National Mental Capacity Action Day
15th March 2016
National Mental Capacity Action Day is to increase awareness of the Mental Capacity Act and to highlight good MCA practice.
The purpose of the Action Day is to:
- Profile current best practice from around England and Wales
- Identify MCA improvement priorities for the coming year
- Gather commitments from attendees for projects and work to improve MCA implementation at the frontline
MHM Wales currently provides the IMCA (Independent Mental Capacity Advocates) and Paid Representative Services across Bridgend, Swansea, Neath Port Talbot, Carmarthen, Pembrokeshire, Ceredigion.
Advocates support clients within the Mental Capacity Act. These are some of the most disempowered people, often frightened, angry and confused.
IMCAs have specific experience, including IMCA and IMCA DoLS training in addition to the core advocacy units, which becomes the NVQ Level 4 Diploma in Advocacy. They must have integrity and a good character and to be able to act independently. Additionally, IMCAs have an enhanced DBS (Disclosure and Barring Service) check and undertake POVA (Protection of Vulnerable Adults) training.
The aim of the IMCA service is to provide independent safeguards for people who lack capacity to make certain important 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.
IMCAs must be independent.
An IMCA must be instructed, and then consulted, for people lacking capacity who have no-one else to support them (other than paid staff), whenever: 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 eight weeks.
An IMCA may be instructed to support someone who lacks capacity to make decisions concerning: care reviews, where no-one else is available to be consulted adult protection cases, whether or not family, friends or others are involved.
Any information or reports provided by an IMCA must be taken into account as part of the process of working out whether a proposed decision is in the person’s best interests.
The advocate will endeavour to build a working relationship with the client and construct a picture of their feelings and wishes. Through structured meetings the advocate supports the person to make those views known and ensure they are taken into consideration. IMCAs ensure decisions taken follow due process and raise pertinent questions in relation to the rationale. The service looks to close cases when decisions are taken and implementation plans are in place. However, the IMCA can raise questions or challenge decisions which appear not to be in the best interests of the person. If there is no other way of resolving the disagreement, the decision may be challenged in the Court of Protection.
An additional area of support provided by the IMCA service, is supporting people lacking capacity, who have no-one else to support them (other than paid staff), being deprived of their liberty, or during the process of assessment in establishing if there is a deprivation taking place.
If a person is considered deprived of their liberty, the hospital or care home has to be granted a Standard Authorisation within the Deprivation of Liberty Safeguards. The person is referred to as the Relevant Person; and as they lack the capacity to understand their deprivation, a Relevant Person’s Representative has to be appointed to support them. When the person has no one to take on that role, a Paid Representative will be appointed. Currently MHM Wales provides this service in Bridgend, Swansea, Neath Port Talbot, Carmarthen, Pembrokeshire, Ceredigion and Rhondda Cynonn Taff.
The Paid Representative’s role is to:
- Visit the person deprived of their liberty on a regular basis
- As far as possible, assist the person to understand their Deprivation of Liberty Safeguards authorisation and how it affects them.
- As far as possible, assist the person to exercise their rights should they wish to do so.
- Ensure any conditions attached to the authorisation are met and if not facilitate the address of this or refer it back to the Deprivation of Liberty Safeguards
- Call for a review of the authorisation where necessary, challenge the authorisation through local means where possible or ultimately refer the case to the Court of Protection.
- Where conditions linked to the Deprivation of Liberty Safeguard are not being met or there has been a change in circumstances, the Paid Representative will trigger a review.
Technically, the Paid Representative role is not as an advocate. Advocates do not make decisions, whereas the Paid Representative is expected to make decisions. However, Government feels the best people to undertake this role is IMCAs because of their independence and understanding of the Mental Capacity Act.
The IMCA and Paid Representative services are only available in very specific circumstances and whilst the Mental Capacity Act is a hugely empowering piece of legislation, it is complex and to date implementation of the act has been sluggish and people are far more likely to benefit from their rights under this act when an independent advocate is involved.