Section 39A IMCAs may only be instructed when a standard authorisation is not in place. There are two possibilities:
- A request has been made for a standard authorisation.
- A best interests assessor has been appointed by the supervisory body to check whether a person is being unlawfully deprived of their liberty.
The 39A IMCA’s role is to represent the person in the assessments which will be carried out. In both cases the person should have no one appropriate to consult. This means having:
no person, other than engaged in providing care or treatment for P in a professional capacity or for remuneration, whom it would be appropriate to consult in determining what would be in P’s best interests.
MCA section 39A
The MCA Code of Practice provides guidance about when a person who has contact with family or friends may still need an IMCA (MCA Code of Practice, Paragraphs 10.74–10.80).
In this document the two 39A IMCA roles will be referred to as:
- 39A IMCA (request for standard authorisation)
- 39A IMCA (assessment for a potentially unlawful deprivation of liberty).
How the supervisory body knows the person requires a 39A IMCA
When requesting a standard authorisation the managing authority (i.e. the care home or hospital) is required to tell the supervisory body if the person has no one appropriate to consult. This should be done on page 4 of the standard authorisation form (form 1).
Other people could and should make the supervisory body aware of the need for a 39A IMCA. For example, a best interests assessor may become aware of the requirement for 39A IMCA representation before they complete their assessment.
The need for a 39A IMCA for a potentially unauthorised deprivation of liberty may be less clear. Good practice is for supervisory bodies to check when arranging this assessment whether the person has anyone appropriate to consult.
The need for prompt instruction
The supervisory body should instruct 39A IMCAs as soon as it is aware that this is required. Any delay could mean that the person is not provided with the representation required under the Deprivation of Liberty Safeguards. This could affect the lawfulness of any deprivation of liberty.
Best interests and mental health assessors should be alerted to the involvement of IMCAs by the supervisory body – on their standard referral forms. Details must be provided of 39A IMCAs, and also any 39C IMCA or 39D IMCA. This is because all of these have a statutory role in the assessments and must have an opportunity to make representations before the assessments are completed.
In some cases the supervisory body will need to instruct a 39A IMCA before details of the assessor(s) can be included. As soon as details of the assessor(s) are known they should be forwarded to the IMCA provider.
When a 39A IMCA is not required
There is no requirement to instruct a 39A IMCA if the request for the standard authorisation is made when a standard authorisation is already in place. This is because the person would be represented in the assessments for the new authorisation by their relevant person’s representative (MCA Sections 39A (1) and (6)). There is an exception if the new authorisation would not start before or immediately after the existing authorisation ends (MCA Section 39B (7)). This is because the relevant person’s representative does not have a role when an authorisation is not in place.
Records for 39A IMCAs if an urgent authorisation is in place
Where a 39A IMCA is instructed and there is an urgent authorisation in place, the managing authority is required to provide the 39A IMCA as soon as practical with a copy of:
- the urgent authorisation (MCA paragraph 82(3)(a)), (Form 1)
- a revised urgent authorisation if it has been extended by the supervisory body (MCA section 85(6)), (Form 1, page 7)
- the reasons, if appropriate, why a request for an extension of an urgent authorisation is declined by the supervisory body (MCA section 86(3)).
It is good practice for the supervisory body to provide these documents directly to 39A IMCAs to avoid any delay. They can be attached to the IMCA referral form (Form 11).
When the 39A IMCA role ends
If a standard authorisation is granted the 39A IMCA role ends when the person’s representative is appointed. After that the 39A IMCA may only stay involved if they are making an application to the Court of Protection to challenge the authorisation (see MCA, Schedule A1, Section 161). This includes the 39A IMCA seeking permission to make an application to the Court of Protection as well as supporting the person to make an application on their own behalf, for example as litigation friend. Before deciding to take this action the 39A IMCA must discuss this with the person’s representative.
When a standard authorisation is not granted the 39A IMCA may decide when to withdraw and close their case