1. Introduction

The purpose of this agreement is ensure that the Trafford Independent Mental Capacity Advocate (IMCA) Service is made available to those people who are eligible to receive it and that the IMCA Service provided is effective.

This engagement protocol is for instructing the Trafford Advocacy Service for IMCA services, including Deprivation of Liberty Safeguards (DoLS) IMCA.

The Trafford IMCA Service should be instructed if the person who needs the IMCA is in Trafford at the time that they require the service.

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.

Further guidance on the use and role of IMCA under the MCA and DoLS can be found via:

1.1 Which local authority is responsible for commissioning?

The MCA Code of Practice says the IMCA Service to be instructed is the one which ‘works wherever the person is at the time that the person needs support and representation’ (10.12).

There is a strong consensus for which local authority is responsible for commissioning the IMCA Service for the different IMCA roles. This is set out below.

  • Accommodation decisions and 39A IMCA role: where the person is staying before a possible move, for example in hospital awaiting discharge.
  • SMT decisions: where the person is staying rather than where the medical practioners who need to make the decision are based (e.g. if the person has an outpatient appointment with a consultant who has made the instruction in a different local authority it would be the IMCA service where they live).
  • Safeguarding adult cases: where the person is staying. In the majority of cases this will be the local authority which is responsible for coordinating the safeguarding adults process. In exceptional circumstances the person may be staying in a different local authority to where the abuse is alleged to have occurred.
  • Care reviews; 39C IMCA roles: where the person is staying.
  • 39D IMCA role: where the person is staying. This includes if the IMCA is instructed to support a relevant person’s representative who lives in a different area. This is because the IMCA is still required to meet the person where practical and appropriate. The IMCA’s support to the person’s representative may be provided over the phone or in person when they have the required contact with the person they are representing.

Where the person is staying may change to a different local authority after the instruction of an IMCA and before decisions are made. For example:

  • a person who has an IMCA instructed for an SMT decision may be admitted into hospital before final decisions have been made about their treatment;
  • a person who has an IMCA instructed for safeguarding adult decision may be moved temporarily during the investigation process;
  • a person who has an IMCA instructed for an accommodation decision may need to move into temporary accommodation.

In many such cases it would be desirable for the same IMCA Service to continue to work with the person. In others, particularly where the person has moved a significant distance away, where they are unlikely to return to the original local authority, or where the IMCA has limited contact with the person before the move, it may be appropriate for another IMCA Service to be instructed.

1.2 When an IMCA should be instructed

The local council, or the NHS decision maker must refer to the IMCA Service if a person has no ‘appropriate’ family and friends who can be consulted and the person has been assessed as lacking the capacity to make a decision about:

  • any serious medical treatments;
  • a move to a hospital that would be for more than 28 days;
  • a move to a care home that would be for more than 8 weeks;
  • the adult’s safety or care which is likely to result in them being deprived of their liberty;

In addition, the local council, or the NHS decision maker may refer the adult if they lack capacity to make a decision about either:

  • a care review (if they have no ‘appropriate’ family and friends)
  • a safeguarding referral (whether the adult is the victim or alleged perpetrator, regardless of whether they have family or friends).

Chapter 10 of the MCA code of practice (see the link above) provides further information on when an IMCA should be instructed; in Section 10.74 further guidance can be found on when a person without capacity has no ‘appropriate’ family and friends who can be consulted.

1.3 The role of the IMCA

The IMCA’s role is to:

  • support and represent the person who lacks capacity;
  • obtain and evaluate relevant information;
  • ascertain as far as possible the person’s wishes and feelings;
  • ascertain alternative courses of action.

IMCAs have the following statutory powers:

  • to meet the person in private where practical and appropriate;
  • to examine and take copies of relevant records (as set out in 35(6) of the MCA);
  • to ask for second medical opinion.

IMCAs have the right to challenge any aspect of the decision making process, if for example they have concerns about whether decisions comply with the MCA.

To ensure timely representation, where possible the IMCA and the instructor, decision maker or assessor will agree initial time frames. This may include when an IMCA report needs to be submitted. Maintaining communication and negotiating changes to timescales is a joint responsibility.

