IMCA and paid relevant person's representative roles in the Mental Capacity Act Deprivation of Liberty Safeguards
The role of the paid representative and 39C IMCA
The role of the person’s representative is set out in Paragraph 140 of Schedule A1 of the amended MCA, and described in the DOLS Code of Practice (Paragraph 7.2) as:
- 'to maintain contact with the relevant person, and
- to represent and support the relevant person in all matters relating to the deprivation of liberty safeguards, including, if appropriate, triggering a review, using an organisation’s complaints procedures on the person’s behalf or making an application to the Court of Protection.'
Frequency of contact Open
The DOLS Code of Practice does not provide guidance about the frequency of contact expected. The level of contact (including the frequency and duration of visits) will depend on the following factors:
- Does the paid representative already know the person? This may influence the time needed to establish rapport, and also how much time is needed to explain the authorisation and paid representative role.
- Is the person able to express their views and wishes? The communication needs of some people may require longer or more frequent visits to make sure that any views they have about the authorisation are identified. Regular contact with people less able to express their views is important because of the need to monitor how they may be affected by the authorisation.
- Is a formal process taking place? If there is a review, a request for another standard authorisation or an application to the Court of Protection the paid representative may need to have a greater level of contact. This may also be true if the person is subject to safeguarding adult proceedings. The additional contact would allow the person to be told about any developments and to be kept informed about progress.
If the paid representative has no concerns about the authorisation and there is no formal process underway it is suggested that they should have contact with the person at least once a month.
When meeting the person the paid representative should do a risk assessment.
Example of paid representative role Open
A standard authorisation was granted for Tina, a woman with learning disabilities living in a self contained flat based within a larger residential service. Restrictions included 2–1 staffing whenever Tina went out of her flat extending to the possible use of restraint if it was judged to be in her best interests to return home. The use of CCTV was also authorised as an alternative to constantly having to share her space with staff.
Paula was appointed as a paid representative as there was no one who had regular contact with Tina outside of services. The supervisory body specifically sought a woman with experience of working with people with severe learning disabilities. Staff who supported Tina did not think that she would tolerate a new person coming into her life. After studying information about Tina and undertaking a risk assessment, Paula started trying to get to know Tina by staying some distance away from her when she went for walks with staff. Over time this developed into accepting closer proximity including in her flat, maintaining eye contact, and communication using signs.
Paula was able to provide independent monitoring to ensure the restrictions continued to be in Tina’s best interests. She had also demonstrated that Tina was more able to cope with new situations that had been expected. This led to Tina being supported to other activities outside of her flat. Paula was also to make suggestions about how to increase Tina’s opportunity to make some decisions using communications aids. Paula was consulted about and supported the decision to grant a further authorisation when the first one ended.
(Provided by North Wales Advocacy and Advice Association)
Access to records for paid representatives and 39C IMCAs Open
Supervisory bodies are required to provide paid representatives and 39C IMCAs with copies of the following information/records:
- the assessments undertaken by the best interests and mental health assessors (standard forms 5-10)
- the standard authorisation (standard form 12)
- notice that a review is being undertaken (unless the review has been requested by the paid representative) (standard form 20)
- the outcome of any review (standard form 22).
It is good practice for the supervisory body to provide paid representatives and 39C IMCAs with:
- a copy of the original request for the standard authorisation and any subsequent requests (standard form 4)
- copies of the care plans and assessments which the managing authority attached to their request for a standard authorisation ( standard form 4 part B3).
Paid representatives do not have special powers to access other information such as other records held by the managing authority. However, they can request access to any record concerning the person – on a best interests basis. Under the Data Protection Act 1998 records may be shared if the record holder believes the person lacks capacity to make a decision about this, and it is in the person’s best interests to share these with the paid representative.
Similarly 39C IMCAs may request information on a best interests basis. They also have the rights shared by all IMCAs of access to relevant records (MCA, Section 35(6)).
Paid representatives will often want to see records kept by the managing authority. This includes records which may show whether the requirements of the authorisation are being met.