Apologies that such a significant issue only gets a micro-post, I’m buried alive in work today. But I wanted to share with you some data on complaints and legal action which originated with an IMCA referral. As you all know, IMCAs were invented in response to concerns over the lack of oversight over best interests decision making. They have a power (notably, not a duty) to initiate complaints or legal action on behalf of P, although there is an absolute dearth of guidance as to when they should exercise this power. Under s39D, IMCAs referred to support the detainee or their representative have not only a power but an active duty to help them exercise their rights to challenge the detention if it appears that they want to. How often have they exercised this power?
Well, the early IMCA reports used to publish this data, but the latter one hadn’t so I put in an FOIA request to the Department of Health for this data. It’s here. So, you know my nerdy number crunching ways, I’ve put the number of IMCA referrals for each year next to the number of a) complaints, and b) legal action, which resulted from an IMCA referral:
|Total number of formal complaints||29||31||54|
|Total number of IMCA referrals||9173||10730||11,899|
|Number of formal complaints as % of total number of referrals||0.32%||0.29%||0.45%|
|Complaints against the local authority||15||19||25|
|Complaints against the health authority||6||6||20|
|Cases where IMCA referral led to application to Court of Protection||8||6||9|
|Number of Court of Protection proceedings initiated by IMCAs as % of total number of referrals||0.09%||0.06%||0.08%|
I don’t know about you, but I find these data bloody terrifying. These legal actions include s39D IMCA referrals. Even if all of these legal proceedings were related to DOLS, can we really honestly believe that there were only 9 instances last year where a) P needed help to exercise his appeal rights (and thus qualified for a s39D IMCA), and b) where P objected to his detention, and thus the IMCA was duty bound to help him apply to court?
It’s not as if the DOLS are working especially well, we see report after report after report raising concerns about the general functioning of the Mental Capacity Act, and yet those best interests decision makers who actually make a referral to an IMCA when they should stand less than a 1% chance of being challenged. So either it’s all going fine in 99% of cases, there are no serious disputes over a person’s welfare (including disputes by the person who is the subject of the best interests decision, who obviously has a right of legal challenge under Article 5 and – in my view – almost certainly has a right of challenge under Article 8 when it comes to the kinds of serious decisions IMCA referrals are there for, cf. Stanev v Bulgaria; X v Finland), or something is going drastically wrong with IMCAs as a safeguard for people’s rights and as an advocate who is supposed to help a person challenge what is being done to them where they object. Answers on a postcard please!
Sorry for the lack of hyperlinks or any deeper analysis… hopefully that will follow when things are less hectic.