Deprivation of Liberty Safeguards (DoLS) - further information
IMCA role and types of deprivation
The IMCA role varies depending on which instruction is received from the supervisory body.
Advocates protect the human rights of people who lack capacity and seem to be being deprived of their liberty. Our advocates work with them to make sure the deprivation is lawful, reasonable and in their best interests. Independent Mental Capacity Advocates (IMCA) must be instructed for individuals who are being assessed as to whether they are currently being or should be deprived of their liberty.
This comes under the Section 39A IMCAs role they are normally instructed when there is an assessment in response to a request for a standard authorisation, or a concern about a potentially unauthorised deprivation of liberty.
When the Supervisory Body is considering a DoLS authorisation an Independent Mental Capacity Advocate (IMCA) should be appointed for anyone who does not have a suitable friend or family member to speak for them. The IMCA supports the person and collects information about them including their beliefs, values and previous behaviour and uses this to write a report for the assessors. The IMCA can also challenge decisions made by the assessors; this is a 39A IMCA.
When the Supervisory Body authorises (agrees) a deprivation of liberty it must make sure the person deprived of their liberty has a representative who can explain their rights to them and how they can use them. If a family member or friend is willing and able to take this on, they become the person’s unpaid representative. If there is no unpaid representative a Paid Representative is appointed.
If there is a gap between representatives an IMCA can be appointed temporarily; this is a 39C IMCA.
An IMCA can also be appointed when a person who has an unpaid representative if:
The person themselves asks for support; or
The unpaid representative asks for support; or
The Supervisory Body thinks either the person or the unpaid representative would benefit from support; this is a 39D IMCA.
Independent Mental Capacity Advocates (IMCA) can only work with an individual once they have been instructed by an appropriate person/ body. The above roles are set out in section 39 of the amended Mental Capacity Act 2005 (MCA). It is imperative to be clear which role an IMCA is taking on, because they are instructed for different reasons and have different rights and responsibilities.
Responsibilities of an Independent Mental Capacity Advocate working with Deprivation of Liberty Safeguards
IMCA’s are a safeguard for people who lack capacity to make some important decisions. The IMCA role is to support and represent the person in the decision-making process. Basically, they make sure that the Mental Capacity Act 2005 is being followed.
Role of IMCA in the DoLS process
The DoLS/IMCA will help the person and their representative if it’s a 39A, 39C or a 39D to understand the following:
Why the person meets the criteria for authorisation
Any conditions the authorisation is subject to
The effects of the authorisation
What it means
Why it has been given
How long it will last
The right to request a review
The right to make an application to the Court of Protection to seek variation or termination of the authorisation
The IMCA will also:
Meet and interview the person (in private if possible). Part of this involves getting to know the client and finding out their views, wishes and aspirations. This can include regular visits to see the client. Access to records. This includes examining relevant health and social care records including daily notes and care plans.
Obtain the views of professionals and paid workers. This can include talking with care staff about their responsibilities and educating them on good practice.
Obtain the views of anybody else who can give information about the wishes and feelings, beliefs or values of the person. This can include family and friends Find out other information which may be relevant to the decision/ deprivation.
Check that the person has been supported to be involved in the decision. Try to work out what the person’s wishes and feelings would be if they had capacity to make the decision and what values and beliefs would influence this.
Make sure that different and all other options have been considered, especially if there are any less restricted options that could be implemented. Decide whether to ask for a review of the assessment procedure if the IMCA has any concerns around the person having capacity, or the validation of any of the assessment already undertaken.
Under the 39A role the IMCA should be to raise any issues and concerns with the BIA. This could be done verbally or in writing. IMCA’s are required to produce a report for the local authority that instructed them. This report would then normally go to the BIA. In most cases this should be provided to the BIA. BIAs should pay attention to any issues raised by the IMCA in making their decision about the deprivation of liberty. Under this role the IMCA would normally work closely with the BIA. A 39A IMCA would normally only do 1 visit under the 39A role.
Under the 39C role the IMCA would normally submit reports based on observations to local authority. A BIA would not normally be involved in the 39C role, the IMCA would normally do more visits over the course of the Deprivation of Liberty. IMCA’s are required to produce a report for the local authority that instructed them, which would then normally be sent on to the BIA for them to consider in relation to the next authorisation.
In many cases IMCA’s will be able to resolve any concerns they have with the BIA or the local authority. Where this is not possible, a IMCA may formally challenge the decision-making process or the deprivation of liberty. They can contact the local authority to ask for a review of the DoLS. If it is a more severe challenge or the person objects to their DoLS, placement or the care and treatment they are receiving, then an IMCA can process a section 21a challenge.
At times a person may be subject to treatment and support under both MCA and MHA.
The relationship between the Mental Capacity Act 2005 and mental health legislation 1983.
Many advocates understand that there is some overlap between the Mental Health Act 1983 (MHA) and the Mental Capacity Act 2005 (MCA). More often this arises in circumstances with patients where there is uncertainty about how to identify a deprivation of liberty and the interface of the MHA and MCA Safeguards.
The two statutes are underpinned by different viewpoints. The MCA operates to empower people to make decisions for themselves wherever possible and the Act is aimed to protect incapacitated adults.
The Code of Practice (2007) preserves these principles and reinforces the notion that any decisions made should be in the individual’s best interests using the least restrictive measures possible.
Similarly, the MHA provides a legislative framework along with the MHA Code of Practice aimed at providing medical treatment for patients suffering from a mental disorder.
An important segment of the MHA is the management or reduction of risk which arises from the mental disorder. If a patient falls within the principles for admission or treatment under the MHA, then that act takes primacy over the MCA.
Not every case of deprivation of liberty of a person suffering from a mental disorder will necessarily be dealt with under the MHA. For example, if the treatment required is for a physical problem rather than for the treatment of the mental disorder, then the MCA may take precedent.
Paragraph 13.11 of the MCA Code of Practice states “if a clinician believes he can safely assess or treat a person under the MCA, they do not need to consider using the MHA.” There may therefore be cases where there is uncertainty as to whether the MHA criteria are met in which case, the decision-maker will need to consider the MCA.