IMCA and paid relevant person's representative roles in the Mental Capacity Act Deprivation of Liberty Safeguards
Section 39C IMCAs
When 39C IMCAs must be instructed Open
The 39C IMCA role can be understood as covering gaps (but not all gaps) in the appointments of relevant person’s representatives. The role ends when another relevant person’s representative is appointed.
39C IMCAs must be instructed when a standard authorisation is in place if:
- the appointment of a relevant person ends, and
- there is no one appropriate to consult who could represent the person’s best interests.
39C IMCAs have the powers of the relevant person’s representative to demand a review and non-means tested access to the Court of Protection. Instructing a 39C IMCA allows people who are deprived of their liberty under the safeguards to always have someone independent to represent their interests.
A 39C IMCA may be required, for example, in the following situations:
- If a sister appointed as a relevant person’s representative dies and there is no other family member or friend who can represent the person.
- If a paid relevant person’s representative changes jobs or moves to another part of the country so is unable to continue in their role.
Where there are good commissioning arrangements in place so that supervisory bodies can appoint paid representatives promptly, the need for the 39C IMCA role will be rare.
39C IMCA can’t cover all gaps Open
The legislation does not allow for 39C IMCA instruction for all gaps. For example, any gap before the appointment of the first relevant person’s representative. This is because the condition of the appointment of a relevant person ending will not have been met. In many of these situations the person will still have the involvement of a 39A IMCA because their role does not end until the appointment of the relevant person’s representative. However, once an authorisation is granted the 39A role is limited to deciding whether to challenge the authorisation. They do not have the relevant person’s representative’s powers to demand a review or to have non-means tested access to the Court of Protection.
If a family member is available to take over the relevant person’s representative role from another family member the second condition: that there is no one appropriate to consult, would also not be met.
When the 39C IMCA role ends Open
The 39C IMCA role ends with the appointment of a relevant person’s representative. After this point they no longer have the powers shared with all IMCA roles or those specific to the 39C role.
If an authorisation ends before a representative had been appointed, the ongoing 39C role depends on whether a further standard authorisation is granted. If one is granted the 39C role continues without a new instruction being required. If a further standard authorisation is not applied for, or is not granted, the 39C IMCA role ends at this point.
As an advocate they may still have significant concerns when an authorisation is no longer in place: for example, if they believe the person is, or should still be, deprived of their liberty. They may need to follow these up personally or by referring to another advocate. If they follow these concerns up themselves they do not have the powers held by IMCAs. (See section on When an authorisation ends).