When an authorisation is granted the best interests assessor will be able, in most cases, to recommend somebody to be the relevant person’s representative (i.e. a family member or friend).
If the best interests assessor is unable to recommend anyone, the supervisory body must appoint someone to perform this role in a professional capacity. Here this is called a paid representative.
The supervisory body must be satisfied that paid representatives have appropriate skills and experience, including a good understanding of the Deprivation of Liberty Safeguards. Paid representatives should be appointed using form 3.
The DoLS Code of Practice suggests that paid person’s representatives could be provided by advocacy services (Paragraph 7.20). If a supervisory body has commissioning arrangements with an advocacy service, they still need to appoint a named individual from that service to undertake the role. This is different to the IMCA roles where the practice is for the IMCA provider to be instructed. The IMCA provider then has flexibility about which IMCA is involved – including the option of more than one IMCA being involved to ensure that important meetings are covered, for example.
Appendix D gives a template service specification for paid representatives.
If the supervisory body is concerned that a paid representative is not undertaking their role satisfactorily they may give them notice that their role will end (form 26). If this happens a new paid representative will need to be appointed.
Example of paid representative role
A standard authorisation was granted for Gladys, a 75 year old woman with dementia living in a care home. The restrictions were concerned with not allowing her husband to take Gladys out alone because of an incident two years ago when he had hit her. He acknowledged that this had happened saying that the stress of his wife having dementia and money worries had overwhelmed him at the time. Before the authorisation was granted he was spending several hours a day with his wife at the home and wanted to take her back to visit their home. This request had been refused as part of adult safeguarding and had led to the application.
A paid representative was appointed because the best interests assessor did not consider that Glady’s husband could take this role. After reading the standard authorisation and care plan, the paid representative met Gladys and talked to staff in the home. The paid representative urgently contacted the supervisory body saying that standard authorisations should not be used if the main purpose is to restriction contact. They quoted the Department of Health’s briefing on DoLS from April 2010. They also said that by not selecting the husband as the representative had wrongly limited his opportunity to challenge the deprivation of Glady’s liberty.
The supervisory body reviewed the authorisation and appointed a different best interests assessor to do the best interests assessment. This assessor agreed with the view of the paid representative leading to the authorisation ending. A safeguarding meeting was also arranged to review the risks of the husband taking Gladys out. The paid representative was involved in this meeting and supported the decision that there should be no further restrictions on contact.
(Example provided by Advocacy Focus)
When a paid representative should not have been appointed
The Department of Health has reminded best interests assessors that supporting the deprivation of liberty is not a requirement for the selection of relevant person’s representatives (DH, 2010, section 10).
If a paid representative (or 39C IMCA) is concerned that an appropriate family member or friend has not been appointed they should advise the supervisory body of the concerns.
- The supervisory body may then instruct a best interests assessor to look at possible appointments of family or friends as the relevant person’s representative.
- Under statutory instrument SI 2008 no.1315 Regulation 4, the best interests assessor must first decide whether the person has capacity to select their own representative. If the person lacks capacity to make this decision the assessor may recommend an appointment to the supervisory body in the usual way. This can be included on form 3
- This is not a review of the authorisation, and the best interests assessor is not required to undertake a full best interests assessment.
- If the bests interests assessor is able to recommend someone the supervisory body should appoint them.
- If a paid representative has already been appointed, they will need to advise the supervisory body that they are no longer willing to carry out their role before a new representative can be appointed. The supervisory body should confirm the ending of the paid representative role, and should notify relevant people.
- If contacting the supervisory body does not resolve the concerns, the paid representative (or 39C IMCA) should make use of their right to apply to the Court of Protection to challenge the lawfulness of the authorisation, on the grounds that the relevant person representative requirements have not been met.
Restrictions on who can act as a paid representative
The Department of Health has clarified the requirement in regulations for person’s representatives not to be employed by, or providing services to, the managing authority, where the relevant person’s managing authority is a care home (DoLS Code of Practice 7.19).
If an advocate is appointed as a person’s representative it does not prevent this advocate, or others in their organisation, undertaking other advocacy roles with the person, or with other people in the care home. The restriction is relevant if the managing authority directly contracts services from the organisation employing the advocate: for example, if the care home paid the advocacy organisation to support a self advocacy group. In such situations the person’s representative could not be involved in providing the contracted services.
IMCAs acting as the relevant person’s representative
IMCAs are well placed to undertake the person’s representative role because of their knowledge of the MCA and their experience of working with people who lack capacity to make important decisions. Many will also have a strong understanding of the deprivation of liberty safeguards.
However, IMCAs may not be the best choice for the paid representative role with an individual if:
- The person has views about who they would want as a paid representative.
- The person already has an advocate and there is a good relationship between them.
- The person has cultural needs which can be met by a particular choice of a representative.
- The person has particular communication needs (e.g. signing or their first language is not English).
Where IMCAs are appointed to act as a person’s representative they need to be clear that their role and functions are that of the person’s representative, and not of an IMCA. The main difference is that as a paid representative they do not have the IMCAs rights of access to relevant records. Access to records for paid representatives is looked at below.
IMCA instructions where a person has a paid representative or 39C IMCA
Where a person has a paid representative (including when this role is taken by a 39C IMCA) neither they nor their representative are eligible for the support of a 39D IMCA. The paid representative should be able to provide the person with the necessary support. Having a paid person’s representative removes the requirement for some other IMCA instructions. This is set out in detail in the section DoLS IMCA roles and other IMCA roles.
If a person is subject to a standard authorisation and has a paid representative there is no requirement to instruct:
- a 39A IMCA for a further standard authorisation request
- an accommodation IMCA for the decision about where a person should live immediately after the authorisation ends.
It is assumed that the person will be supported by their paid representative for these matters. If there is a gap at the end of the authorisation before these decisions are made, the person may be eligible for the support of an IMCA. This is because the paid representative’s role ends with the authorisation.
The need to instruct an IMCA for serious medical treatment decisions, or the power to instruct an IMCA for care reviews or safeguarding adults, is unaffected by having a paid representative.