Independent Capacity Advocates and Deputyship

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Mental Capacity and Deprivation of Liberty SafeguardsThis page contains information on the Mental Capacity Act (2005) and Deprivation of Liberty Safeguards

 

The Mental Capacity Act

The Mental Capacity Act 2005 (MCA) is designed to protect and restore power to vulnerable people who lack capacity. The Act sets out 5 Statutory Principles which are the values that underpin the legal requirements of the Act:

  • It must always be assumed that a person has mental capacity unless established to the contrary
  • A person must be given all practicable support to help in decision making
  • An unwise or eccentric decision should not be treated as evidence of lack of capacity.
  • Any decision made on behalf of someone lacking capacity must be in their best interests
  • Actions taken in respect of a person who lacks capacity must be the least restrictive option of the person’s rights and freedoms.

The application of the Act is supported by a Code of Practice. The Mental Capacity Act Deprivation of Liberty Safeguards (DoLS) took effect from April 1st 2009. It is also supported by its own Code of Practice. The safeguards are designed to protect the interests of vulnerable people who lack capacity and who are either patients in hospitals or residents in care homes (whether placed under public or private arrangements) by:

  • Ensuring they can be given the care they need in the least restrictive regimes
  • Preventing arbitrary decisions that deprive vulnerable people of their liberty
  • Providing safeguards for vulnerable people
  • Providing them with rights of challenge against unlawful detention
  • Avoiding unnecessary bureaucracy.

 

Independent Mental Capacity Advocate (IMCA)

The Independent Mental Capacity Advocate provides an extra safeguard for particularly vulnerable people in specific situations, for example when a DoLS authorisation is requested. An IMCA must also be involved when a person has no one to consult other than paid carers and a decision needs to be made about serious medical treatment, or moving to long term accommodation.

Additionally, Local Authorities have the powers to instruct an IMCA to support and represent a person who lacks capacity where:

  • It is alleged that the person has been abused or neglected by another person or
  • t is alleged that the person is abusing or has abused another person.

 

Wiltshire Independent Advocacy Service - Rethink Advocacy Service
Wiltshire’s provider of Advocacy, IMCA and IMHA services

 

Court of Protection and Deputyship
For particularly difficult decisions, where for example there are disagreements as to the best way forward, or some situations where on-going decisions need to be made by the person who lacks capacity, an application to the Court of Protection may be required.

Page reviewed 9 March 2018