The deprivation of liberty safeguards extended the IMCA roles. The original roles relate to decisions about accommodation, serious medical treatment, care reviews and safeguarding adults. IMCAs must be instructed to undertake each role by someone who is authorised to do so by the relevant local authority or NHS body. Where an IMCA is undertaking more than one role with an individual, they must be specifically instructed to do each of these by the appropriate body/bodies.
Example of the need for specific instruction
An IMCA has been instructed by a local authority for an accommodation decision. It becomes apparent that the person could be deprived of their liberty in the home that it is proposed they move to. This IMCA cannot take on the 39A IMCA role if a standard authorisation is requested unless they have been instructed to do so by the supervisory body.
Standard authorisations are in part a decision about where someone should live. There may be some overlap with IMCA instructions for accommodation decisions for those people with no one appropriate to consult. The MCA was amended to remove the requirement for an IMCA instruction for an accommodation decision in the following situations.
- If a proposed move is subject to a request for a standard authorisation under the Deprivation of Liberty Safeguards, there is no need to instruct an IMCA specifically for the accommodation decision. This is because the person is entitled to a 39A IMCA if there is no one appropriate to consult (amended MCA, Sections 38(2)A, 39(3)A).
- After a standard authorisation is in place, any further accommodation changes where the person will also be subject to a standard authorisation will not require an IMCA to be instructed. This is because the person should be represented by their relevant person’s representative (MCA, Section 39A(6)). (This includes when this role is being covered by a 39C IMCA).
An IMCA is unlikely to be required for decisions about where a person should stay immediately after an authorisation for a deprivation of liberty ends. This is because the relevant person’s representative (whether paid or otherwise) is not considered as providing care or treatment in a professional capacity (MCA, Sections 38(10), 39(7)). They are expected to provide independent representation for this accommodation decision. If a decision about where the person should stay happens some time after the authorisation ends, an IMCA may need to be instructed because the representative’s role will have ended with the authorisation.
Serious medical treatment decisions
Having a paid relevant person’s representative, 39A, 39C or 39D IMCA does not change a person’s eligibility for an IMCA to be instructed for any serious medical treatment decisions.
Example of when SMT instruction needed
If a person, who has a paid relevant person’s representative and is currently under a standard authorisation, needs inpatient treatment for cancer, an IMCA must be instructed if they lack capacity to make the decision themselves and they have no family or friends who it is appropriate to consult. The IMCA for the serious medical treatment decision must be instructed regardless of whether the person may also need to be deprived of their liberty while in hospital.
Care review and safeguarding adults’ instructions
The option to instruct an IMCA for care reviews and safeguarding adults applies regardless of the availability of a person’s representative, 39A, 39C or 39D IMCA.
It is good practice for local authorities and NHS bodies to involve the relevant person’s representative in care reviews that happen while the person is subject to a standard authorisation: it is unlikely that instructing an IMCA for a care review would benefit the person.
The safeguarding manager making a decision about the benefit of instructing an IMCA where there is a relevant person’s representative (whether paid or not) should consider:
- The opportunity for the representative to be fully involved in the safeguarding adult process,
- Whether there may be a conflict of interests for the person’s representative.
In cases where there is concern about the representative’s ability to represent the person’s views and wishes, it may be desirable to instruct an IMCA.
Where a 39A, 39C or 39D IMCA is involved and safeguarding adults’ procedures are being followed, it should not be assumed that this IMCA will support and represent the person for the safeguarding procedures, even when the IMCA has raised the alert. If the safeguarding manager believes that involving an IMCA will benefit the person it is good practice to instruct an IMCA specifically for the safeguarding adult’s process. In most cases it would be best if the same IMCA undertakes this role.
IMCAs and multiple advocacy roles
The MCA Code of Practice supports advocates taking more than one role with an individual (MCA Code of Practice, Paragraph 10.80). This may benefit the person because they don’t have to deal with different advocates for different issues. Examples include:
- A paid relevant person’s representative who meets the appointment criteria for an IMCA is instructed for a serious medical treatment decision.
- An IMCA instructed for a safeguarding adult issue may also represent the person as a 39A IMCA if one outcome of the process is to request a standard authorisation.
- An advocate is appointed as a paid relevant person’s representative after undertaking the 39A IMCA role.
IMCA providers should seek the views of the person when making such decisions. To protect the independence of advocacy services, supervisory bodies and other instructing bodies should not try to influence who is appointed as the person’s IMCA. See ‘Supporting the independence of the IMCA service’ in SCIE Guide 31: Good practice guidance for the commissioning and monitoring of Independent Mental Capacity Advocate (IMCA) services.