1.4 IMCA roles in DOLS

Further information on the various IMCA roles in the MCA DoLS can be found in IMCA and Paid Relevant Person’s Representative Roles in the Mental Capacity Act Deprivation of Liberty Safeguards (SCIE Guide 41).

There are a number of different IMCA roles involved in supporting and representing people who may be subject to DoLS.

  • Section 39A IMCAs are instructed when there is an assessment in response to a request for a standard authorisation, or a concern about a potentially unauthorised deprivation of liberty.
  • Section 39C IMCAs cover the role of the relevant person’s representative when there is a gap between appointments.
  • Section 39D IMCAs support the person, or their relevant person’s representative, when a standard authorisation is in place.

 1.5 Core principles of the IMCA Service

The IMCA Service must work according to the five principles of the MCA.

  1. A person must be assumed to have capacity unless it is established that they lack capacity.
  2. A person is not to be treated as unable to make a decision unless all practicable steps to help him/her to do so have been taken without success.
  3. A person is not to be treated as unable to make a decision merely because s/he makes an unwise decision.
  4. An act done, or decision made, under this Act for or on behalf of s person whom lacks capacity must be done, or made, in his/her best interests.
  5. Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

1.6 IMCA Training requirements

IMCAs must have completed an approved specialist IMCA training programme before commencing IMCA duties.

All IMCAs must successfully complete unit 305 and, if undertaking DoLS roles, unit 310, within appropriate timescales.

New IMCAs should not practice until they have received training for unit 305.

IMCAs do not undertake DoLS roles until they have received training for unit 310.

2. Decision to Instruct and Referring for an IMCA

2.1 Instruction of IMCAs

The local authority and NHS partners will instruct IMCAs where there is a duty to do so under the MCA.

There are two different referral forms, one for non-DoLs IMCA referrals and one for DoLS IMCA referrals. See Local Forms, Leaflets and Letters to access template forms.

Please complete the appropriate IMCA Referral Form in as much detail as possible and send to Trafford Advocacy Service (see Local Contacts) by secure email.

Please include full details of the decision to be made and a copy of the decision specific capacity assessment.

If staff wish to discuss the case prior to referral. or if the referral is urgent, they should telephone the Trafford Advocacy Service.

The decision as to whether an instruction should be made sits with the local authority and NHS partner and not the IMCA provider. This includes decisions about whether the person lacks capacity, the appropriateness of family and friends to represent them, and whether treatment is serious medical treatment.

Instructions must be made in writing via the referral forms by a person authorised to make the instruction.

On receipt of an instruction the IMCA provider must verify that it was made by an authorised person. The following details which people are authorised in relation to the different IMCA instructions:

Type of IMCA instruction Who can instruct
Accommodation decisions and reviews (move to a care home or hospital for more than 28 days) An employee of the local authority or NHS partner proposing to make, or reviewing, the accommodation arrangements.
Serious medical treatment decisions An employee of the NHS partner which would provide the proposed treatment or a doctor with some responsibility for the decision.
Safeguarding adults The safeguarding manager, or an employee of the local authority or health partner with responsibility for taking the protective measures
A care review (if the adult has no ‘appropriate’ family and friends) An employee of the local authority reviewing the care arrangements.
DoLS IMCA roles An employee of a local authority or health partner who holds delegated supervisory body functions

Once the IMCA Service confirms that the instruction was made by an authorised person the service must be provided. The IMCA provider will advise the instructor, within one working day if DoLS or two working days if non-DoLS, of the name and contact details of the IMCA who will support and represent the individual.

If the instructor has not been advised within 48 hours of the name and contact details of the IMCA, they should make contact with the IMCA service to ensure themselves that an IMCA is appointed and they have the required contact details.

If a different IMCA provider (other than the Trafford IMCA Service) should have been instructed because of where the person is located, the IMCA provider should advise the instructor of this as soon as they become aware of it.

If the IMCA provider has concerns whether an individual is eligible for an IMCA for any other reason than who made the instruction (e.g. the person having someone appropriate to consult or having capacity to make the decision) this may be raised at any time with the person making the instruction.

A decision to withdraw an instruction sits with the instructor and not the IMCA service.

The instructor may at any time withdraw the instruction if they gain information that indicates that the person does not meet the statutory criteria.

