Your rights to advocacy under the Mental Capacity Act

When someone is considered not capable of making their own decisions, it is still important that their views and wishes are heard by those involved in their care and treatment. That is why local authorities are required to provide people who have been assessed as lacking capacity with access to an Independent Mental Capacity Advocate (an IMCA) when decisions are being made about them.

 

For help understanding the Mental Capacity Act click here.

 

 

 Easy Read guide to the Mental Capacity Act

 

 

Dudley Advocacy has been providing Independent Mental Capacity Advocacy since April 2007. Our advocates are fully-trained to work with patients detained under the Mental Capacity Act, and their experience and knowledge can help ensure that patients are involved in the decisions that are made about them.

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IMCA resource - what do IMCAs do?

IMCAs are a safeguard for people who lack capacity to make some important decisions. See Who should get an IMCA? to find out which decisions require IMCAs to make some important decisions. See Who should get an IMCA? to find out which decisions require an IMCA.

The IMCA role is to support and represent the person in the decision-making process. Essentially they make sure that the Mental Capacity Act 2005 is being followed.

The Mental Capacity Act 2005 (Independent Mental Capacity Advocates) (General) Regulations 2006 set out the IMCA’s role and functions. These are grouped below into four areas.

1. Gathering information

• Meet and interview the person (in private if possible).

• Examine relevant health and social care records.

• Get the views of professionals and paid workers.

• Get the views of anybody else who can give information about the wishes and feelings, beliefs or values of the person.

• Find out other information which may be relevant to the decision.

2. Evaluating information

• Check that the person has been supported to be involved in the decision.

• Try to work out what the person’s wishes and feelings would be if they had capacity to make the decision and what values and beliefs would influence this.

• Make sure that different options have been considered.

• Decide whether to ask for a second medical opinion where it is a serious medical treatment decision.

3. Making representations

IMCAs should raise any issues and concerns with the decision maker. This could be done verbally or in writing. IMCAs are required to produce a report for the person who instructed them. In most cases this should be provided to the decision maker before the decision is made.

People who instruct IMCAs must pay attention to any issues raised by the IMCA in making their decision.

4. Challenging decisions

In many cases IMCAs will be able to resolve any concerns they have with the decision maker before the decision is made. Where this has not been possible IMCAs may formally challenge the decision-making process. They can use local complaint procedures or try to get the matter looked at by the Court of Protection.

 

Changes to The Mental Capacity Act (2005)

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The Mental Capacity (Amendment) Bill is currently being discussed in Parliament.

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The gov.uk website explains the Bill and why they believe changes should be made.

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Their website states that:

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“The Mental Capacity (Amendment) Bill was introduced to the House of Lords on Tuesday 3 July and seeks to replace the current system known as ‘Deprivation of Liberty Safeguards’ (DoLs).

DoLs is an assessment currently carried out on people who do not have the mental capacity to make their own decisions about their care, for example because they are living with dementia. It was criticised by a 2017 Law Commission review for being too complex and bureaucratic.

The government has now developed a new system, known as ‘Liberty Protection Safeguards’, which will become law through the bill.

The reforms seek to:

• introduce a simpler process that involves families more and gives swifter access to assessments

• be less burdensome on people, carers, families and local authorities

• allow the NHS, rather than local authorities, to make decisions about their patients, allowing a more efficient and clearly accountable process

• consider restrictions of people’s liberties as part of their overall care package

• get rid of repeat assessments and authorisations when someone moves between a care home, hospital and ambulance as part of their treatment

The reforms will also save local authorities an estimated £200 million or more a year.

 

DoLs and the new system are both intended as a safeguard to ensure people are only deprived of their liberty when it is in their best interest, for example, to keep them safe.

An example of a deprivation of liberty would be the use of locks or key pads which stop a person from going out or into different areas of the building.”

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Source: https://www.gov.uk/government/news/new-law-introduced-to-protect-vulnerable-people-in-care

 

An easy read version of The Mental Capacity (Amendment) Bill is available here:

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https://www.changepeople.org/blog/august-2018/changes-to-the-mental-capacity-act