The Mental Capacity Act 2005 (Independent Mental Capacity Advocates) (Expansion of Role) Regulations 2006

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations adjust the obligation to make arrangements as to the availability of independent mental capacity advocates (“IMCAs”) which is imposed by section 35 of the Mental Capacity Act 2005 (“the Act”). Under the Regulations, the Secretary of State may also make arrangements to enable IMCAs to be available to represent a person (“P”) who lacks capacity to agree to the outcome of an accommodation review or to protective measures taken in adult protection cases.

Regulation 2 provides that arrangements under section 35 of the Act may extend to cover IMCAs who are instructed in the circumstances specified in regulation 3 or 4.

Regulation 3 specifies circumstances where an NHS body has made, or a local authority have made, arrangements as to P’s accommodation and it is then proposed to review those arrangements. In addition, P must not have capacity to participate in the review and there must be no one else who can be consulted as to matters affecting his best interests.

Regulation 4 specifies circumstances where it is alleged that P is or has been abused or neglected by another person or that he is abusing or has abused another person. In addition, protective measures affecting P must have been taken, or be proposed, by an NHS body or local authority in accordance with any adult protection procedures which have been set up pursuant to certain statutory guidance. The guidance current when these Regulations were made is entitled “No secrets: guidance on developing and implementing multi-agency policies and procedures to protect vulnerable adults from abuse”. A copy of the guidance can be obtained from the Department of Health website at http://www.dh.gov.uk/PublicationsAndStatistics/Publications/PublicationsPolicy AndGuidance/.

Regulation 5 provides that an NHS body or local authority may instruct an IMCA to represent P if the NHS body considers, or the local authority consider, that that would be of particular benefit to P. The NHS body or local authority must take account of information provided by the IMCA and of any submissions made by him.