The Independent Mental Capacity Advocate

As part of the request for a standard authorisation, the managing authority must establish and notify the supervisory body 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. 

If there is no appropriate person to represent the person, the supervisory body must instruct a Section 39A Independent Mental Capacity Advocate (IMCA).

Note: The standard DoLS authorisation cannot be granted until a Section 39A IMCA has been appointed and carried out relevant functions to support and represent the relevant person.

If the above circumstances apply, a Section 39A IMCA must also be appointed when the supervisory body receives a concern from an eligible person about a potentially unauthorised deprivation of liberty.

For more information about concerns from eligible persons see: The Power of any Eligible Person to Request a Deprivation is Considered. 

The only occasions when an Section 39A IMCA does not have to be instructed are:

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

The supervisory body must appoint a Section 39C IMCA if there is a delay in appointing a Relevant Person’s Representative (RPR), or an existing RPR appointment ends whilst a standard authorisation is still in place.

The role of the Section 39C IMCA is to act as a paid Relevant Person’s Representative until such time as an appropriate other person is appointed, or the standard authorisation expires.

The only occasions when a Section 39C IMCA does not have to be instructed are:

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

Following the granting of a standard authorisation, the supervisory body must appoint a Section 39D Independent Mental Capacity Advocate (IMCA) when it 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.

A Section 39D IMCA must also be appointed whenever:

1. The relevant person is represented by a Relevant Person's Representative (who is not a paid Relevant Person's Representative; and
2. The relevant person requests the appointment of an IMCA; or
3. The Relevant Person's Representative requests the appointment of an IMCA; and
4. 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 appointed under section 39D must take reasonable steps to support 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.

The only occasions when Section 39D IMCA does not have to be instructed are:

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

The duty to appoint a Section 39D IMCA may not apply if:

1. The relevant person is already receiving advocacy support; and
2. Neither the relevant person or the Relevant Person’s Representative make a request to the supervisory body for an IMCA; and
3. 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.