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Instruction (Referral)
Guidance
Please
Note:
Instructions (Referrals) can only be accepted from relevant personnel
employed by a Local Authority or NHS Trust.
If you are unsure if an IMCA is
necessary prior to instructing the IMCA Service please speak to the IMCA
service team in your area.
For South West and West Wales Region
(Swansea, Bridgend, Neath & Port Talbot, Carmarthenshire, Pembrokeshire
and Ceredigion) Ring 01656 649557 or 01656 651450 between 9-5 Mon-Fri
Instruction (Referral) forms for the
IMCA service can be downloaded HERE
Completed forms can be returned via fax
to 01656 01656 768775 for the South
West and West Wales Region or by email to imca@imcawales.org or imca@mhmwales.org or by post to:
IMCA Service, Union Offices, Quarella
Road, Bridgend, CF31 1JW
Contents
1. The
purpose and scope of the IMCA service
2. The
role, functions, responsibilities and powers of
the
IMCA
3. Criteria
and procedure for instructing (referring) a person to the
IMCA service
4. Who
should not be referred
5. Comments
and Complaints about the IMCA service
1. The purpose and
scope of the IMCA service
A full and clear definitive description of the
Independent Mental Capacity Advocate (IMCA) Service can be found in the Department
of Constitutional Affairs’ Mental Capacity Act 2005 ‘Code of Practice’ (the
‘Code’) (Chapter 10 primarily, but should be read in conjunction with other
chapters). The Code is available for viewing or downloading from HERE
The IMCA service is a statutory form of advocacy
that provides independent safeguards for people who lack capacity to make
certain decisions and, at the time such decisions need to be made, have no
one else (other than paid staff) to support or represent them or be
consulted.
It is not normally available to people who have
family or close friends who can be consulted about the decision, unless
they are subject to Protection of Vulnerable Adult Procedures.
An IMCA must be instructed, and then
consulted whenever (a person meets the following criteria and):
- an NHS body is proposing to provide serious medical treatment,
or
- an NHS body or local authority is proposing to arrange
accommodation (or a change of accommodation) in hospital or a care
home, and
- the person will stay in hospital longer than 28 days, or
- they
will stay in the care home for more than 8 weeks.
It is expected that the
majority of the referrals to the IMCA service will be in respect of people
in the following groups:
- People with dementia
- People with learning disabilities
- However, it is anticipated that referrals will
also be made for:
- People who have experienced strokes
- People with physical disabilities
- People with acquired brain injuries
- People with mental ill health
2. The role, functions, responsibilities and powers of the IMCA
The IMCA role
The IMCA’s main role is to give an independent report
on the person’s current or past wishes, culture, beliefs and known needs in
order to help the professional i.e. (the ‘decision maker’) making the
decision to ensure that he/she is working in the person’s best interests.
The IMCA does not make the decision about
whether or not the treatment or move goes ahead; this decision remains with
the decision maker. Rather, the
advocate will gather information about the person’s wishes, values and
circumstances as well as identifying possible alternative courses of
action, in order to inform the final decision.
In the event that the IMCA and the decision
maker disagree (for example, as to the person’s capacity to make a
decision, or what is in the person’s best interests) the IMCA may need to
challenge the decision made.
People who need IMCA are likely to be facing a
crisis. IMCAs will therefore work as quickly as possible to establish the
wishes and needs of the person, and the views of those who care for them.
IMCA Functions
and Responsibilities
The
functions and responsibilities of an IMCA advocate are set out in chapter
10 of the Code. They include:
- confirming
the person making the referral has the authority to do so
- acting in
accordance with the principles of the Mental Capacity Act (as set out
in chapter 2 of the Code) and taking account of the guidance in the
Code
- representing
and supporting the person who lacks capacity
- obtaining
the view of relevant professionals and other workers providing care or
support to the person who lacks capacity
- obtaining
and evaluating information
- ascertaining
the person’s wishes and feelings, as far as possible
- ascertaining
alternative courses of action – for example, looking at different care
arrangements or residential homes
- obtaining a further
independent medical opinion, if necessary.
In order to represent the person who lacks
capacity to make the decision, the IMCA will need to investigate the
particular circumstances of the vulnerable person in relation to aspects of
the ‘best interests checklist’ (see chapter 5 of the Code). These include:
- whether
the person is likely to regain capacity in relation to the matter in
question, and if so, when that is likely to be;
- the need
to permit and encourage the person to participate, or to improve
his/her ability to participate, as fully as possible in any act done
for and any decision affecting him/her;
- so far as
these can be ascertained, the past and present wishes and feelings of
the person concerned, any beliefs and values that may have influenced
the decision in question, and the factors which the person would
consider if able to do so;
- Any other
relevant factors, including for example, the need to promote the human
rights of the person concerned.
