IMCA and paid relevant person's representative roles in the Mental Capacity Act Deprivation of Liberty Safeguards
Records and reports
Access to records for IMCAs and assessors Open
IMCAs and assessors have similar rights of access to records in undertaking their roles. They can:
at all reasonable times, examine and take copies of:
- any health record,
- any record of, or held by, a local authority and compiled in connection with a social services function, and
- any record held by a person registered under Part 2 of the Care Standards Act 2000 or Chapter 2 of Part 1 of the Health and Social Care Act 2008
…which are relevant to their investigationsMCA, Sections 35(6) and 131, amended by Section 17 of the Health and Social Care Act 2008 (Consequential Amendments No.2) Order 2010
A critical difference is that with IMCAs it is the holder of the record who decides what is relevant, whereas assessors can decide for themselves what is relevant.
When sharing records between IMCAs and assessors care must be taken to clarify the basis on which they are shared. For example, where an assessor is carrying out their function as an employee of a local authority, the IMCA may use their right to request relevant records from the assessor. Similarly, an assessor could take copies of relevant health or local authority records that the IMCA has on file.
Records may also be shared with the consent of the person, or in their best interests where they lack capacity to make this decision. For example, if an IMCA copied a document which was relevant to an assessment from a person’s file from where they lived, they could share this on a best interests basis with an assessor – if the person lacked the capacity to make a decision about sharing the information.
Access to records for paid representatives Open
Relevant person’s representatives (whether paid or not) do not have similar rights of access to relevant records. They can however ask for, and receive, copies of any record on a best interests basis if the person lacks the capacity to make this decision.
Assessment reports Open
The supervisory body is required to provide any paid representative, 39A IMCA or 39C IMCA involved with copies of any assessments completed. This includes assessments undertaken:
- to identify a potential unlawful deprivation of liberty
- as part of the assessment process for a standard authorisation
- as part of a review.
Whilst there is no statutory requirement for 39D IMCAs to receive copies of assessments, it is good practice for supervisory bodies to provide them on request.
Assessors may provide copies of their completed assessments directly to an IMCA or a relevant person’s representative.
IMCA reports Open
For all DOLS instructions IMCAs are required to provide a report to the supervisory body. If an assessor or anyone else wishes to see this report it is good practice to request this from the supervisory body rather than directly from the IMCA.
It is also good practice for IMCAs to provide a written report for the best interests assessor before they complete the best interests assessment. On occasion a written report may be required for another assessment. If anyone other than the relevant assessor wishes to access these reports they may be shared on a best interests basis.