IMCA role if DoLS authorisation not granted


If a request for a standard authorisation is not granted the supervisory body is required to advise the 39A IMCA that this is the case, and to provide copies of any assessments completed.

Good practice is for 39A IMCAs to continue to support and represent the person if they have the following concerns:

If none of these concerns arise the 39A IMCA will, in most cases, close the case at this point.

Paid representatives, 39C and 39D IMCAs may also have these concerns when an authorisation has ended: including when a request for a further authorisation has been declined. If 39C or 39D IMCAs wish to take action about any of these concerns after an authorisation has ended they need to recognise that they no longer have a statutory IMCA role with statutory powers. This is because these end with the authorisation. This not does prevent 39C and 39D IMCAs or paid representatives taking action as non-statutory advocates. It is different with 39A IMCAs for whom such action can be part of their IMCA role. Practically this means that 39A IMCAs can still use their powers to meet the person and to access records.

For each of the concerns listed above the following suggestions for good practice are made:

The person's treatment or care does not reflect their best interests

Where the authorisation was declined when the person was deprived of their liberty but the best interests assessor did not recommend the proposed care arrangements as being in the person’s best interests, the DoLS Code of Practice makes the following recommendations (Paragraphs 4.72 and 4.73):

Where the person is found to be currently deprived of their liberty, the Department of Health has suggested that managing authorities and supervisory bodies should have processes to ensure this is resolved as soon as possible (DH, 2010, section 16).

IMCAs may wish to be involved in discussions with the best interests assessor and the managing authority to try to resolve concerns regarding the person’s best interests. Where these concerns cannot be resolved informally the IMCA may instigate the following actions:

In each case it is recommended that the IMCA provides a written report about why they think that decisions about the person’s treatment or care may not be in their best interests.

The person is being deprived of their liberty

An IMCA may be concerned that the person is being (or will be) deprived of their liberty even if the best interests assessor has reached a different conclusion. Different opinions should be expected because there is no simple definition of a deprivation of liberty.

If the IMCA has been unable to resolve their concerns before the best interests assessment is completed they should consider the following actions:

The person's mental capacity

An IMCA may be concerned that the person has been wrongly assessed as having capacity to make decisions about their treatment or care. This isn't unusual because in many cases it is difficult to be confident about the person's mental capacity, and different assessors could reach different conclusions.

If the IMCA has been unable to resolve their concerns before the mental capacity assessment is completed they should consider the following actions:

The assessment process for the standard authorisation

The IMCA may have concerns about the way the request for the standard authorisation was managed. This can happen regardless of the outcome of the assessment process. Concerns could include:

Concerns about a failure to comply strictly with the requirements of the Deprivation of Liberty Safeguards are very serious. Such failures can make authorisations, where granted, unlawful. In many cases it will be appropriate for IMCAs to make a formal complaint if they believe the process has not been followed as set out in the legislation and code of practice.

Other issues not directly related to the application

The IMCAs work may have identified other concerns about the person’s support which are not directly related to the request for the standard authorisation. For example, a request to authorise deprivation of liberty in another setting may have been rejected but there are concerns in the current setting. If these cannot be resolved informally the following actions may be considered:

IMCA and paid relevant person’s representative roles in the Mental Capacity Act Deprivation of Liberty Safeguards
Previous section | All sections | Next section