The Mental Capacity Act (2005) becomes statutory on Sunday 1st April 2007, under the act Local Authorities and NHS bodies have a duty to instruct an IMCA when proposing a decision to be made for a person who is deemed to lack capacity with respect to the following:

· Serious Medical Treatment (S37); this relates to providing, withholding or withdrawing serious medical treatment

· An NHS body is proposing a stay in hospital for a person for more than 28 days or more than 8 weeks in a care home (S38)

· A Local Authority is proposing to move a person to a care home for longer than 8 weeks (S39)

A person has a statutory right to an IMCA in the above named circumstances if they have no family or friends. Or, that the family or friends are inappropriate to consult with regarding the above named situations.

Two further situations have been identified which will require an IMCA, they are:

Care Reviews

Adult Protection Cases

The Code of Practice states that in such cases as the two above, the Local Authority or NHS body must decide in each individual case whether it would be of benefit to the person who lacks capacity to have an IMCA support them. Policies will be developed locally in order to clarify when an IMCA could be involved.