IMCA and paid relevant person's representative roles in the Mental Capacity Act Deprivation of Liberty Safeguards
Taking formal action
The options for formal action for are:
- complaints – possibly against the managing authority or supervisory body
- a safeguarding adult alert – about the person or another vulnerable adult
- a review for those people subject to a standard authorisation
- an application to the Court of Protection whether or not a person is subject to a standard authorisation.
Complaints and safeguarding adult alerts can be made by anyone at any time. IMCAs and paid representatives have the same opportunity as other people to take these actions.
Paid representatives and 39C IMCAs can require a review of the authorisation, as stated above. 39D IMCAs can request a review, or they can support the person or their representative to demand one. It is also possible for 39A IMCAs to request a review prior to a relevant person’s representative being appointed.
The options for assessing the Court of Protection vary depending on who is representing the person and whether or not a standard authorisation is in place. This is set out in the table below. The table also includes the relevant person’s rights in these areas.
Powers of access to the Court of Protection Open
Before an authorisation is granted, including if an authorisation is not granted Whilst a standard authorisation is in place After a standard authorisation has ended and no further authorisation has been granted Person Right of access to the Court of Protection. This could be supported by a 39A IMCA. Right of access to the Court of Protection (non means tested). This could be supported by a 39A or 39D IMCA, for example, acting as litigation friend. Right of access to the Court of Protection. This could be supported by, for example, a 39D IMCA or paid representative who believed the person was still being, or should be, deprived of their liberty 39A IMCA Can make an application to the Court of Protection on behalf of the person at any time. The role ends with the appointment of the person’s representative. Up to that point the IMCA can make an application to the Court of Protection. Afterwards they can only stay involved if they are making an application to the Court of Protection in connection with the standard authorisation being granted. (See 'When the 39A role ends') Extremely unlikely to have a role at this point. Paid representative or 39C IMCA Roles cannot exist until an authorisation is granted. Right of non means tested access to the Court of Protection. The 39C IMCA role and powers ends with the appointment of a representative. These roles and their right of access to the Court of Protection end with the authorisation. They could still apply to the Court of Protection on behalf of the person if, for example, they believed the person was still being, or should be, deprived of their liberty. 39D IMCA Cannot be instructed if an authorisation is not in place. Can make an application to the Court of Protection on behalf of the person, or support the person or their representative’s rights to access the Court of Protection. Could make an application to the Court of Protection on behalf of the person if, for example, they believed the person was still being, or should be, deprived of their liberty.
Choosing a review or an application to the Court of Protection Open
Where IMCAs or paid representatives have concerns about the deprivation of liberty, they may need to decide whether to exercise the rights for review or access to the Court of Protection. They may also need to advise or support the person or their unpaid representative to instigate either of these formal actions.
It is good practice to try to resolve concerns informally, before deciding to take formal action. An example would be if an IMCA found that a managing authority was not meeting the requirements of the authorisation (including any conditions set). This might make the authorisation unlawful. Paid representatives and IMCAs would be failing in their roles as one of the deprivation of liberty safeguards if they did not take action to address this. This would be the case even if taking action went against the wishes of the person, their representative, or their own views about what was in the person’s best interests.
A first step would be to advise the managing authority that this could make the authorisation unlawful. The managing authority would probably respond by either meeting the requirements of the authorisation, or by requesting a review if they believed any conditions needed to be changed. If this doesn’t happen the IMCA or paid representative should take, or support the person or their representative to take, formal action.
The following factors should help decide whether a review or application to the Court of Protection is appropriate. It is offered as good practice guidance only and should not deter the person or their representative exercising their rights to access the Court of Protection at any time, for any reason. Article 5 of the European Convention of Human Rights requires speedy access to a legal authority where the deprivation of liberty can be challenged. The Court of Protection is the legal authority for DOLS. The review process is not a legal authority.
The wishes of the person or their representative Open
39D IMCAs are required to help the person or their representative exercise their rights of review and application to the Court of Protection if 'it appears to the advocate' that the person or their representative wishes to exercise these rights (MCA, Section 39D(8)).
The 39D IMCAs has no choice where the person or their representative asks specifically for one of these rights (even if this means going against the wishes of the other person).
