Limitation to the exceptions to the duty to instruct IMCA

Extract from Explanatory Notes

Section 49: Independent mental capacity advocates: exceptions

192. Under the MCA an independent mental capacity advocate (IMCA) must be appointed in specified situations to support and represent particularly vulnerable people who have no family or friends or others whom it would be appropriate to consult. Section 40 of the MCA provides some limited exceptions to the requirement to appoint an IMCA in these circumstances.

193. Section 49 substitutes a new version of section 40, to limit the exceptions to the duty to instruct an IMCA. The amendment ensures that there will still be a duty to instruct an IMCA (for health and social care issues) for someone who lacks capacity even if they have someone to represent them on different issues, for example financial issues. There is no such duty if they already have someone to represent them on the same issue.


Date in forceCommencement orderMHA 2007 sectionMHA 1983 sections affected
1/10/07 Mental Health Act 2007 (Commencement No. 3) Order 2007 49 MCA 2005 s40


Mental Health Act 2007 Explanatory Notes - page 35


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