Disparities found in instruction of independent mental capacity advocates

Wide disparities exist in the rate of instructions to independent mental capacity advocates that cannot be explained by the different populations of local authority areas.

The Independent Mental Capacity Advocacy Service said in its sixth annual report that it was “likely that in some areas the duties under the Mental Capacity Act 2005 are still not well embedded.

“The duty to refer people who are eligible to IMCAs is still not understood in all parts of the health and social care sector."

Advocates are able to safeguard people who do not have the capacity to make certain important decisions about their health or social care.

The Act also introduced a legal duty on NHS bodies and local authorities to refer eligible people to the IMCA service and to consider their views before decisions are made.

The report recommended that local authorities audit recent accommodation moves, to ensure that people’s wishes and feelings have been considered and the issue of ‘less restriction’ has been fully reflected in all decisions.

It also suggested that local authorities carry out a small audit of recent reviews, to establish whether all those who would benefit from IMCAs in their reviews did receive one.

During the service’s sixth year there were 12,381 eligible instructions for the service in England, a 4% increase from the previous year.

Of these, accommodation decisions accounted for 5,353 cases, a 9% increase, serious medical treatment decisions for 1,907 (+9%), care reviews for 1,203 (+16%), adult protection and safeguarding 1,482 (-3%) and deprivation of liberty safeguards 1,907 (-3%).

The report noted the increase in the number of instructions for care reviews but said this continued to be low in absolute numbers, in comparison to accommodation decisions.

It added that this raised the question as to whether care reviews were consistently undertaken after moves.

Mark Smulian

The report's recommendations in full

  1. It is recommended that commissioners recognise that the number of people statutorily eligible for the IMCA service continues to increase on a year-by-year basis, and that they reflect on the issues discussed in Chapter 11 of the report.
  2. It is recommended that local authorities and IMCA organisations both carry out self audits of recent accommodation moves, and ensure that people’s wishes and feelings have been considered and the issue of ‘less restriction’ has been fully reflected in all decisions.
  3. It is recommended that IMCA organisations, local authorities and the NHS continue to be alert to possible Deprivations of Liberty (DoL). IMCA organisations should alert local authorities and the NHS for the need either to prevent a DoL by changing the care plan, or applying the DoL safeguards, in a care home or hospital. If the possible DOL is the result of a care package in the community, a referral to the Court of Protection is required. Introducing the heading ‘liberty’ into all care plans, to assist staff to consider ways of promoting liberty as part of care planning is good practice.
  4. It is recommended that local authorities carry out a small audit of recent reviews, to establish whether all those who would benefit from IMCAs in their Reviews did receive one.
  5. It is recommended that Mental Capacity Act leads in CCGs monitor compliance with the requirement for referrals to IMCAs for each of their providers, as part of their MCA responsibilities.
  6. It is recommended that local authority safeguarding coordinators consider the statistics in this report and report to their Safeguarding Adults Boards on whether sufficient number of IMCA referrals are being made in their areas.
  7. It is recommended that supported decision making is adopted more widely within safeguarding practice, to assist more people to make their own decisions about their safeguarding plans. And before a care plan or a protection plan is made, the question should always be asked about whether any less restrictive safeguarding action which would interfere less with the person’s basic rights and freedoms may be possible.
  8. It is recommended that IMCAs and commissioners audit a sample of IMCA reports, possibly using the tool designed by Empowerment Matters (reproduced on pages 67 and 68 of the report).
  9. It is recommended that IMCAs follow Court of Protection advice in published judgements on identifying a possible DOL and on applying the MCA principles in relation to all care planning.