IMCA and paid relevant person's representative roles in the Mental Capacity Act Deprivation of Liberty Safeguards
Assessors working with IMCAs
How assessors know an IMCA is or should be involved Open
Best interests and mental health assessors should be made aware of the involvement of any 39A, 39 C or 39D IMCA by the supervisory body, on their standard referral forms (Part C of forms 28 and 29). In some cases the supervisory body may appoint assessors before having information about any IMCA involved. If this happens the supervisory body should pass the IMCAs details to the assessors as soon as they are available.
Responsibility of assessors to identify the need for an IMCA Open
Assessors with their specialist knowledge of the Deprivation of Liberty Safeguards have a professional responsibility to be alert to situations when IMCAs must or could be instructed. In such cases they should inform the supervisory body. Failing to instruct an IMCA could mean a deprivation of liberty is unlawful because the person will have been denied one of their legal safeguards. Assessors should not complete any assessment without considering whether there should be IMCA input.
39A and 39C IMCAs Open
There is a particular responsibility for the best interests assessor carrying out the best interests assessment to identify whether an IMCA should be instructed. This is because if they are deciding whether depriving the person of their liberty is in their best interests they have a duty: 'if it is practical and appropriate to consult.... anyone engaged in caring for the person or interested in their welfare' (MCA, Section 4).
The best interests assessor at this stage should be very aware if there 'is no person, other than one engaged in providing care or treatment for P in a professional capacity or for remuneration, whom it would be appropriate to consult in determining what would be in P’s best interests' (MCA, Sections 39A(1)b & 39C(1)c).
This could lead to the instruction of a 39A IMCA if there is no standard authorisation in place. A 39C IMCA instruction is possible if there is a gap in the appointments of representatives. Neither of these is required if there is a relevant person’s representative.
39D IMCAs Open
Where assessments are carried out as part of a review, or for a subsequent standard authorisation, assessors should be aware of the option of 39D IMCA instruction. This is only possible if the person has an unpaid representative. An assessor may believe that either the person or their representative would benefit from the support of an IMCA during the review. It would be good practice for an assessor to:
- remind the person or their representative of their right to request a 39D IMCA
- contact the supervisory body to recommend they use their discretion to instruct a 39D IMCA.
The assessor may choose to delay completing the person's assessment until 39D IMCA support has been provided.
Representations from IMCAs and paid representatives to assessors Open
Best interests assessors or mental health assessors are required to take into account any information given or submissions made by IMCAs and paid representatives (Section 132 of the amended MCA). This could include:
- meetings or phone conversations with the assessor
- emails to the assessor
- a written report.
IMCAs or paid representatives are not required to provide written reports to assessors. However it is good practice for a written report to be given to the best interests assessor before they complete the best interests assessment.
Assessors may work with IMCAs or paid representatives in three situations.
1. When assessments are undertaken in relation to a request for a standard authorisation.
This could be because:
- a 39A IMCA is instructed for a first standard authorisation (i.e. when a standard authorisation is not currently in place)
- a 39C or 39D IMCA have been instructed for an existing authorisation
- a paid representative is appointed for a current authorisation.
2. When assessments are undertaken as part of a review of a standard authorisation.
This could be either a 39C or 39D IMCA. For example, a 39D IMCA may have supported the relevant person’s representative to ask for a review.
3. When a best interests assessor is appointed to investigate whether someone is being deprived of their liberty without authorisation.
This would be a 39A IMCA instructed where the person has no one appropriate to consult.
Agreeing timescales Open
For each assessment it is good practice for the assessors, IMCAs and paid representatives to be clear as soon as possible about:
- whether the IMCA or paid representative plans to make representations. (For some assessments this may not be required),
- the deadline for the IMCAs or paid representative's representations.
This is to make sure they have the opportunity to provide input before the assessment is completed.
Particularly where there is an urgent authorisation in place, there will be pressure on assessors and IMCAs to undertake their statutory role within the time allowed. All parties should respect their colleagues' time constraints when negotiating when representations need to be submitted.
Resolving concerns Open
It is good practice to have open discussions between IMCAs, paid representatives and assessors during the assessment process. The assessor is responsible for the assessment but IMCAs and paid representatives may make representations which may inform or question the potential outcome of an assessment.
For example, in a mental capacity assessment an IMCA may provide information which suggests that the person does or does not have capacity. Similarly, the IMCA may present facts to the best interests assessment which they believe should be considered when deciding whether the deprivation of liberty would be in the person’s best interests.
If the representations made by the IMCA or paid representative do not support the potential outcome of the assessment, the assessor should try to address these before completing the assessment. The supervisory body cannot change the outcome of an assessment once it is completed. The DOLS Code of Practice gives the following guidance:
Differences of opinion between an IMCA and an assessor should ideally be resolved while the assessment is still in progress. Where there are significant disagreements between an IMCA and one or more of the assessors that cannot be resolved between them, the supervisory body should be informed before the assessment is finalised. The supervisory body should then consider what action might be appropriate, including perhaps convening a meeting to discuss the matter. Wherever possible, differences of opinion should be resolved informally in order to minimise the need for an IMCA to make an application to the Court of Protection. However, an IMCA should not be discouraged from making an application to the Court of Protection should they consider it necessary.DOLS Code of Practice, Paragraph 3.25
An alternative to pursuing action in the Court of Protection is for IMCAs or paid representatives to make a formal complaint. This may be appropriate if their concerns are about the assessment process rather than the outcome. Formal challenges are likely to be either:
- the assessor did not give due regard to the representations made, or
- the assessor did not give the IMCA or paid representative reasonable opportunity to contribute to the assessment.
Where it is not possible for the assessor to resolve the concerns of an IMCA they should put in writing how they have considered the views of the IMCA (MCA Code of Practice, Paragraph 10.14). This can be included in the 'reason for opinion' sections in the standard forms that the assessors complete. It is good practice to address the unresolved concerns of paid representatives in the same way.
For example, an IMCA may say that in their view the restrictions imposed suggest the person is being deprived of their liberty with reference to previous case law. If the best interests assessor concludes that the person isn’t being deprived of their liberty they should explain why they have taken a different view in relation to the restrictions. This would show the IMCA that they have taken their representations into account and could avoid the need for a formal challenge.
The most likely areas of disagreement between assessors and IMCAs or paid representatives are:
- whether or not restrictions do represent a deprivation of liberty
- whether the deprivation of liberty will be in the person’s best interests
- whether the person has capacity to make a decision about where they should be accommodated to receive the appropriate treatment and care.