Independent mental capacity advocate

Mental capacity advocates are here to support people who don't have capacity to make decisions about their care.

 Content Editor

What is an independent mental capacity advocate?
An independent mental capacity advocate is someone instructed to support and represent a person who doesn't have capacity to make certain serious decisions. Advocates need to be approved by the local authority to undertake their role, which is to gather information, provide support to the person concerned and make representations about that person's wishes, feelings, beliefs and values, at the same time as bringing to the attention of the decision maker all factors relevant to the decision. They will also be able to challenge the decision maker.

In what situations should an independent mental capacity advocate be instructed?
In cases where a person who lacks capacity does not have friends or relatives to consult, decision makers in local authorities and NHS trusts (for example social workers and doctors) will have a duty to consult an independent mental capacity advocate where:

  • The decision is about serious medical treatment provided by the NHS (but excludes treatment regulated under Part 4 of the Mental Health Act 1983).
  • It is proposed by an NHS body or a local authority that the person be moved into long-term care of more than 28 days in a hospital or eight weeks in a care home (where that accommodation or move is not a requirement of the Mental Health Act 1983).
  • A long-term move (eight weeks or more) to different accommodation is being proposed by an NHS body or local authority, for example, to a different hospital or care home (where that accommodation or move is not a requirement of the Mental Health Act 1983).

In addition, regulations on the expansion of the independent mental capacity advocate service provide that local authorities and NHS bodies may involve an independent mental capacity advocate in a care review if a change of accommodation that was arranged by the local authority or NHS is being considered (and the person has already been in that accommodation for 12 weeks or longer).

Regulations also provide that local authorities and NHS bodies may involve an independent mental capacity advocate in adult protection cases. In these cases alone, the requirement that the person has no one whom it would be appropriate to consult does not apply.

In both of the additional cases, the local authority or NHS body must be satisfied it would be of particular benefit to the person to be represented by an independent mental capacity advocate.

The independent mental capacity advocate's report must be taken into account in the decision.

The lack of capacity may be temporary or permanent and will include people with dementia, with brain injury, with learning disability and mental health needs, and those who are unconscious, whether due to an accident, being under anaesthetic or as a result of other conditions.

Find out how to contact independent mental capacity advocate.