- In
addition, the advocate will need to consider whether the principles
set out in Section 1 of the Act have been complied with. In
particular:
- Where
there is more than one course of action or a choice of decisions to be
made, the IMCA will need to check whether all possible options or
alternatives have been explored and whether the proposed option would
be the least restrictive of the person’s future choices or would allow
him/her the most freedom.
- They
should also check that the person has been given adequate support to
try to make his or her own decision and that he or she does in fact
lack capacity in relation to the decision in question.
IMCA
Powers
In order to carry out their functions
effectively, IMCAs are given certain powers by the Act.
IMCA advocates
are entitled:
To see the person they are representing in private.
This means that they should be able to talk with the person in a private
room, where their conversation cannot be overheard or monitored. A bed on a
multi-bed ward would not normally be acceptable. The only exceptions to this would be:
- Where the
individual refuses the option of going to a private room to talk
- Where it
is medically unsafe or physically impossible for the patient to leave
their bed
To
have access to the person’s medical and health records, and to take copies
from these. IMCA advocates are
entitled to inspect and, if they wish, to take copies from the records of
individuals they are representing, so long as the record holder deems the
records to be relevant.
When an advocate needs to access individual
records, they will usually make this request to the decision-maker. The
date of requests for information will be recorded.
To request further medical opinions. IMCA
advocates are entitled to request further medical opinions if they believe
this will help them to gain a clearer understanding of a patient’s needs,
or of the treatments or outcomes which may be available.
Advocates requesting a further medical opinion
will make their request to the consultant responsible for the patient’s
care. The initial request may be verbal, but will always be confirmed in
writing.
3. Criteria and procedure for instructing (referring) a
person to the IMCA service
(a)
The instruction (referral) criteria
The
instruction (referral) criteria for the IMCA service are very clearly
defined in Chapter 10 of the Code, and referrals outside of the criteria
cannot be accepted. The following questions may help those considering
making a referral to ensure that the referral is appropriate:
What
decisions must be instructed (referred)?
The
instruction (referral) criteria for the IMCA service are set out in summary
in section 1 (pages 3-4) of this guide (and definitively in chapter 10 of
the Code).
It
is important to note that each new decision about a person who lacks
capacity requires a new instruction (referral) to be made. An IMCA will report on a specific
decision, about a specific person, at a particular time.
The IMCA service will not be
involved in emergency cases where serious medical treatment or change of accommodation
needs to be dealt with urgently in order to save the person’s life or
prevent a serious deterioration in his/her condition. However an
instruction (referral) may need to be made following the emergency (see
10.46 of the Code.)
Am I the right
person to make the instruction (referral)?
Instructions (Referrals) can only be accepted
from the ‘decision maker’ or someone authorised by the decision maker to
make the instruction (referral) on his/her behalf. The decision maker will be the key professional,
based in the most relevant statutory agency, who has the responsibility to
make the decision as to what will happen.
For example, the decision maker for a decision
about a person’s medical treatment will normally be the senior medical
member of staff responsible for the patient’s treatment. In the case of a
change of accommodation decision, it will usually be the responsible social
worker, or senior medical member of staff. For guidance on who can be a
decision maker see 5.8 to 5.12 of the Code.
Does the person
being referred lack capacity to make the decision in question?
Before an instruction (referral) is made to
IMCA, the decision maker or another competent person must determine whether
or not the person being referred has capacity to make the decision in
question. Only if they lack capacity
should the IMCA service be contacted.
Chapters 3 and 4 of the Code gives detailed guidance on what support
should be provided to help someone make a decision for him/her and on
assessing capacity.
(If, in working with an individual who has been
assessed as lacking capacity, the advocate believes that the person, in
fact, has capacity to make the decision in question, the advocate, may
request a re-assessment.)
What is
‘serious medical treatment’?
The Code (10.43) gives the following definition
of ‘serious medical treatment’:
Serious medical treatment is defined as
treatment that involves giving new treatment, stopping treatment that has
already started, or withholding treatment that could be offered in
circumstances where:
- if a
single treatment is being proposed there is a fine balance between the
likely benefits and the likely burdens to the patient including the
risks involved
- a decision
between a choice of treatments is finely balanced, or
- what is
proposed is likely to have serious consequences for the patient.
- What does
moving into, or between, care settings mean?
The IMCA service should be contacted when an NHS
body or local authority is proposing to arrange accommodation (or a change of
accommodation) in hospital or a care home, and
the person will stay in hospital longer than 28 days, or he/she will
stay in the care home for more than 8 weeks.
‘Care home’ may include warden-assisted
accommodation, supported living, and other arrangements made by the local
authority.
What does
‘lacking family or friends’ mean?
