---

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

rose to move, That the draft regulations laid before the House on 13 July be approved [34th Report from the Joint Committee]. The noble Lord said: My Lords, in considering these regulations, the House will return to issues that were discussed extensively during the passage of the Mental Capacity Act. The regulations are being made under the provisions of that Act, which provides a statutory framework to empower and protect vulnerable people who are not able to make their own decisions. The Act introduces the Independent Mental Capacity Advocate service, a new statutory service, which is independent of both the NHS and local authorities. The aim of the IMCA service is to provide high-quality advocacy to support and represent vulnerable people who lack capacity to make important decisions on serious medical treatment and a change of accommodation. Under the Act, NHS bodies and local authorities have a duty to consult the IMCA before making certain decisions where there is no one other than a paid carer whom it would be appropriate to consult in deciding what would be in the person’s best interests. The regulations specify additional circumstances where the NHS body or local authority may instruct an IMCA. We consulted fully on how the regulation-making powers of the Act should be used. We have also consulted further with stakeholders on the regulations themselves. The regulations have been laid before Parliament alongside a further set of regulations—the general regulations, which are subject to the negative procedure. The general regulations cover operational and implementation details, the role and functions of the IMCA and a definition of serious medical treatment. A draft code of practice on the Act, including a chapter on the IMCA service, will also shortly be laid before Parliament. The consultation responses showed very clearly that there were other situations beyond those listed in the Act relating to a change of accommodation and serious medical treatment, where a person who lacked capacity to make serious decisions may be particularly vulnerable. These regulations specify two important new circumstances where NHS bodies and local authorities have the discretion to instruct IMCAs to represent people who lack capacity. Those are care reviews and adult protection, but these regulations do not impose a statutory duty to instruct IMCAs in these circumstances. They are discretionary powers. Regulation 3 allows for an NHS body or local authority to instruct an IMCA to support and represent a person who lacks capacity to participate fully in the decision where a care review is proposed or is in process, and where the person has been in the accommodation for 12 weeks or more and it was not made as a result of an obligation imposed on the person under the Mental Health Act. Of course the requirements in the Act relating to the appointment of an IMCA will also apply. That is the person who has no appropriate family or friends who could be consulted, and the person must be unable to fully take part in the care review because of impaired capacity. Regulation 3 does not apply to arrangements made as a result of an obligation imposed on the person under the Mental Health Act 1983. This is because that Act contains its own safeguards and rights of appeal. Regulation 4 provides that an IMCA may be instructed to support and represent a person who lacks capacity in cases of abuse where adult protection proceedings have been instigated, and it is alleged that the person is or has been abused or neglected by another person or that he is abusing or has abused another person. The regulations provide that an IMCA may be appointed in these cases where protective measures affecting the person have been taken, or are proposed, by an NHS body or local authority. They must have been made in accordance with adult protection procedures which have been set up under the ““no secrets”” guidance issued in 2000 by the Department of Health under Section 7 of the Local Authority Social Services Act 1970. Noble Lords will see that there is a difference in the conditions between Regulations 3 and 4. Whereas Regulation 3 provides that an IMCA may not be instructed where there is someone whom it is appropriate to consult in adult protection cases, under Regulation 4 an IMCA may be appointed even where the person has family and friends whom it might be appropriate to consult. I know that there is a great deal of interest in ensuring that the IMCA provides effective safeguards for people who lack the capacity to make certain serious decisions. That is why we wanted to be sure that there was time for proper debate on this expanded role, hence these regulations are affirmative. We also listened carefully to those who responded to the consultation on the IMCA service. Many wanted safeguards for adults who faced abuse, including those cases where it may be the very people who have care of the person who may be accused of being the abuser. Regulation 4 addresses these issues. Regulation 5 specifies that the extension of the IMCA role requires that NHS bodies and local authorities must consider for each eligible individual whether they would benefit from this additional safeguard. In some cases, for example, where a person already has an advocate actively involved, the local authority may decide that an IMCA may not be necessary. The extension of the role allows an IMCA to be instructed, but does not require one in all cases. Secondly, where an IMCA has been instructed, the NHS body or local authority must take into account the information provided by the IMCA in making any relevant decision that results from a review of care arrangements or protection measures. This is intended to ensure that the views of the IMCA are properly taken into account when an important decision is being made. These regulations are part of a package of measures, including the Act itself, the general regulations, the code and the commissioning guidance, that together provide the framework for implementing the IMCA service. The service will, as a result, provide an important new service: a statutory advocacy service targeted at some of the most vulnerable people in our society. It will provide a new safeguard for them when facing particularly important decisions. We aim to implement the IMCA from April 2007. I beg to move. Moved, That the draft regulations laid before the House on 13 July be approved [34th Report from the Joint Committee].—(Lord Warner.)