Better advocacy rights for people without capacity
Wednesday 19 April 2006
Department of Health (National)
Report published on results of IMCA consultation
Particularly vulnerable people who lack capacity to make their own decisions will be supported and represented by a new Independent Mental Capacity Advocate (IMCA), under detailed proposals announced today by health minister Rosie Winterton.
The IMCA service will mean that certain people who lack capacity - this may include people who suffer from dementia, Alzheimer's disease, brain injury or a very severe learning disability - will be helped to make difficult decisions such as medical treatment choices or changes to residence. It is aimed specifically at those people who do not have relatives or friends to speak for them.
The Department of Health today published the results of last year's public consultation which covered important operational details in setting up the IMCA service. These include:
- the main functions the IMCA will carry out;
- how to define "serious medical treatment" - one of the triggers for involving an IMCA;
- whether to extend the service to cover other groups of people or different circumstances.
The scheme was introduced under the Mental Capacity Act 2005 and implementation is planned for April 2007.
Rosie Winterton said:
"This report demonstrates the Government's commitment to supporting the most vulnerable people who lack capacity in relation to particularly difficult situations. We have listened to the views of respondents about the need to develop a high quality service, and I am pleased that we can now move closer to making this service available to the people who need it most."
Notes to editors
Background
The Mental Capacity Act 2005 created the Independent Mental Capacity Advocate (IMCA) service to help vulnerable people who lack capacity who are facing important decisions made by the NHS and local authorities about serious medical treatment and changes of residence. The role of the IMCA is to support and represent the person who lacks capacity. Decision makers in the NHS and in local authorities (for example doctors and social workers), will have a duty to consult the IMCA for the most vulnerable - those who have no family or friends to be consulted - in relation to decisions about:
- serious medical treatment;
- moves arranged by the NHS or local authorities, for example to a hospital or care home.
Consultation exercise
A consultation exercise on the new service ran between July and September 2005 and a report, including the Government's response has been published today. There were a total of 176 written responses to the consultation. In addition over 450 people attended events about the consultation. The report can be found on the DH website and easy read and other accessible forms of the report are available.
The consultation asked for comments on the issues around the operation and implementation of the IMCA service and set out the twelve questions that the Government saw as central to the debate including funding, the role and functions of the IMCA, definitions of serious medical treatment and whether the service should be provided to other groups and situations. The consultation responses are informing secondary legislation and implementation of the Mental Capacity Act 2005 planned for April 2007.
Key features of the proposals
- That the IMCA service is commissioned locally, with Local Social Services Authorities (LSSAs) having financial responsibility within joint commissioning arrangements with Primary Care Trusts (PCTs).
- To revisit the planning assumptions in the light of concerns raised in response to the consultation and in the light of information obtained from the IMCA pilots, within the funding available.
- Regulations should set out minimum standards for individual advocates - in particular, that they should all be subject to Criminal Records Bureau (CRB) checks on employment and receive appropriate training. In addition, the organisations who will be commissioned to provide the service will also have to meet appropriate standards as part of the commissioning/contract arrangements.
- There should be a national training qualification developed which includes specific pathways for both the IMCA and for Mental Health advocates.
- Monitoring arrangements should be managed via local contracts/commissioning, but we will also produce an annual report on the IMCA service for the first three years.
- The definition of serious medical treatment in the regulations should not list specific treatments but the regulations should set out the characteristics of the decision to be reached.
- To review the proposal to involve the IMCA in care reviews in the light of the responses to the consultation and following implementation of the core IMCA service. LAs and NHS bodies should have discretion about when to involve IMCAs in care reviews.
- In relation to the options on extending the service set out in the consultation paper, to extend the average amount of time allocated for each IMCA from 4 hours to 8 hours (option ii), as well as allowing additional time for particularly difficult situations; and to use the regulation making powers to give LAs and PCTs discretion about when additionally to involve an IMCA (option vi).
IMCA Pilots
As part of the development work in implementing the Independent Mental Capacity Advocate service, seven pilots or pathfinders were set up in January 2006 based on existing advocacy organisations across the country, to help identify the practical issues involved in implementing the IMCA service.
Funding
Many of the respondents commented that the planning assumptions of four hours average per decision was too low. The Government has agreed to revisit the figures in the light of the concerns and the pilots that are running but any increase in funding will have implications for extending the service to other groups or services.
Serious Medical Treatment
The Government realises that secondary legislation will be needed to set out the types of serious medical treatment decisions where an IMCA should be involved. This is an important issue but it is clear from the consultation response that it would be difficult to have a definitive list that would cover all serious medical treatments.
Regulations will therefore define the characteristic of treatments that will be relevant for the IMCA service and will require the decision maker to consider a range of factors including irreversibility, choices between treatments, and the risk versus perceived benefits when deciding what constitutes serious medical treatment.
Extending the IMCA service
Local authorities will be the commissioners responsible, in partnership with PCTs, for providing the IMCA service and the Government wants them to have the flexibility to extend the IMCA service within the resources available, to other groups and situations. Regulations will specify the range of other circumstances in which local authorities and national health service bodies may provide the IMCA service on a discretionary basis. This may, for example, include involving the IMCA in a care review; or in other situations where the person is particularly vulnerable. Local Authorities will be required to take a strategic view in assessing local priorities and to publish the additional areas where IMCAs will be used.
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