IMCAs will have a different level of involvement in the six different assessments. Sometimes there will be no involvement other than to tell the assessor that they will not be making representations. It will also vary depending on the person they are representing. For example, they may have little to offer to the mental capacity assessment if there are no disputes about the person’s capacity on issues relating to the deprivation of liberty. However, they may wish to provide a written report if there are disputes, such as the person they are representing challenging the suggestion that they can’t make their own decisions.
Assessors and IMCAs should not assume there is a common understanding about whether and when the IMCA will make representations for any assessment. It is good practice is to make contact early in the process to clarify these things. Some IMCA providers use a standard letter to the assessors to do this (see Appendix A).
Good practice for IMCA involvement and making representations for each type of assessment is described below. This is also good practice for paid representatives.
This assessment is made by a best interests assessor. The only time IMCAs may want to contribute to this assessment is when it has not been possible to establish a date of birth with formal records and the person may be under 18.
It is good practice for the assessor to tell the IMCA if they are having to decide whether the person is under or over 18 based on their appearance and life history. Otherwise they may complete their assessment without any input from any IMCA involved.
Mental health assessment
This assessment is made by a mental health assessor. It is a medical diagnosis to see whether the person has a mental disorder. Without medical training it is unlikely that IMCAs will be able to contribute anything to this assessment. The assessor may complete the assessment without any input from any IMCA involved.
The mental health assessor must consider how the mental health of the person being assessed is likely to be affected if deprived of their liberty, and report their conclusions to the best interests assessor. This is the only time when one of the six assessments may influence another assessment. IMCAs will need this information to support their representations in the best interests assessment, and may want to discuss it with the mental health assessor.
This assessment can be made by a best interests assessor if they are an approved mental health professional, or by a mental health assessor if they are a Section 12 doctor.
There are two parts to this assessment. The first is to see if the authorisation would conflict with an existing requirement of the Mental Health Act 1983. The second part checks whether there should be an application for detention under the Mental Health Act 1983 rather than depriving the person of their liberty using a standard authorisation. This is especially relevant for people receiving treatment for their mental disorder in hospital.
IMCAs will have little need to make representations to the first part of the eligibility assessment because any conflict with an existing requirement of the Mental Health Act 1983 should be obvious to an assessor who has expertise in this area.
The IMCA may wish to make representations for the second part, but only if the managing authority is a hospital. These are likely to be in relation to whether the person is objecting to treatment, or whether the person will be receiving any treatment for mental disorder.
In cases where there may be an objection to treatment for mental disorder in hospital it is good practice for the eligibility assessor to give the IMCA the opportunity to make their representations, prior to concluding their assessment.
No refusals assessment
This assessment is undertaken by a best interests assessor. It looks at whether the authorisation would conflict with an advance decision to refuse treatment or a decision made by an attorney or deputy.
Where treatment is proposed the IMCA may help the assessor to find out whether an advance decision to refuse treatment has been made. They may do this by talking to the person, or other people involved. The IMCA might also find an advance decision to refuse treatment when they examine records.
The ability of a person to make an advance decision to refuse treatment should be considered. For example, some people with severe learning disabilities may never have had the capacity to make an advance decision to refuse treatment.
Where an advance decision to refuse treatment has been found the IMCA may wish to make representations about whether this is valid or relevant to the treatment which is proposed.
The IMCA will not usually need to be involved with deciding whether an authorisation would conflict with a decision of an attorney or deputy. This is because where an attorney or deputy has decision-making power over any aspect of the deprivation of liberty, the person is unlikely to be eligible for the support of either a 39A or 39C IMCA (See amended MCA, Section 40(1)). In such a case the best interests assessor will probably talk directly to the attorney or deputy.
In the case of a no refusals assessment where treatment is involved, it is good practice for the assessor to allow time for both themselves and the IMCA to find out whether the person has made an advance decision to refuse treatment. Where an advance decision is found the assessor should give the IMCA an opportunity to make representations with regard to its validity or applicability.
Best interests assessment
IMCAs will always want to contribute to best interests assessments. Before concluding the assessment the best interests assessor should check whether the IMCA wishes to make any final representations. It is also good practice for the IMCA to submit a written report to the assessor before the assessment is finished.
In their report to the supervisory body best interests assessors must include details of everyone they have consulted in carrying out the assessment. The best interests assessor should take care to include details of any 39D IMCA they have consulted. This is because the supervisory body will then be statutorily required to provide the 39D IMCA with details of the outcome of the assessment process, including a copy of the standard authorisation if granted. These must always be provided to any 39A or 39C IMCA involved (MCA, Sections 57(2) and 58(2)).
