The Capacity and Self Determination (Jersey) Law 2016 introduced the role of the independent capacity advocate (ICA). The Capacity and Self Determination Law sets out the ICA roles and functions.
Why is the ICA role important?
ICA s are a legal safeguard to help protect people who lack the capacity to make some important decisions for themselves, including making decisions about where they live and about serious medical treatment options. The lack of capacity may most commonly be as a result of a dementia or significant learning difficulty.
Role of ICA
The ICA role is to support and represent the person in the decision-making process. Essentially, they make sure that the person’s rights and wishes are taken into account and the Capacity and Self Determination (Jersey) Law 2016 is being followed. Normally where a Lasting Power of Attorney or a Delegate is in place for the relevant decision, e.g. Finance or Health and Welfare, an ICA should not be required but there are exceptions. We can also sometimes support the family member in their role – just ring us to ask.
How we work
1. Gathering information
- Meet and interview the person (in private if possible).
- Examine relevant health and social care records.
- Get the views of professionals and paid workers.
- Get the views of anybody else who can give information about the wishes and feelings, beliefs or values of the person – this may include family and or friends.
- Find out other information which may be relevant to the decision.
2. Evaluating information
- Check that the person has been supported to be involved in the decision.
- Try to work out what the person’s wishes and feelings would be if they had capacity to make the decision and what values and beliefs would influence this.
- Make sure that different options have been considered.
- Decide whether to ask for a second medical opinion where it is a serious medical treatment decision.
3. Making representations
ICA s should raise any issues and concerns with the decision maker. This could be done verbally or in writing. ICA s are required to produce a report for the person who instructed them. In most cases this should be provided to the decision maker before the decision is made.
People who instruct ICA s must pay attention to any issues raised by the ICA in making their decision.
4. Challenging decisions
In many cases ICA s will be able to resolve any concerns they have with the decision maker before the decision is made. Where this has not been possible ICA s may formally challenge the decision-making process. They can use local complaint procedures or try to get the matter looked at by the Royal Court.
Who should get an ICA?
An independent capacity advocate (ICA) must be instructed for people in the following circumstances:
- The person is aged 16 or over
- A decision needs to be made about either a long-term change in accommodation or serious medical treatment,
- The person lacks capacity to make that decision, and
- There is no one independent of services, such as a family member or friend, who is “appropriate to consult”.
AND Significant Restrictions on Liberty (SROL)
- ICA s must be instructed for people who are being assessed as to whether they are currently being, or should be deprived of their liberty, where there is no-one “appropriate to consult”.
An ICA may also be provided to people for other decisions concerning
- Care Reviews, or
- Adult Protection/Safeguarding.
In adult protection or Safeguarding cases an ICA may be instructed even where family members or others are available to be consulted.