Paul Williams and Duncan Dooley-Robinson Solicitors Peter Edwards Law
The Mental Capacity (Amendment Act) 2019 received Royal Assent on 16 May 2019 and is expected to become law on 1 October 2020. The Code of Practice is expected to be published in Spring 2020. The Code will provide guidance as to when an IMCA is to be instructed to assist P and how an IMCA will assist P under the new legislation. Baroness Watkins of Tavistock opined during the 2nd day of the House of Lords committee hearing that P must be fully informed of their rights. This will require a responsible body, which may be either a CCG, local authority or hospital trust, to take such practicable steps to ensure that P, the appropriate person or IMCA supporting P, understand the possible outcome of assessments, the reason why P is deprived of their liberty and P’s rights. These rights will include, the right to:
Request an approved mental capacity professional assessment and review of arrangements;
Challenge the authorisation in Court;
The role of the IMCA will be to explain to P or the appropriate person:
The steps involved in the authorisation process;
The purpose, duration and effect of the authorisation;
Any conditions to which the authorisation is subject;
The reason why P met the qualifying requirements;
The right to object to an authorisation and the right to request a review by an approved mental capacity professional;
The outcome of any review;
The ‘relevant rights’ of P;
How P can exercise his or her ‘relevant rights’;
The term ’relevant rights’ include the right to apply to Court to challenge an authorisation by way of procedure under S21ZA.
The responsible body must ensure that cases are referred to court when the cared for person’s right to a court review is engaged. This is a similar scenario to the present arrangements under s.21a MCA 2005. We anticipate that the Code of Practice may incorporate some of the points referenced in Baroness Watkins speech regarding the role and appointment of IMCA’s by responsible bodies. We also anticipate the number of referrals for support by IMCA services may increase after October 2020 in light of the increased scope of placements covered by the new legislation relating to the liberty protection safeguards, which include supported living, shared lives and private and domestic settings. We also note that the commissioning of IMCA services in respect of Liberty Protection Safeguards will rest with the responsible body and this will include hospital managers, CCG’s and local authorities from October 2020. We will be interested to see how this change in commissioning responsibilities impacts the number of advocates commissioned within a local authority area.