Explanatory Note
(This note is not part of the Regulations)
These Regulations define “NHS body” and “serious medical treatment” for the purposes of certain provisions the Mental Capacity Act 2005 (“the Act”) which deal with independent mental capacity advocates (“IMCAs”). The Regulations also contain provision as to who can be appointed to act as an IMCA and as to an IMCA’s functions when he has been instructed to represent a person in a particular case. The provisions about the IMCA’s appointment and functions apply where the IMCA is instructed under sections 37 to 39 of the Act or under regulations made by virtue of section 41 of the Act (see regulation 2(2)).
Regulation 3 defines “NHS body”. This term is used in sections 37 and 38 of the Act. Those sections impose an obligation on NHS bodies to instruct an IMCA in certain circumstances involving acts or decisions relating to serious medical treatment or to accommodation.
Regulation 4 defines “serious medical treatment”. Under section 37 of the Act, an NHS body must instruct an IMCA where it is proposing to provide, or secure the provision of, such treatment.
Regulation 5 provides that a person can only act as an IMCA if he has been approved by a local authority or is a member of a class which has been so approved. For an IMCA to be appointed, he must satisfy certain requirements as to experience, training, good character and independence.
Regulation 6 sets out the steps an IMCA must take once he has been instructed to act in a particular case. He must obtain and evaluate information about the person he has been instructed to represent (“P”) and about P’s wishes, feelings, beliefs or values. He must then report to the person who instructed him.
Under regulation 7, an IMCA who is instructed to represent P in relation to any matter may challenge a decision made in that matter in relation to P, including any decision as to whether P is a person who lacks capacity. For the purpose of making a challenge, the IMCA is treated in the same way as any other person caring for P or interested in his welfare.