Role of section 39D IMCAs

When 39D IMCAs must be instructed

39D IMCAs are only available when a standard authorisation is in place and the person has an unpaid relevant person’s representative. (Paid representatives are expected to understand their role and to provide the person with appropriate support.)

Where a person has an unpaid representative, a 39D IMCA must be instructed if:

• The person asks the supervisory body for the support of a 39D IMCA.
• Their representative asks the supervisory body for the support of a 39D IMCA.
• The supervisory body believes that the person or their representative would benefit from the support of a 39D IMCA.

On form 11, the reasons for 39D instruction are broken down into:

• The person who is deprived of liberty has an unpaid representative who has requested the support of an advocate
• The relevant person will benefit from the support of an advocate
• The relevant person’s representative will benefit from the support of an advocate
• Without the help of an IMCA, the person / RPR would be
  • i. unable or unlikely to apply to Court or request a review or
  • ii. they have already have failed to do so when it would have been reasonable to.

It is the responsibility of the managing authority to explain the option of the support of a 39D IMCA to both the person and their representative at the start of an authorisation. The managing authority will only be in a good position to do this if they are themselves clear about the role of the 39D IMCA.

Good practice is for supervisory bodies to instruct 39D IMCAs at the start of all standard authorisations where a person has a family member or friend appointed as their representative. This gives the person and their representative the opportunity to meet a 39D IMCA and so that they are in a better position to decide if they need the support of one at that point, or sometime in the future.

Example of 39D IMCA support

A standard authorisation for two weeks was granted to enable Pete who had learning disabilities to receive treatment which he was resisting in hospital. Pete had consumed dangerous levels of alcohol and his life was seriously at risk. His mother was appointed as his relevant person’s representative. When the supervisory body granted the authorisation they instructed a 39D IMCA to meet Pete’s mother who was very confused and distressed about what was happening to her son. The IMCA took time to explain what the authorisation meant and what powers the mother had as Pete’s representative. This reassured her that what was happening was in Pete’s best interests.

The treatment resulted in Pete regaining his capacity to make decisions about his continued treatment. He accepted he needed help and referred himself for ongoing support when he returned home.

(Example provided by Advocacy Focus)

When the 39D IMCA role ends

It is not expected that, once instructed, 39D IMCAs will stay involved until the person is no longer deprived of their liberty under a standard authorisation. 39D IMCAs should consider when to end their involvement while an authorisation is still in place. In making this decision the IMCA will want to consider whether:

• the person and/or their representative understands the authorisation as well as their rights of access to reviews, the Court of Protection and 39D IMCAs
• the person and/or their representative need support while accessing their rights to a review or access to the Court of Protection
• the IMCA is seeking a review or is making an application to the Court of Protection.

It is good practice for 39D IMCAs to end their involvement if no formal action is being taken. In addition to reviews and access to the Court of Protection, formal action would include complaints, safeguarding adults’ procedures, or a further application for a standard authorisation. 39D IMCAs should avoid keeping cases open just in case there will be formal action or until the standard authorisation ends.

When informing the supervisory body that they have closed the case it is good practice for the IMCA to advise when further 39D instructions may be required, e.g. to support the person and/or their representative during a request for any further standard authorisations.

39D IMCAs may wish to give the person and/or their representative their contact details so they can be contacted directly to provide further IMCA support. If this happens the IMCA provider must ensure that the supervisory body makes a further 39D IMCA instruction. Such an arrangement should be agreed with the supervisory body in advance, for example through an engagement protocol, or set out in the IMCA service contract.

Like the 39C IMCA role, once a person is no longer subject to a standard authorisation, the 39D IMCA role ends. If the advocate still has significant concerns they may need to follow these up personally (without IMCA powers) or by referring to another advocate. (See section on When an authorisation ends.)