Where instruction is withdrawn, the IMCA will cease representing the individual unless they have concerns about an aspect of the decision making process. For example, if instruction is withdrawn because the person has been assessed as having capacity to make the decision the IMCA was originally instructed for, an IMCA might continue working with the person if they were challenging that assessment of capacity.

If instruction is withdrawn, the IMCA’s statutory rights of, for example, access to relevant records and meeting the person in private no longer apply.

Where the local authority / NHS instructs an IMCA and there are family or friends who are involved, it is the instructor’s responsibility to advise them that an IMCA has been instructed, and provide information about the IMCA Service.

If the IMCA provider receives an enquiry or referral in relation to someone who may meet the criteria for an IMCA instruction the following will occur:

  • the IMCA provider will encourage the person to contact someone who would be authorised to make the instruction;
  • the IMCA service will contact an authorised person directly to facilitate instruction.

Decisions about which IMCA supports and represents an individual will be made by the IMCA provider. In line with the MCA Code of Practice IMCAs may hold multiple advocacy roles with an individual. This could include other IMCA roles and non-statutory advocacy.

2.2 IMCA duties: what will the IMCA do once appointed?

The IMCA will contact the instructor to ensure they have full details from the referral form, to clarify any of the detail and to agree timescales.

Arrangements for the first visit will be within 14 days of assignment. IMCA workloads will be managed to ensure that urgent cases are given appropriate priority.

The role of the IMCA:

  • establish the referred persons preferred method of communication;
  • meet with the referred person and use a variety of methods, as appropriate, to ascertain their views;
  • consult with staff professionals and anyone else who knows the person well who are involved in delivering care, support and treatment;
  • gather any relevant written documents and other information;
  • attend meetings to represent the person, raising issues and questions as appropriate;
  • provide / present information to the decision maker verbally and via a written report to help the decision maker to work out what is in the person’s best interest;
  • remain involved until the decision has been made and be aware that the proposed action has been taken;
  • audit the best interest decision making process and challenge the decision if necessary.

2.3 IMCA reports

Written IMCA reports will be provided to the instructor for all instructions made. This is a statutory requirement. See Local Forms, Leaflets and Letters to access template report forms.

The IMCA provider will, wherever possible, ensure that written reports (including interim reports where appropriate) are provided prior to decisions being made.

Where circumstances are such that time frames are very short (e.g. some serious medical treatment decisions), with the agreement of the decision maker the IMCA will report verbally to the decision maker and provide a written report after the decision has been made.

Any requests from other professionals, family members or friends to see IMCA reports should be addressed to the instructor / instructing body. They would need to make a best interests decision as to whether to share reports.

IMCA reports may not be amended by the instructor. (Requests by any party for the IMCA provider to disclose personal records held under the Data Protection Act 2018 must be managed by the IMCA provider.)

The instructor will advise the IMCA of the outcome of the decisions within two weeks of making decisions.

Following the decision the IMCA may ask for a written account of how regard was given to the IMCA’s report or other representations (including verbal) in making decisions.

This should be provided within one week where the IMCA provider identifies this as an urgent matter.

2.4 Closing a Case

The instructor will confirm with the IMCA that all advocacy needs for that instruction have been met.

Following this confirmation the instructor will provide written confirmation to the IMCA that the case is closed. This will include instances where the instruction was withdrawn or the person died.

2.5 Section 39A IMCA Instructions

The supervisory body will instruct the IMCA provider within one working day of being alerted to the need for a S39A IMCA.

On receipt of an authorised instruction the IMCA provider will advise the supervisory body within one working day of the name and contact details of the IMCA who will support and represent the individual.

The supervisory body will ensure that all assessors and the IMCA are provided with contact details within one working day of that information being available.

The IMCA will contact the best interests assessor within one working day of being provided with their contact details.

An IMCA report will always be provided to the Instructor and the best interests assessor which must be considered by the assessor prior to completing the best interests assessment.

The IMCA may make representations to the supervisory body about the conditions, duration and selection of the person’s representative if a standard authorisation is to be granted. The supervisory body will have regard to these representations when granting a standard authorisation.

3. The IMCA Steering Group

A steering group will meet to support the availability and effectiveness of the IMCA Service.

