Commentary on Sections Independent mental capacity advocate service Section 40: Exceptions
125.This section provides that the independent mental capacity advocacy service does not have a role when the person concerned already has somebody who can speak with the provider of treatment or accommodation (e.g. a person chosen in advance, an attorney under an EPA or LPA, or a deputy). This overrides sections 37(3), 38(3) and (4) and 39(4) and (5), which generally trigger the involvement of an IMCA when there is no one appropriate to consult about the person’s interests, other than a paid or professional carer.