnerable people of their liberty

• Safeguards are to protect service users and if they do need to be deprived of their liberty give them representatives, rights of appeal and for the “deprivation” to be reviewed and monitored.

• Safeguards cover people in hospital and care homes registered under the Care Standards Act 2000

• Became a statutory obligation in 2009

What is deprivation of liberty?

• Arises from the “Bournewood” case – a ECtHR case – Article 5.

• HL had been deprived of his liberty unlawfully, because of a lack of a legal procedure which offered sufficient safeguards against arbitrary detention (5(1)) and speedy access to court (5 (4))

• “The distinction between deprivation of and restriction upon liberty is merely one of degree or intensity and not one of nature or substance”

• Therefore no definition• Subsequent case law e.g. DE and JE v Surrey County

Council• A serious matter to be used sparingly and avoided wherever

possible

When to Instruct an IMCA

• Section 39A—Assessment• The Supervisory body MUST instruct an IMCA

when the person being assessed under the Deprivation of Liberty Safeguards has no family member or unpaid Carer to represent them.

• The Managing Authority MUST notify the Supervisory Body on the Request for Urgent Authorisation or Request for a Standard Authorisation Form if the person has no one to represent them.

When to Instruct an IMCA

• Section 39C—Gaps between Representatives.

• If a persons representative is unable to carry out their role an IMCA MUST be instructed by the Supervisory Body who will act for the person until another permanent representative is appointed.

• The Managing Authority MUST notify the Supervisory Body when the person’s representative is no longer able or willing to carry out their role.

When to Instruct an IMCA

• Section 39D—IMCA requested by the Person or their Representative.

• An IMCA MUST be instructed by the Supervisory Body if one is requested by either the person or their Representative. They can request an IMCA at any point during the time the Deprivation of Liberty Authorisation is current.

• The Managing Authority MUST notify the Supervisory Body if the person or their Representative requests an IMCA

Role of the IMCA

• Section 39A & 39C• The role of the IMCA is to provide an independent voice

for a person who is being assessed under the Deprivation of Liberty Safeguards

or • is being Deprived of their Liberty under the Safeguards

• And have no family members, unpaid carers or a Representative to support them and ensure their best interests are being upheld.

Role of the IMCA

• Section 39D

• The role of the IMCA is to support the person or their representative on specific issues regarding the Deprivation of Liberty e.g. calling a review or considering a challenge in the Court of Protection.