Challenging deprivation of liberty
Independent Mental Capacity Advocates and Relevant Person's Representatives have a positive obligation to assist a person to challenge the deprivation of their liberty in the court where necessary and appropriate. You can make a challenge with or on behalf of an individual if they:
- Do not agree with their capacity assessment
- Are objecting to the deprivation of liberty authorisation, wishing to:
- Leave their current placement and return home
- Leave their current placement and move to a different, or less restrictive, placement
We can also assist you with issues relating to:
- Acting as a 'litigation friend'
- Court of Protection proceedings
- Concerns about capacity assessments, including capacity to consent to sex and marriage, and capacity to access the internet and use social media where there may be concerns in relation to this
- Welfare disputes, including disputes about a change of residence, contact with others and serious medical treatment
- Where a deprivation of liberty authorisation has lapsed and the person is still deprived of their liberty
Where the individual is challenging the lawfulness of the deprivation of their liberty and a standard, or urgent, authorisation is in place, non-means tested legal aid is available (subject to a merits test). We have a legal aid contract and are able to provide legal aid funding in these types of cases.
We often receive instructions from IMCAs and RPRs to visit a service user in their placement, where we will undertake a joint visit, review the restrictions and whether an application to the Court of Protection is required.
Frequently asked questions about being an IMCA or RPR
Fulfilling your responsibilities as an independent mental capacity advocate or a relevant person’s representative can be complex and challenging. We have included answers to some of the most common questions we are asked on this subject below. However, if your question isn’t answered here, please don’t hesitate to get in touch with our experienced team for assistance.
What is the role of an independent mental capacity advocate?
The role of an independent mental capacity advocate is to empower and protect people lacking the mental capacity to make specific important decisions for themselves, such as about their care or where they live. The role includes ascertaining a person’s wishes and feelings, supporting people lacking capacity through the decision making process and ensuring that alternative options and choices are explored and considered for the individual before a decision is made on their behalf.
If the decision that needs to be made is a decision about whether to provide serious medical treatment and the person lacks capacity to make the decision themselves, an IMCA should be appointed where the person has no suitable family or friends that could be consulted. It is the role of the IMCA to decide whether to ask for a second medical opinion and secure the person’s rights in these situations.
IMCA’s can also support people to apply to the Court of Protection, to challenge restrictions placed on them and their deprivation of liberty in a care home or hospital.
When would an independent mental capacity advocate be used?
An IMCA can be used when a person who lacks capacity to make important decisions on their own behalf do not have anyone suitably able to act independently and put forward the person’s wishes and views about a decision, who can help them make the decisions that are needed. It would usually be the local authority that would make a referral for an IMCA, but if the decision relates to a serious medical treatment decision then the referral may be made by a medical practitioner.
If a person is being deprived of their liberty by way of an authorisation under the Deprivation of Liberty Safeguards (DOLS), the person must have someone appointed as a “Relevant Person’s Representative” to represent the person who has been deprived of their liberty. If there are no family members or friends suitable and willing to able to act in this role, a referral should be made by the public body for an IMCA to be appointed.
What is the role of a Relevant Person’s Representative?
If there is not an appropriate family member or friend available to become an RPR, the local authority or a medical practitioner may arrange for an IMCA instead. The role of an RPR is the same whether this is a family member or an IMCA. The role is to maintain contact with the person deprived of their liberty, and represent and support the person in respect of any issues concerning the deprivation of their liberty and the restrictions placed on them. This includes requesting a review of the authorisation, using the complaints procedure or instructing a Solicitor to make an application to the Court of Protection.
Our specialist deprivation of liberty solicitors have extensive expertise and knowledge in this complex area of law. We are committed to making the process for RPR and IMCAs less stressful, time consuming and as simple as possible.
For further information, please contact us on 01616 966 229 or complete our online enquiry form and a member of our specialist team will contact you directly.