Mental Capacity


See also Independent Advocacy Case Studies, Resources

1. Introduction

Advocacy involves an adult getting support from another person to help them express their views and wishes, and to ensure their voice is heard.

Advocates can support an adult in different ways, including:

  • listening to their views and concerns;
  • helping them explore their options and rights;
  • giving them information to help them understand the issues and supporting them to make informed choices as much as possible;
  • helping them contact relevant people, or contacting them on their behalf;
  • accompanying and supporting them to meetings and / or appointments.

An advocate should not:

  • give the adult their personal opinion;
  • solve problems and make decisions for the adult;
  • make judgements about the adult.

Friends, family, or carers can act as advocates for the adult.

Some adults may require professional advocacy, the different types which are outlined below.

2. Independent Advocates

Everyone should have access to information and advice on care and support and keeping safe from abuse or neglect (see Information and Advice and Safeguarding Adults from Abuse and Neglect). There may be some people who require independent advocacy to access information and advice. Local authorities will need to consider such needs of an adult to ensure that information and advice services are accessible.

Once a person has contacted the local authority, or come to the local authority’s attention as a result of a safeguarding concern, they must be actively involved in identifying their needs through assessment, in developing their care and support plan, and in leading their care reviews, where relevant, and being involved in any safeguarding enquiry or safeguarding adult review (SAR).

The aim of advocacy is to enable people who have substantial difficulty in being involved in these processes to be involved as fully as possible, and where necessary to be represented by an advocate who speaks on their behalf.

The ultimate aim is for people’s wishes, feelings and needs to be at the heart of the assessment, care planning and review processes. This needs to be just as true for those who are the subject of a safeguarding enquiry or SAR.

The Equality Act 2010, requires that reasonable adjustments should be made to ensure that disabled people have equal access to information and advice services. Provision of such adjustments, information in different formats for example, may reduce or remove a substantial difficulty a person may have in being involved.

Many people who qualify for advocacy under the Care Act will also qualify for advocacy under the MCA. The same advocate can provide support as an advocate under the Care Act and under the MCA. This is to enable the person to receive seamless advocacy so that they don’t have to repeat their story. Whichever legislation the advocate is acting under, they should meet the appropriate requirements for an advocate under that legislation (see Section 3, Independent Mental Capacity Advocates).

2.1 Providing Independent Advocacy

The local authority has a duty to arrange an independent advocate for:

  • all adults, as part of their own assessment and care planning and care reviews and to those in their role as carers;
  • children who are approaching the transition to adult care and support, when a child’s needs assessment is carried out, and when a young carer’s assessment is undertaken;
  • for adults who are subject to a safeguarding enquiry or SAR.

There are two conditions which need to be met for the provision of an independent advocate:

  1. that if an independent advocate were not provided the person would have substantial difficulty in being fully involved in these processes;
  2. that there is no appropriate individual available to support and represent the person’s wishes who is not paid or professionally engaged in providing care or treatment to the person or their carer.

The role of the independent advocate is to support and represent the person and to facilitate their involvement in the key processes and interactions with the local authority and other organisations as required for the safeguarding enquiry or SAR.

In general, a person who has substantial difficulty in being involved in their assessment, plan and review, will only become eligible for an advocate where there is no one appropriate to support their involvement.

2.2 Involving Adults in Decisions about their Care and Support

People must be involved fully in decisions made about them and their care and support or where there is to be a safeguarding enquiry or SAR. They should be active partners in the key care and support processes of assessment, care and support and support planning, review and any enquiries in relation to abuse or neglect.

This applies in all settings, including people living in the community, in care homes or, apart from safeguarding enquiries and SARs, in prisons.

The local authority must decide whether a person has substantial difficulty in being involved with these processes. If it is thought that they do, and that there is no appropriate individual to support and represent them the local authority must arrange for an independent advocate to support and represent the person.

3. Independent Mental Capacity Advocates

See Mental Capacity

The majority of adults who require the support of an Independent Mental Capacity Advocate (IMCA) are people who lack mental capacity, due to learning disabilities, dementia, acquired brain injuries, mental health problems and / or are affected by drug or alcohol use for example.

IMCAs also act when people have a temporary lack of capacity because they are unconscious or barely conscious whether due to an accident, being under anaesthetic or as a result of other conditions.

A person’s capacity may vary over time or may depend on the type of decision that needs to be made.
Many adults have significant barriers to communication and are unable to instruct the advocate themselves. In addition, many people using the service will be unable to express a view about the proposed decision.

The IMCA service is provided for any person aged 16 years or older, who has no one able to support and represent them, and who lacks capacity to make a decision about either:

  • a long-term care move;
  • serious medical treatment;
  • safeguarding adult procedures; or
  • a care and support plan review.

Such a person will have a condition that is affecting their ability to make decisions.

IMCAs should be available to people who are in prison, in hostels or homeless and who lack capacity to make decisions about serious medical treatment or long term accommodation.

Both the Care Act and the MCA recognise the same areas of difficulty, and both require a person with these difficulties to be supported and represented, either by family or friends, or by an independent advocate or independent mental capacity advocate in order to communicate their views, wishes and feelings.

4. Independent Mental Health Advocates

Under the Mental Health Act 1983 (MHA) people, known as ‘qualifying patients’, are entitled to the help and support from an Independent Mental Health Advocate (IMHA).

Section 117 of the MHA places a duty on the NHS and local authorities to provide aftercare and this will usually involve a joint assessment (often under the Care Programme Approach) including an assessment of the person’s care and support needs, a care and support or support plan and subsequent review (which may reach a decision that a person is no longer in need of aftercare).

Those people who do not retain a right to an IMHA, whose care and support needs are being assessed, planned or reviewed should be considered for an advocate under the Care Act, if they have substantial difficulty in being involved and if there is no appropriate person to support their involvement