What is more difficult is when a person 'appears' to want to exercise a right by protesting in some way about the deprivation of liberty, but is unable to state a preference about which right they wish to exercise. For example, they may be able to verbally communicate that they want to go home, or they are pushing against a locked door. It could be argued that everyone deprived of their liberty under the safeguards at some point is protesting about this – otherwise they would not require restrictions to receive care or treatment.
Good practice is for 39D IMCAs to take formal action if:
- On more than one occasion the person tells the IMCA verbally that they are unhappy with any restrictions. Examples include saying they want to go home or to go out but the staff won’t let them. They do not need to be consistent.
- The person appears to be very unhappy or distressed. Examples include looking upset, self injuring, or not eating.
In these situations 39D IMCAs would still need to make a decision about which right to exercise.
There are no similar requirements for paid representatives or 39C IMCAs to require a review or apply to the Court of Protection if it 'appears' that the person would want to exercise one of these rights. This does not of course prevent them from taking such action.
Whether concerns may be resolved by looking at the conditions of an authorisation Open
If there is a possibility that any concerns of the person, their representative or an IMCA can be resolved by looking at the conditions, a review should be sought. Examples include situations where conditions are not being met, or a change in conditions could be in the person’s best interests.
In these situations the supervisory body can choose whether to arrange a further best interests assessment or to vary the conditions without it. The supervisory body should seek the views of the person, their representative or any IMCA involved when making this decision (DOLS Code of Practice, Paragraph 8.14).
If a person in hospital is possibly objecting to treatment for mental disorder Open
If an IMCA or paid representative believes that a person in hospital is objecting to treatment for mental disorder they should seek a review. It is not good practice to avoid doing this in order to prevent the person being detained under the Mental Health Act 1983.
Concerns about whether the authorisation is in the person's best interests Open
If the paid representative or an IMCA believes that the deprivation of liberty is not in the person’s best interests, they should try to resolve this through the review process. 39D IMCAs should also take this action if the person is disputing what is in their best interests. This may lead to a further best interests assessment.
Concerns that the person should be making their own decisions about any restrictions Open
The paid representative or an IMCA may be concerned about whether the person is able to make their own decisions about their care and treatment. The first step should be to try to resolve this through a review which may lead to a further assessment of capacity. 39D IMCAs should take this action if the person is disputing their capacity to make decisions. However, a review may not be required if the person has fluctuating capacity, particularly if when they have capacity they do not object to the restrictions (see DOLS Code of Practice, Paragraphs 8.22 – 8.24).
Concerns that decisions should have been taken to the Court of Protection Open
There may be concerns that a DOLS authorisation has been used inappropriately – where there is a dispute, or to restrict the person’s contact with someone who may cause them harm (see DH briefing on the DOLS, 2010). The view may be that the Court of Protection should have been involved in making such decisions. An IMCA or representative may be concerned even if they are not challenging the decisions made about the person’s care and support.
First they should draw the supervisory body’s attention to their concerns and suggest that they make an application to the Court of Protection – this is the expectation of the MCA Code of Practice (Paragraph 8.28). If this does not happen the paid representative or 39C IMCA should exercise their right to make the application to the Court of Protection. A 39D IMCA will need to decide whether to seek permission to make an application or support the person to make the application. The application should ask the court to decide whether an authorisation has been used inappropriately to make decisions which should have been referred to the court, and for the court to make decisions on these matters (COP 1, Questions 5.1 and 5.2).
If a review doesn't resolve concerns Open
If the review process does not resolve the concerns of the person, their representative or an IMCA, the paid representative and IMCA have the following choices:
- take no further action
- request a further review
- make an application to the Court of Protection.
Unless the paid representative or IMCA has new information that wasn’t available at the initial review, seeking a further review would be inappropriate in most cases.
If the paid representative or an IMCA has significant unresolved concerns they should make an application to the Court of Protection. In situations where the concerns are those of the person and are not shared by the paid representative or the IMCA, different responses may be required depending on the role. 39D IMCAs should make an application to the Court of Protection on the basis that the person would ‘appear’ to want to exercise that right. There is no such requirement for paid representatives and 39C IMCAs.