When the MCA went through Parliament, disability organizations lobbied for it to include a form of advocacy, to help ensure that the rights of people with disabilities were protected when decisions were made under the MCA. Consequently, the government introduced the Independent Mental Capacity Advocate (IMCA) scheme in s35-41 MCA. These provisions state that when decisions are being made under the MCA in relation to particularly important issues such as placement in a hospital or care home for a prolonged period of time, or when contemplating serious medical treatment, the decision maker must make a referral to an IMCA if there is no-one other than a paid carer to consult about the person’s care and welfare. In some circumstances – such as when a person is deprived of their liberty under the DoLS – a person might be referred to an IMCA even if they do have family or friends who could be consulted.
For the most part, the IMCA’s role is to find out about the person’s wishes, feelings, values and beliefs, by talking to the person, those involved in their care and treatment, and any other people who might be in a position to comment on these. The IMCA must help the person to participate in any decisions made about them, and must also write a report for decision makers about the person’s wishes, feelings, values and beliefs, and any alternative options which might be available. IMCAs can request second opinions for medical treatment decisions, and they can also bring complaints or initiate legal proceedings in the Court of Protection on behalf of the person. When a person is deprived of their liberty, IMCAs also have obligations to help a person to understand and exercise their rights.
You can find out more about the IMCA role in the MCA and DoLS Codes of Practice. The Office of the Public Guardian has published a leaflet about the IMCA service. The Department of Health publishes reports each year on the IMCA service; the Sixth Annual Report was published in 2014.