There are two sorts of referral. Those that must referred to the IMCA service (mandatory) and those that may be referred (discretionary).
Mandatory referrals to the IMCA service are those where a person
a) lacks capacity to make a specific decision about serious medical treatment or a long-term accommodation move (of more than 28 days in a hospital or 8 weeks in a care home) and
b) does not have appropriate family or friends to be consulted.
There are two types of discretionary referrals:
a) Care reviews where accommodation has been arranged for a person by statutory services, and they have no family or friends who are appropriate to consult.
b) Safeguarding adults’ cases where a protective measure is proposed, whether or not there are family or friends who are appropriate to consult.
The Office of the Public Guardian has more information about the Mental Capacity Act, including easy to read guides for the public.
Referrals can ONLY be accepted from the Decision Maker or the Decision Makers representative with the permission of the Decision Maker (i.e. for serious medical treatment the Consultant & change of accommodation etc. the Social Worker).
DOLS were introduced by the Mental Capacity Act 2005 and came into effect in April 2009. They provide a legal framework and right to appeal for vulnerable people to ensure they are not deprived of their liberty unless it is in their best interests. They do not apply to anyone who is subject to the Mental Health Act except in rare circumstances. DOLS only apply within care homes and hospitals, to people who are 18 and over and who
lack capacity to agree to care or treatment, and
are suffering from a disorder of the mind, and
their carers believe it is in their best interests to deprive them of their liberty to protect them from harm.
If someone is going through the DOLS process and does not have someone who is appropriate to consult, under the Mental Capacity Act they have the legal right to an IMCA. There are three IMCA roles in the DOLS process:
The IMCA DOLS has a very similar role to the original IMCA role. The advocate will;
make representations about a person’s wishes, feelings, beliefs and values in relation to the decision being made
enable the person to participate as fully as they can in the decision making process
obtain and evaluate the relevant information to the decision
ascertain any alternative courses of action that may be available
obtain a further medical opinion if necessary
bring all factors relevant to the decision to the attention of the decision maker(s)
challenge decisions if appropriate
produce a report commenting on the decision to be made and how the individual’s best interests can be promoted
The IMCA DOLS must be instructed by the supervisory body if the person subject to the DOLS has no-one who is appropriate to consult, namely family or significant friends. The S39A IMCA has additional rights and responsibilities to the original IMCA role. The S39A IMCA should be given the relevant paperwork concerning the case, for instance assessments from the supervisory body. They also have the right to apply to the Court of Protection for permission to take the person’s DOLS case to court.
If the DOLS are authorised, a representative must be appointed by the supervisory body to remain in contact with the person and represent them in all matters relating to the DOLS. There are two instances when an IMCA may be instructed:
If a representative cannot be identified, then a paid representative can be nominated. This can be an IMCA.
An IMCA can also be nominated if there is a gap while a representative is being replaced. This is called a S39C IMCA.
The person who is subject to DOLS and / or their representative have the right to access an IMCA if they wish. The IMCA can provide information and support around the DOLS process and how to access a care review or the Court of Protection. This service is not available to a paid representative.
How to refer
All of these IMCA roles have to be instructed through the supervisory body (the local authority or PCT DOLS office). Anyone else who is aware that an IMCA is required should direct their concerns to the supervisory body DOLS office.
Plymouth City Council