National IMCA Conference
Interesting Times – developments for IMCAs in practice and law.
Thursday 12th November 2015
IMCA conference overview
We had a great 1 day conference last week in Derby and we just wanted to share some of the key points made by some of the speakers, thank everyone for their contribution and highlight where you can access the slides that speakers provided.
Firstly thanks must go to Irwin Mitchell who sponsored the conference and our chair Toby Williamson, Head of later life and policy at the Mental Health Foundation who did an excellent job at keeping us all to time and enabling discussions with speakers / Care Act Panel.
Niall Fry from the Department of Health is keen to meet with IMCAs at the end of the year with regards the next annual IMCA report in order to get a sense of what experiences people have had over the last year / 18 months since Cheshire West and the Care Act implementation. He also highlighted the continued discussion that is being had around IMCAs fulfilling the role of a litigation friend in the ongoing Re X case and informed participants that 39 Essex Chambers will soon be producing a 1 page summary including ‘key learning points’ of published judgements from the Court of Protection.
Tim Spencer-Lane shared that the Law Commission had received the largest response to any consultation they’ve ever done with 562 responses in comparison to 241 to the Care Act consultation. The final report will be published at the end of 2016 but the key issues that have arisen are:
- There are mixed views on Cheshire West
- Services are under immense pressure
- Lack of understanding the Mental Capacity Act
- The importance of terminology
- Limited awareness of the UN disability Convention
- Rights to information are crucial
- General support for a new tribunal system and our proposed MHA interface
- Mixed views on the new AMCP role and the proposed hospital scheme
- Some concerns about the authorisation of DoL in domestic settings
- Support for the principle of advance consent to deprivation of liberty
- Agreement that advocacy must play a central role in the new scheme
Specifically with regards advocacy and in terms of questions asked on the day, there were concerns that the existing resources cannot meet the demand and therefore whilst advocacy is viewed as a positive there is a risk it will become watered down. Post feedback submissions queried the merging of advocacy roles and whether this can truly be a benefit to the individual.
Professor Wayne Martin from Essex Autonomy Project talked about liberty from a philosophical and historical perspective and provided a fascinating overview of some of their work. You can hear more from Wayne and his colleagues at their next Summer School taking place in July 2016 http://autonomy.essex.ac.uk/summer-school
Natalie Brown from ASIST gave an inspiring overview of a pilot project they have been running for the last year across Staffordshire in the acute hospitals in order to generate more of an understanding of the MCA and role of IMCA. This has resulted in referrals going from 1 on an annual basis to 15 which whilst remains relatively low has demonstrated the value of the project. Unfortunately funding is coming to an end but ASIST are continuing to look at how to sustain it.
In the afternoon we heard from Yogi Amin and Mathieu Culverhouse from Irwin Mitchell and Adam Fullwood from 39 Essex Chambers (with huge thanks to Adam for stepping in at the last minute). They provided a very useful insight about Re MN (amongst many cases mentioned) and what this means in terms of issues where the local authority cannot fund a particular care package, and where responsibility should lie in challenging this decision i.e. the CoP or via judicial review:
Four reasons why court should not embark on process MN’s parents proposed:
1. Not a proper function of CoP to embark upon a factual inquiry into some abstract issue the answer to which could not affect the outcome of the proceedings before it;
2. Nor is it proper function of CoP to embark upon factual inquiry designed as platform/springboard for possible future judicial review proceedings
3. Exercise runs risk of confusing the different perspectives and principles governing exercise by CoP of its functions and governing the exercise by the public authority of its functions
4. Such an exercise runs risk of exposing the public authority to impermissible pressure:
“The CoP … can explore care plan being put forward by a public authority and, where appropriate, require the authority to go away and think again. Rigorous probing, searching questions and persuasion are permissible; pressure is not.”
1. Not a proper function of CoP to embark upon a factual inquiry into some abstract issue the answer to which could not affect the outcome of the proceedings before it;
2. Nor is it proper function of CoP to embark upon factual inquiry designed as platform/springboard for possible future judicial review proceedings
3. Exercise runs risk of confusing the different perspectives and principles governing exercise by CoP of its functions and governing the exercise by the public authority of its functions
4. Such an exercise runs risk of exposing the public authority to impermissible pressure:
“The CoP … can explore care plan being put forward by a public authority and, where appropriate, require the authority to go away and think again. Rigorous probing, searching questions and persuasion are permissible; pressure is not.”
Professor Celia Kitzinger from York University talked about:
– Best interest and CoP decisions about withdrawing Clinically Assisted Nutrition & Hydration from someone in PVS.
– Family experiences of living with / caring for a relative who is in a vegetative or minimally conscious state including the role of an advocate.
– Advance Decisions and how her new charity Advance Decisions Assistance (previously advertised in our newsletter) can support people to write their own.Celia’s powerpoint has access to all the resources and information she referred to.
– Best interest and CoP decisions about withdrawing Clinically Assisted Nutrition & Hydration from someone in PVS.
– Family experiences of living with / caring for a relative who is in a vegetative or minimally conscious state including the role of an advocate.
– Advance Decisions and how her new charity Advance Decisions Assistance (previously advertised in our newsletter) can support people to write their own.Celia’s powerpoint has access to all the resources and information she referred to.
Finally we were joined on our Care Act panel by Mithran Samuel from Community Care, Mark Neary, Adam Fullwood and Mathieu Culverhouse. There was some excellent discussions and questions and a view that as a sector we must work together to ensure that advocacy is represented within the current financial climate where many services are facing cuts or changes to their contracts. For those that offered to share policies, procedures or helpful signposting documents they created we are happy to share with those that attended.
All slides can be accessed here:
Mental Capacity and Deprivation of Liberty: consultation paper response
On November 2nd we sent our response to the Law Commission DoLS consultation and although the deadline has now passed, you can access it here.
As many of you will be aware, it was a lengthy document and as such our focus was on chapter 9 and the advocacy proposals.
Finally, thank you again to everyone that contributed to a really good day last week, many asked if we can hold the same event next year which we would be more than happy to do and look forward to seeing everyone again.