Meetings will take place quarterly with the option of arranging additional meetings as needed.

Representations will include senior managers of the local authority, NHS trusts, Trafford Advocacy Service and the IMCA provider.

Steering group members will have a role in trying to resolve disputes. Their focus will be the interests of the person who is represented by the IMCA Service.

4. Agreement for Resolving Issues in the Decision Making Process

Resolving any disputes is a joint responsibility of both the IMCA provider and the responsible body.

It is important that those responsible for making decisions communicate effectively, in a timely manner, taking into account each other’s points.

Where the IMCA has concerns about the process or outcome of a decision:

  • in the first instance the IMCA should speak to the instructor / decision maker or assessor;
  • if the IMCA still feels that the issue is unresolved they should refer it to that person’s manager, or a relevant senior manager in the responsible body. The IMCA provider should provide a written account of what the concerns are;
  • at this stage it may be appropriate to bring the concerns to members of the IMCA steering group. The members of the steering group will endeavour to support the timely resolving of issues and may suggest appropriate people/routes for the IMCA Service to pursue issues with;
  • if the IMCA still feels the issue is unresolved they can use the local complaints procedure;
  • as a last resort, or where delay could go against the best interests of the person, the IMCA may seek permission to apply to the Court of Protection or judicial review.

The responsible body should make an application to the Court of Protection to decide on the matter if any of the following applies:

  • there is a serious dispute between a responsible body and the IMCA provider about an aspect of the decision making process;
  • the outcome could have significant consequences for the person;
  • it has not been possible to resolve using local processes, or the delay to try to do so could go against the person’s best interests.

If the IMCA provider initiates or is involved in any legal action in its role of supporting and representing an individual, the responsible body will not seek an award of legal costs against the IMCA provider.

5. Complaints about the IMCA Service

Where a complaint is concerned with the decision to instruct the IMCA Service, this will be directed to the instructing body.

Where the complaint is concerned with the conduct or quality of the IMCA Service this should be made in the first instance directly to the IMCA provider.

The IMCA provider will advise the commissioner and steering group of any complaints raised about the service and the outcomes of these.

6. Confidentiality

Health and social care staff who come into contact with IMCAs need to be aware that they may share relevant information.

The IMCA provider will keep all personal information securely. This will comply with the IMCA provider’s confidentiality policy and the Data Protection Act 2018.

7. Monitoring the Quality of the IMCA Service

In addition to the information collected via the quarterly service impact tool kit and the quarterly monitoring meeting, commissioners will assess the quality of the IMCA Service through feedback from instructors and analysis of IMCA reports.

7.1 Feedback from instructors

Commissioners will collect sample feedback from people instructing the IMCA Service. This will take the form of a questionnaire sent to instructors. The questionnaire will address the following.

  • Overall satisfaction rating of the IMCA service.
  • Did the IMCA respond in a timely way to the instruction?
  • Was the IMCA able to attend key meetings?
  • Were the service user’s wishes, feelings, beliefs and values identified by the IMCA service?
  • Was an IMCA report provided, and at an appropriate time in the process?
  • Were written reports produced by the IMCA of a good standard?
  • Did the IMCA’s involvement have a positive outcome for the service user?
  • If the outcome of the process went against the service user’s expressed wishes did the IMCA robustly represent their views (for example, by informally or formally challenging the outcome)?

7.2 Analysis of IMCA reports

Commissioners will arrange for the analysis of a sample of anonymised IMCA reports. This will include the following types of report:

  • reports submitted to decision makers prior to decisions being made;
  • reports submitted by section 39A IMCAs to the best interests assessor prior to completing the best interests assessment;
  • reports submitted by section 39C or 39D IMCAs when completing their work.

The following quality indicators will be used when analysing reports.

  • Does the report demonstrate the IMCA’s understanding of the MCA and the IMCA role?
  • Does the report satisfactorily identify the person’s needs and wishes?
  • Are all statements evidenced?
  • Are individuals and records consulted clearly identified?
  • Does the report communicate clearly what the person receiving the report should consider?
  • Was the report provided at a satisfactory time in the process?

Appendix: Overview of the Process for Instructing an IMCA Advocate

Click here to view Overview of the Process for Instructing an IMCA Advocate: Process Maps