People can only get support from an IMCA if they
lack family or friends with whom the decision maker can realistically
consult. This may mean that the person has no living family, but it could
also mean that they have little or no contact with their family, or that
any known family or friends are too far away to play a meaningful part in
consultation.
The exception to this is in Adult Protection
Cases where an IMCA can be instructed even where a person has family or
friends available for consultation.
IMCAs should not be involved simply because family or
friends disagree with the decision maker.
Self-funding
According to the Code (10.56), people who
self-fund in long-term accommodation have the same rights to an IMCA as
others, if the local authority carries out an assessment under section 47
of the NHS and Community Care Act 1990, and decides it has a duty to the
person (under either Section 21 or Section 29 of the National Assistance
Act 1947, or Section 117 of the Mental Health Act 1983).
(b) The
Instruction (Referral) Process
Making an
Instruction (Referral)
Instructions (Referrals)
should come from the decision maker although, in practice, they may delegate
the task.
Instructions (Referrals) can
be discussed in the first instance by contacting Michaela Moore by
telephone on 01656 649557 or 01656 651450. This must be followed
up by completing the IMCA instruction (referral) form which can be downloaded
from here. Instruction
(Referral) forms should be returned to the as identified at the top of this
page or via email to either imca@imcawales.org
or imca@mhmwales.org
(all attachments read only) or faxed to 01656 768775.
If the person instructing an
IMCA has concerns about the client posing a risk to the IMCA in a face to face
meeting, the instructor should contact the IMCA service manager to outline
the risks as well as indicating these on the instruction (referral) form.
What will
happen after instruction (referral) has been made?
We aim to respond to all appropriate instructions
(referrals) as soon as possible. We
would expect to begin working with an instruction (referral), usually by
contacting the decision maker or by visiting the person concerned, within 2
working days.
The work of the IMCA may include meeting the
person who lacks capacity, talking to the decision maker and other relevant
paid staff and others, and examining written information (see section 2
(pages 5-7) for a summary of IMCA role, functions, responsibilities and
powers).
Once the IMCA has finished their enquiry they
will submit a report of their findings to the decision maker. Since the decision maker’s decision of
what is in the best interests of the person who lacks capacity must be
delayed until the IMCA’s report is available, the IMCA will work with all
due urgency to deliver their report.
Once the decision maker has received the IMCA
report and made their decision, they are required to inform the IMCA of the
final decision and the reason for it (see 10.14 of the Code).
In the event of it becoming clear that the IMCA
and the decision maker (or other key staff) disagree, the IMCA will attempt
through discussion and negotiation to resolve the disagreement. In the event that this is not possible,
the IMCA may decide to challenge the decision through formal appeals and/or
complaints procedures.
Confidentiality
IMCA
advocates are entitled to inspect and, if they wish, to take copies from
the records of individuals they are representing, so long as the record
holder deems the records to be relevant.
When an advocate needs to access individual
records, they will usually make this request to the decision-maker.
IMCAs will keep any copies of records they
receive in locked cabinets. The
records will be destroyed three months after the decision on treatment or
care is taken. If the decision is
the subject of appeal or complaint, the records will be destroyed once the
appeals process is complete.
4.
Who should not be referred to the IMCA service?
Access to the IMCA service is strictly limited
to people who fall within the categories of circumstances and types of
decisions summarised in section 1 (pages 3-4) of this guide (and in
definitive detail in Chapter 10 of the Code).
In considering making a referral, it should be
noted that sections 2 and 3 of the Mental Capacity Act 2005 make it clear
that:
the starting assumption must always be that a
person has the capacity to make a decision, unless it can be established
that they lack capacity,
a person’s capacity must be assessed
specifically in terms of their capacity to make a particular decision at
the time it needs to be made, and
a person’s capacity must not be judged simply on the basis of their
age, appearance, condition or an aspect of their behaviour.
The
IMCA service will not be involved in cases of emergency treatment where the
proposed treatment needs to be dealt with urgently in order to save the
person’s life or prevent a serious deterioration in his/her condition.
5. Comments and
complaints about the IMCA service
IMCA Wales welcomes comments about the IMCA
service it is commissioned to provide.
Questions, compliments or complaints should in
the first instance be addressed to:
Michaela
Moore
Regional
Advocacy Manager (South West and West Wales Region)
IMCA Wales
Union Offices
Quarella Road
Bridgend
CF31 1JW
Tel: 01656 649557 or 01656 651450
Email: imca@imcawales.org or imca@mhmwales.org
If
this does not resolve the issue, or if you wish to make a formal complaint,
please contact:
Richard Jones
CEO
MHM Wales
Union Offices
Quarella Road
Bridgend
CF31 1JW
Tel: 01656 651450
Email: richard.jones@mhmwales.org
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