The Mental Capacity Act 2005 (Independent Mental Capacity Advocates) (Wales) Regulations 2007

Explanatory Note

(This note is not part of the Regulations)

1.  These Regulations define “NHS body” and “serious medical treatment” for the purposes of certain provisions in 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 or she 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.

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.

3.  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.

4.  Regulation 5 provides that—

(a) a Local Health Board (“LHB”) must make arrangements to make available IMCAs to residents in its area (Regulation 5(1));

(b) in making such arrangements an LHB may make arrangements with a provider of advocacy services (Regulation 5(2));

(c) no person may act as an IMCA unless he or she is approved by the LHB or is employed by a provider of advocacy services to act as an IMCA (Regulation 5(3));

(d) before approving a person to act as an IMCA an LHB must be satisfied that he or she satisfies the appointment requirements as to experience, training, good character and independence (Regulation 5(6));

(e) criminal record certificates are required in determining whether a person meets the appointment requirements as to good character (Regulation 5(8)).

5.  Regulation 6 sets out the steps an IMCA must take once he or she has been instructed to act in a particular case. The IMCA must obtain and evaluate information about the person he or she has been instructed to represent (“P”) and about P’s wishes, feelings, beliefs or values. The IMCA must then report to the person who instructed him or her.

6.  Regulation 7 provides that 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 or her welfare.

7.  Regulation 8 provides that where an NHS body or a local authority has made arrangements as to P’s accommodation and it is then proposed to review those arrangements, that NHS body or local authority may instruct an IMCA. An IMCA may only be instructed under Regulation 8 if P does not have capacity to participate in the review or there is no one else who can be consulted as to matters affecting P’s best interests.

8.  Regulation 9 provides that where it is alleged that P is or has been abused or neglected by another person or that P is abusing or has abused another person and protective measures affecting P are, or are proposed, to be taken by an NHS body or a local authority that NHS body or local authority may instruct an IMCA to represent P. “Protective measures” are those measures taken in pursuance of guidance issued under section 7 of the Local Authority Social Services Act 1970. The guidance current when these Regulations were made is entitled “In Safe Hands”.