IMCA and paid relevant person's representative roles in the Mental Capacity Act Deprivation of Liberty Safeguards
IMCA role if authorisation not granted
If a request for a standard authorisation is not granted the supervisory body is required to advise the 39A IMCA that this is the case (form 13), and to provide copies of any assessments completed.
Good practice is for 39A IMCAs to continue to support and represent the person if they have the following concerns:
- The person’s treatment or care does not reflect their best interests.
- The person is being deprived of their liberty.
- The person may have been wrongly assessed as having capacity to make decisions about their treatment or care.
- The assessment process for the standard authorisation.
- Other issues not directly related to the application.
If none of these concerns arise the 39A IMCA will, in most cases, close the case at this point.
Paid representatives, 39C and 39D IMCAs may also have these concerns when an authorisation has ended: including when a request for a further authorisation has been declined. If 39C or 39D IMCAs wish to take action about any of these concerns after an authorisation has ended they need to recognise that they no longer have a statutory IMCA role with statutory powers. This is because these end with the authorisation. This not does prevent 39C and 39D IMCAs or paid representatives taking action as non-statutory advocates. It is different with 39A IMCAs for whom such action can be part of their IMCA role. Practically this means that 39A IMCAs can still use their powers to meet the person and to access records.
For each of the concerns listed above the following suggestions for good practice are made:
The person's treatment or care does not reflect their best interests Open
Where the authorisation was declined when the person was deprived of their liberty but the best interests assessor did not recommend the proposed care arrangements as being in the person’s best interests, the DOLS Code of Practice makes the following recommendations (Paragraphs 4.72 and 4.73):
- the best interests assessor to work with the managing authority to consider alternative approaches to providing treatment and care
- the report of the best interests assessor to be kept on the person’s file.
Where the person is found to be currently deprived of their liberty, the Department of Health has suggested that managing authorities and supervisory bodies should have processes to ensure this is resolved as soon as possible (DH, 2010, section 16).
IMCAs may wish to be involved in discussions with the best interests assessor and the managing authority to try to resolve concerns regarding the person’s best interests. Where these concerns cannot be resolved informally the IMCA may instigate the following actions:
- a formal complaint against the managing authority and/or the local authority or funding PCT for failing to act in the person’s best interests
- an alert to the local safeguarding adult team
- encouraging, supporting or making an application to the Court of Protection
- the MCA Code of Practice says that serious disputes about best interests should be resolved in this way (Paragraph 8.28).
In each case it is recommended that the IMCA provides a written report about why they think that decisions about the person’s treatment or care may not be in their best interests.
The person is being deprived of their liberty Open
An IMCA may be concerned that the person is being (or will be) deprived of their liberty even if the best interests assessor has reached a different conclusion. Different opinions should be expected because there is no simple definition of a deprivation of liberty.
If the IMCA has been unable to resolve their concerns before the best interests assessment is completed they should consider the following actions:
- Ask the supervisory body if they can appoint a different best interests assessor to look specifically at the issue as to whether the person is being deprived of their liberty. This is possible under MCA schedule A1 69(1).
- Encourage, support or make an application to the Court of Protection.
The person's mental capacity Open
An IMCA may be concerned that the person has been wrongly assessed as having capacity to make decisions about their treatment or care. This isn't unusual because in many cases it is difficult to be confident about the person's mental capacity, and different assessors could reach different conclusions.
If the IMCA has been unable to resolve their concerns before the mental capacity assessment is completed they should consider the following actions:
- Ask the supervisory body to arrange for another professional to assess the person’s mental capacity. This would not be a formal assessment as part of the DOLS process. It would be the same process as may happen in any situation where there are doubts about a person’s capacity (MCA, Code of Practice, Paragraph 4.65).
- Encourage, support or make an application to the Court of Protection. The IMCA does not need to be challenging the assessment of capacity to take such action. Because of the significance of the outcome of the assessment it may be appropriate for the Court of Protection to make the decision (see MCA, Code of Practice, Paragraph 8.16).
The assessment process for the standard authorisation Open
The IMCA may have concerns about the way the request for the standard authorisation was managed. This can happen regardless of the outcome of the assessment process. Concerns could include:
- The 39A IMCA was instructed late in the process so there was little opportunity to represent the person.
- An assessor completed their assessment without giving the IMCA an opportunity to make representations.
Concerns about a failure to comply strictly with the requirements of the Deprivation of Liberty Safeguards are very serious. Such failures can make authorisations, where granted, unlawful. In many cases it will be appropriate for IMCAs to make a formal complaint if they believe the process has not been followed as set out in the legislation and code of practice.
Other issues not directly related to the application Open
The IMCAs work may have identified other concerns about the person’s support which are not directly related to the request for the standard authorisation. For example, a request to authorise deprivation of liberty in another setting may have been rejected but there are concerns in the current setting. If these cannot be resolved informally the following actions may be considered:
- Make arrangements for the person to have access to another advocate who can follow up the concerns.
- Make a formal complaint about either the care provider or the funder of the service.