Particularly where there is an urgent authorisation in place there will be significant time pressures on both the assessor and the IMCA. There is also a risk that both the IMCA and the assessor will be asking the same people similar questions, putting an undesirable burden on the person being assessed and also on staff (see DoLS Code of Practice, Paragraph 4.17). Good practice is for the assessor and IMCA to consider sharing tasks: interviewing people together, for example, or deciding who will interview who.
This best interests assessment can be considered in five distinct parts:
1. Is there a deprivation of liberty?
IMCAs may wish to make representations as to whether restrictions amount to a deprivation of liberty. This includes 39A IMCAs instructed for a potential unlawful deprivation of liberty.
Good practice is for IMCAs to make reference to the factors identified in the DoLS Code of Practice (Paragraph 2.5) or case law, when making representations. For example, saying that the person needing always to go out with staff suggests they are ‘under continuous supervision and control’.
Both the assessor and IMCA should be alert to a potentially inappropriate use of the Deprivation of Liberty Safeguards. This includes cases where the restrictions are primarily to prevent contact with a named individual where there is a risk of harm (see MCA Code of Practice, Paragraph 8.28, and DH briefing on DoLS 2010).
2. Are the restrictions in the person’s best interests?
The DoLS Code of Practice (Paragraph 4.61) identifies the following factors to be addressed in this part of the assessment:
- Whether any harm to the person could arise if the deprivation of liberty does not take place?
- What that harm would be?
- How likely that harm is to arise (i.e. is the level of risk sufficient to justify a step as serious as depriving a person of liberty)?
- What other care options there are which could avoid deprivation of liberty?
- If deprivation of liberty is currently unavoidable, what action could be taken to avoid it in future?
Both the assessor and the IMCA will need to consider the mental health assessor’s views about how the person being assessed is likely to be affected by being deprived of their liberty. If the proposed care would involve the person being moved, then both should consider the impact of the upheaval and of the journey itself on the person.
Where the assessor concludes that the person is, or would be deprived of their liberty but this does not represent their best interests, they are expected to provide written information to commissioners and care providers, to help them decide on future action. It is also recommended that they discuss possible alternatives with care providers during the assessment process (DoLS Code of Practice, Paragraph 4.23). IMCAs will probably want to be involved in any such discussions. (See The person’s treatment or care does not reflect their best interests.)
The best interests assessor may recommend that conditions should be attached to the authorisation. IMCAs may suggest conditions which will benefit the person, rather than just respond to any proposed by the assessor.
The assessor and IMCA should both be aware of the guidance in the DoLS Code of Practice on the setting of conditions (Paragraphs 4.74 and 4.75):
…they may make recommendations around contact issues, issues relevant to the person’s culture or other major issues related to the deprivation of liberty, which – if not dealt with – would mean that the deprivation of liberty would cease to be in the person’s best interests. The best interests assessor may also recommend conditions in order to work towards avoiding deprivation of liberty in future. But it is not the best interests assessor’s role to specify conditions that do not directly relate to the issue of deprivation of liberty.
Conditions should not be a substitute for a properly constructed care plan. In recommending conditions, best interests assessors should aim to impose the minimum necessary constraints, so that they do not unnecessarily prevent or inhibit the staff of the hospital or care home from responding appropriately to the person’s needs, whether they remain the same or vary over time.
The Code of Practice also says that it is good practice for the best interests assessor to discuss any proposed conditions with the relevant personnel at the home or hospital before finalising the assessment (Paragraph 4.75). This would help to clarify whether the conditions recommended could be met by the managing authority – which may also be a concern for the IMCA.
The best interests assessor may conclude that the deprivation of liberty would only be in a person’s best interests if the supervisory body sets specific conditions when granting the standard authorisation. An IMCA may have a similar view. If this is the case the IMCA should put this in writing: both to the assessor before they complete their report and the supervisory body before they make their decision about conditions.
The best interests assessor must suggest the duration of a standard authorisation if this is to be granted (up to a maximum of one year). IMCAs may make recommendations about the length of an authorisation: this could be longer or shorter than the time being considered by the assessor.
Once the assessment is complete, the IMCA may decide to make representations on the duration of authorisation directly to the supervisory body. However, they should remember that the supervisory body cannot grant an authorisation for a period longer than that recommended by the best interests assessor.
5. Person’s representative
Where possible, the best interests assessor should recommend someone to be appointed as the relevant person’s representative in an unpaid capacity (i.e. a family member or friend).
Because 39A IMCAs are involved when the person has ‘no one appropriate to consult’ they will rarely be in a position to comment on the suitability of a family member or friend to take on the person’s representative role. They should still try and find someone who could undertake this role in either a paid or unpaid capacity. For example, an IMCA may identify an ex staff member who has maintained an interest in the person’s welfare.
