IMCA resource - IMCAs and the Deprivation of Liberty Safeguards
The Deprivation of Liberty Safeguards introduced a number of new roles for independent mental capacity advocates (IMCAs). These are known as 39A, 39C and 39D and refer to the specific sections of the amended Mental Capacity Act (MCA) in which the new roles are described.
IMCAs must be instructed by the Supervisory Body for all of these roles.
There are two 39A IMCA roles, both of which must be made available where the relevant person has no one appropriate to consult. These roles are:
- To support and represent a person during the assessment process where there is a request for a standard authorisation. The assessors are required to have regard to any representations they make.
- To support and represent a person when a best interests assessor has been appointed by a supervisory body to determine whether there is an unlawful deprivation of liberty.
One of the key safeguards for people who are deprived of their liberty under the Deprivation of Liberty Safeguards is the person’s representative. The expectation is that this will be a family member who is both willing and able to do this. Where there is no family member or friend who can take on this role, the Supervisory Body has to appoint someone who could be paid to undertake the role.
The Supervisory Body may instruct a 39C IMCA to fill any gaps between the appointments of person’s representatives in order to avoid the person going for periods without someone in this role. For example, a 39C IMCA could be instructed to cover the gap between the sudden death of the previous representative and the appointment of a paid representative.
The 39D IMCA is only available if the relevant person has an unpaid person’s representative, for example, a sister. Their role is to support the person and their representative in understanding the authorisation and their rights to review and access to the Court of Protection. The IMCA may also request a review or make an application to apply to the Court of Protection.
The Supervisory Body must instruct a 39D IMCA when requested by either the person or their representative, or if the Supervisory Body believes that they could benefit from the support of an IMCA.