Serious Medical Treatment and the Mental Capacity Act, 2005

September 2014

Independent Mental Capacity Advocates (IMCA’s)

• Donna Lovell (IMCA & IMHA)• Denise Jackson (IMCA & IMHA)• Angela Ingram (IMCA)

Independent mental capacity advocate (IMCA)

DUTY TO CONSULT AN IMCA• The Local Authority/NHS must consult the IMCA where;• a decision is being made about either

1. Serious medical treatment or2. Long term moves (accommodation)

• and the person does not have the capacity to make that decision• and there are no family or friends appropriate to consult

Duty to consult an IMCA

• The Mental Capacity Act (MCA) requires doctors to involve an independent mental capacity advocate (IMCA) for serious medical treatment decisions when:• a best interests decision is required because the

doctor has assessed the person as not having the capacity to make the decision themselves• the person does not have family or friends with whom

it is ‘appropriate to consult’ about the decision.

Duty to consult an IMCA• Serious medical treatment is defined in

the Mental Capacity Act 2005 as treatment which involves providing, withdrawing or withholding treatment in circumstances where one or more of the following apply:• in a case where a single treatment is being proposed,

there is a fine balance between its benefits to the patient and the burdens and risks it is likely to entail for them• in a case where there is a choice of treatments, a

decision as to which one to use is finely balanced• what is proposed would be likely to involve serious

consequences for the patient.

Duty to consult an IMCA

The MCA Code of Practice says that ‘serious consequences’ may include treatment options which:• cause serious and prolonged pain, distress or side

effects• have potentially major consequences for the patient

(for example, major surgery or stopping life-sustaining treatment)• have a serious impact on the patient’s future life

choices.

Duty to consult an IMCA• The Code of Practice lists the following examples of

possible serious medical treatments:• chemotherapy• electro-convulsive therapy• therapeutic sterilisation• major surgery (such as open-heart surgery or brain/neurosurgery)• major amputations (for example, loss of an arm or leg)• treatments that will result in permanent loss of hearing or sight• withholding or stopping artificial nutrition and hydration• termination of pregnancy.

• Any decision not to offer the above treatments would similarly require the involvement of an IMCA.

What about emergency situations?

• The only situation in which the duty under the Act to instruct an IMCA need not be followed is when an urgent decision is needed, for example, to save a person’s life. However, if further serious treatment follows an emergency situation, there will be a need to instruct an IMCA.

Is an IMCA required if the person is being detained under the MHA? • Responsible bodies do not have to instruct an IMCA for

patients detained under the Mental Health Act 1983, if: • the treatment is for mental disorder• they can give it without the patient’s consent under that Act. • If serious medical treatment proposed for the detained patient is

not for their mental disorder, the patient then has a right to an IMCA – as long as they meet the MCA’s requirements. So a detained patient without the capacity to consent to cancer treatment, for example, should qualify for an IMCA if they do not have any family or friends with whom it would be appropriate to consult.

What will the IMCA do?• The IMCA supports and represents the person in the

decision-making process. This will involve:• speaking to the person themselves where possible• speaking to the doctor and other medical staff about the

proposed treatment• looking at relevant health records (IMCAs have a statutory

right to access and take copies of these).• The IMCA is there to ensure that the person’s wishes and

feelings have been considered and that the MCA is being followed.

• The IMCA has a statutory right to ask for a second medical opinion. The IMCA is required to provide a report which should be considered by the doctor before making their decision.

What are the Doctor’s statutory obligations? • Where a doctor is making what could be regarded as a

serious medical treatment decision for someone who lacks the capacity to make that decision themselves and where there are no family or friends with whom it is appropriate to consult, the MCA imposes the following duties on doctors:• to make sure an IMCA has been instructed• to provide access to relevant health records• to have regard to any issues and concerns raised by the

IMCA, including those included in the IMCA’s report

Independent mental capacity advocate (IMCA)

POWER TO CONSULT AN IMCA

• The Local Authority/NHS may consult an IMCA where the person does not have the capacity to agree to the arrangements for;• Accommodation/care reviews, where there are no family

or friends able to support and represent the person• adult protection proceedings, for victim or alleged

perpetrator regardless of family/friend involvement

Referring to the IMCA service• IMCA referral forms are available to download from our

website: http://swindonmind.org/downloads/

• Email: imca@swindonmind.org

• Telephone number: 01793 432031

• Fax number: 01793 436889