IMCAs may wish to share their views on the choice of a paid representative with both the best interests assessor, and the supervisory body. This could include the skills the representative should have such as speaking the person’s first language, for example. The IMCA could suggest someone already known to the person who could undertake the role if contracted to do so. For example, a non-statutory advocate who already has a good rapport with the person.
Best interests assessors and IMCAs should be aware of the recent Department of Health advice on the choice of the person’s representative:
10. Paragraph 7.17 of the Deprivation of Liberty Safeguards supplement to the Mental Capacity Act 2005 Code of Practice
It should not be assumed that the representative needs to be someone who supports the deprivation of liberty.
11. The Department is aware of a number of cases where family members have not been selected to be the RPR where they have not been supportive of the deprivation of liberty. That alone is not grounds for not selecting them for the role. Best interests assessors need to assure themselves that the individuals in question are inappropriate for other reasons, which may include that they simply do not wish to take on the role.
12. Both the person “P” now deprived of his or her liberty and his or her RPR have an automatic non-means tested right of appeal to the Court of Protection. Where a family member is not selected to be the RPR and they wish to challenge the authorisation they can only apply to the Court, for a best interests determination and incur the costs of such an application.
13. Sometimes the MCA DoLS authorisation is the culmination of a lengthy dispute between the family and an NHS Trust or local authority about where the person should live. Paragraph 8.28 of the Mental Capacity Act 2005 Code of Practice states that a “court decision might be appropriate” where “there is a major disagreement regarding a serious decision (for example, about where a person who lacks capacity to decide for themselves should live)”
14. Such disputes, which cannot be otherwise resolved, will require the “last resort” determination of the Court rather than being resolved via the Safeguards.
See When a paid representative should not have been appointed for the action paid representatives or 39C IMCAs should take if they are concerned that a suitable family member or friend has not been given the representative role.
Mental capacity assessment
The mental capacity assessment can be undertaken by a best interests assessor, or a mental health assessor. The assessment is to establish whether the person has capacity:
to decide whether or not they should be accommodated in the relevant hospital or care home for the purpose of being given the relevant care or treatment
Even if a person has the capacity to make this decision, it could still be a difficult decision for them to make. Where there is doubt about a person’s capacity the time allowed for the assessment must allow for this. For example, if the person changes their mind this should not be seen as proof of a lack of capacity.
The IMCA should ensure that the person is given every possible support to enable them to make their own decision (MCA, Code of Practice, Paragraph 10.20).
The IMCA is unlikely to be able to decide whether they need to make representations for a mental capacity assessment until they have met the person. It is good practice for assessors to ensure that the IMCA has the opportunity to meet the person before the assessment is completed. Where there is uncertainty about the person’s capacity it would be good practice (where practicable and appropriate) for the assessor to invite the IMCA to be present during the assessment. This would provide an opportunity for a useful and informed discussion before the assessment is finished. It could also be easier for the person who otherwise is likely to be asked similar questions at different times by the IMCA and assessor.
The mental capacity assessment is one of the most common areas of disagreement between assessors and IMCAs. Efforts should be made to resolve these disagreements before the assessment is completed (see ‘Resolving concerns‘ in this document).
If the IMCA has concerns about the potential outcome of the mental capacity assessment it is good practice to put these in writing. It should not be assumed that IMCAs will be more likely that the assessor to view the person as having capacity.
Example of 39A IMCA involvement in the assessment process
An application for a standard authorisation was made for Sheila who at the time was an informal patient on a mental health ward. Restrictions were thought necessary after a number of assaults on staff. Sheila had been assessed as being ineligible for detention under the Mental Health Act 1983.
The 39A IMCA met with Sheila after a risk assessment. They were surprised by how articulate Shelia was and how well she was able to talk about why restrictions were being suggested. After the meeting they spoke to the assessor doing the mental capacity assessment. The assessor had by this time also met Sheila but had formed a view that she lacked capacity regarding the restrictions. The assessor explained that in their meeting Sheila had shown little awareness of having a mental disorder and was unable to retain information relating to why the restrictions were being suggested.
The IMCA asked for the opportunity to meet Sheila again before the assessor concluded their assessment. During this second meeting the IMCA found that the assessor had good reason to question Sheila’s capacity. They wrote a report for this assessor setting out the things that Sheila had said which both supported and challenged an assessment that she lacked capacity. The IMCA also told the assessor that they would not challenge a conclusion that Sheila lacked capacity.
An authorisation was granted when all assessments were returned positive. This was set for three weeks by which time it was expected that Sheila would have moved into a care home. A request was made for a standard authorisation in advance by the care home.
(Example provided by Advocacy Focus)