The Independent Mental Capacity Advocate

1. Section 39A and 39B

The duty to appoint a section 39A or 39B IMCA

Upon making a request for a standard authorisation the managing authority of the care home or hospital making the application must;

  1. Establish whether there is an appropriate person (carer, donee of a Lasting Power of Attorney or Deputy) that it would be appropriate to consult in determining what would be in the person’s Best Interests; and
  2. If there is no appropriate person, notify the supervisory body of this.

If the supervisory body receives notification that there is no appropriate person to represent the person they must instruct an Independent Mental Capacity Advocate (IMCA), either;

  1. As part of the authorisation of a standard DoLS (section 39A); or
  2. Following the authorisation of an urgent DoLS to support the process of deciding whether a standard DoLS is required when the urgent DoLS expires (section 39B).

If an IMCA is required a standard DoLS authorisation cannot be made until an IMCA has been appointed and carried out relevant functions to support and represent the relevant person.

When the duty to appoint a section 39A or 39B IMCA does not apply

The only occasion when an IMCA does not have to be instructed is where;

  1. A Deputy appointed by the Court of Protection has the power to make decisions in relation to DoLS; or
  2. A donee of a Lasting Power of Attorney has the authority to make decisions in relation to DoLS; or
  3. The relevant person has nominated a person they wish to be consulted on such matters.

2. Section 39C

The duty to appoint a section 39C IMCA

An IMCA must be appointed under section 39C whenever;

  1. A standard DoLS authorisation is granted or renewed; and
  2. The role of the IMCA during the DoLS process has ended; and
  3. The relevant person does not have a Relevant Person’s Representative (RPR); and
  4. The care home establishes that there is no person (carer, donee of a Lasting Power of Attorney or Deputy) that it would be appropriate to consult in determining what would be in the relevant person’s Best Interests.

If the supervisory body receives notification that there is no appropriate person to fulfil the role of the Relevant Person’s Representative (RPR) they must instruct an IMCA as a Paid Relevant Person’s Representative until such time as an appropriate Relevant Person’s Representative can be appointed.

When the duty to appoint a section 39C IMCA does not apply

The only occasion when an IMCA does not have to be instructed is where;

  1. A Deputy appointed by the Court of Protection has the power to make decisions in relation to DoLS; or
  2. A donee of a Lasting Power of Attorney has the authority to make decisions in relation to DoLS; or
  3. The relevant person has nominated a person they wish to be consulted on such matters.

3. Section 39D

The duty to appoint a section 39D IMCA

An IMCA must be appointed under section 39D whenever;

  1. A standard authorisation is in place; and
  2. The relevant person is represented by a Relevant Person’s Representative (who is not a paid Relevant Person’s Representative; and
  3. The relevant person requests the appointment of an IMCA; or
  4. The Relevant Person’s Representative requests the appointment of an IMCA; and
  5. There is no other person (a person nominated by the relevant person, a donee or a Lasting Power of Attorney or a Deputy) authorised to be consulted or make decisions in relation to those matters.

An IMCA must also be appointed when the supervisory body believes that;

  1. Without an IMCA either the relevant person or the Relevant Person’s Representative will be unable to exercise one or more of their relevant rights; or
  2. Without an IMCA either the relevant person or the Relevant Person’s Representative will be unlikely to exercise one of more of their relevant rights; or
  3. Either the relevant person or the Relevant Person’s Representative has failed to exercise one or more of their relevant rights when it would have been reasonable to do so.
Need to know

Relevant rights are;

  1. The right to apply to the Court of Protection (under section 21A); and
  2. The right to request a review of the authorisation.

Key functions of a section 39D IMCA

A key function of an IMCA appointed under section 39D is to support the relevant person and the Relevant Person’s Representative to understand their role and rights, and to feel confident in exercising them. In particular they are expected to take reasonable steps to help the relevant person and the Relevant Person’s Representative to understand;

  1. The effect of the authorisation;
  2. The purpose of the authorisation;
  3. The duration of the authorisation;
  4. Any conditions of the authorisation;
  5. The reasons why each professional involved in carrying out assessments that resulted in the authorisation made the decisions that they did;
  6. The relevant rights; and
  7. How to exercise the relevant rights.

When the duty to appoint a section 39D IMCA does not apply

The only occasion when an IMCA does not have to be instructed is where;

  1. A Deputy appointed by the Court of Protection has the power to make decisions in relation to DoLS; or
  2. A donee of a Lasting Power of Attorney has the authority to make decisions in relation to DoLS; or
  3. The relevant person has nominated a person they wish to be consulted on such matters.

The duty to appoint an IMCA under section 39D may not apply if;

  1. The relevant person is already receiving advocacy support; and
  2. The relevant person does not make a request to the supervisory body for an IMCA; and
  3. The Relevant Person’s Representative does not make a request to the supervisory body for an IMCA; and
  4. The supervisory body is satisfied that the advocate in place is able to support the relevant person and the Relevant Person’s Representative to understand and exercise their relevant rights.

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