Helping people understand what they are entitled to under the Mental Capacity Act
The Mental Capacity Act places a statutory duty (a legal requirement) on health or social services to refer their clients to an IMCA if the following criteria apply:
- A decision needs to be made about one of the following situations:
- Change of Accommodation
- Serious Medical Treatment
- If the person has been assessed as lacking capacity to make a decision about change of accommodation or serious medical treatment,
- If there is nobody else other than paid workers who are willing, able and suitable to be consulted about the decision.
IMCAs can also be invited into a best interest process where Social Services feel that the person would benefit from an IMCA as there is no one appropriate to represent them, e.g. during a Care Review, or during Safeguarding proceedings.
IMCAs and Deprivation of Liberty Safeguards (DoLS)
What is a ‘Deprivation of Liberty Safeguard’?
DoLS aim to ensure that people in care homes, hospitals and supported living are looked after in a way that does not inappropriately restrict their liberty. The safeguards should make sure that a care home, hospital or supported living arrangement only deprives someone of their liberty in a safe and appropriate way, and that this is only done when it is in the best interests of the person and there is no other way to look after them.
Why were DoLS introduced?
DOLS were introduced to provide a legal framework around depriving a person of their liberty. Specifically, they were introduced to prevent breaches of the European Convention of Human Rights (ECHR) as identified in the case of HL v United Kingdom, now commonly referred as the ‘Bournewood’ judgement.
To prevent further breaches of ECHR, the Mental Capacity Act 2005 has been amended to provide safeguards for people who lack capacity to consent to treatment or care in a hospital or care home. This is called the Deprivation of Liberty Safeguard, designed to protect people who are being deprived of their liberty in a hospital or care home and monitor that deprivation for its duration.
DoLS & Advocacy
Before being subject to a DoLS, an assessment must be carried out by the local authority to determine whether the person is being detained and what safeguards should be put in place. If the person has no-one to represent their views during that assessment (referred to as the ‘39A role’), a referral must be made by the local authority to an IMCA, who will act as the 39A.
If the assessment concludes that the person is being deprived of their liberty, and should be subject to DoLS, then a representative needs to be appointed to visit the person regularly (usually defined as once every 4-8 weeks) to ensure that the hospital or care home is upholding the conditions of the DoLS and that the DoLS is still in that person’s best interest. This representative can be a family member or close friend if the person is willing, or if there is no-one who can undertake the role a Paid RPR can be requested (see our RPR section for more details). If the representative has any concerns, they can trigger a review of the DoLS.
Both the person being deprived of their liberty and their representative also have a right to IMCA support once the authorisation has been granted; this is called a 39D IMCA. This role is designed to assist a person or representative to understand their authorised deprivation and how they can request a review. The 39D IMCA must be instructed by the local authority whenever the person or their representative has requested it.