Statutory Right to Advocacy
Professionals need to be aware of an individuals’ right to advocacy for those patients eligible within their care.
The section below details those rights under the Mental Health Act 1983 and the Mental Capacity Act 2005.
Should you have any questions, please contact our Duty team on 029 2054 0444.
IMCA
IMCAs are a safeguard for people who lack capacity to make some important decisions. Under the Mental Capacity Act (2005), there is a statutory right to advocacy for those lacking capacity and “unbefriended” through the Independent Mental Capacity Advocacy Service (IMCA).
Independent Mental Capacity Advocacy gives people who have an impairment, injury or a disability which results in them being unable to make a specific decision for themselves, the right to receive independent support and representation.
If you work within a local council, or are the NHS decision maker, you MUST refer a person if they have no ‘appropriate’ family and friends who can be consulted and has been assessed as lacking the capacity to make a decision about:
- Any serious medical treatments
- A move to a hospital that would be for more than 28 days
- A move to a care home that would be for more than 8 weeks
- Their safety or care which is likely to result in them being deprived of their liberty
In addition, you MAY need to refer if the person / patient lacks capacity to make a decision about either:
- A Care review (if he/she has no ‘appropriate’ family and friends)
- An Adult Protection referral (whether he/she is the victim or alleged perpetrator, regardless of whether they have family and friends)
IMCAs will check whether you, as the decision makers are:
- applying the principles of the Mental Capacity Act;
- acting in the person’s best interest;
- choosing the least restrictive option for the person.
An IMCA can challenge decisions made by a decision maker, including the capacity assessment itself. They are allowed to meet with the client in private and can ask to see all relevant health, social services and care home records.
For more information, contact our duty team on 029 2054 0444.
IMHA
The Mental Health Act 1983 (2007 amendment) requires that every Health Board in Wales and England makes an IMHA service available for all Qualifying Patients that want it. In Wales the Mental Health Wales Measure (2010) has extended this requirement and expanded those who qualify for the service.
IMHA is a statutory role defined by these pieces of legislation. Patients do not have to access an IMHA if they choose not to.
IMHA’s can only act in relation to medication, treatment and care for the patients’ mental illness. IMHA’s have the right to:
- Visit and interview the patient in private
- Visit, interview and obtain the views of anyone professionally concerned with the patients’ medical treatment
- Inspect relevant patient records (certain conditions apply)
Patients should have access to a telephone to contact their IMHA.
Click here for more informationResponsible Person
The Responsible person, as defined in law, MUST ensure that they inform all Qualifying Patients of their eligibility for IMHA support. In practice, this legal duty will be carried out by appropriate professionals e.g. Nursing staff who must:
- Inform patient orally and in writing
- Give copy of information to nearest relative
- Support patient in making contact with IMHA service
- Record any actions in medical records
If patient does not want an IMHA, there is a duty to check again.
IMHA and patients lacking capacity to instruct
IMHA’s can provide advocacy to people who lack capacity to instruct them and who are unable to communicate their wishes, through a non-instructed approach. The IMHA can represent the rights and past wishes of the patient but will not make Best Interests recommendations. Triggers for this type of referral may include:
- Patient unsettled, persistently trying to leave, refusing to engage with treatment
- No change for patient over prolonged period
- Mental health condition worsening
- Change in treatment
- Family conflicts or disagreements
A patient can turn down IMHA support at any time. To refer or if you have any queries, contact the team on 029 2054 0444.