Same old same old: are supervisory bodies actually reading s39D?

We are now into the fifth year of the DOLS, and it seems that a third of supervisory bodies may not yet have read and digested s39D Mental Capacity Act 2005.  Let me spell it out, literally.  Supervisory bodies MUST make a referral to an Independent Mental Capacity Advocate (IMCA) under s39D where a person has an unpaid representative and either the detainee or the representative requests one or (and this is the important bit) the supervisory body has reason to believe one or more of the following:

  • (a) that, without the help of an advocate, P and R would be unable to exercise one or both of the relevant rights;
  • (b) that P and R have each failed to exercise a relevant right when it would have been reasonable to exercise it;
  • (c) that P and R are each unlikely to exercise a relevant right when it would be reasonable to exercise it.

The Department of Health has published its Sixth report on the IMCA service (2012-13).  As is traditional, I put the data on the number of IMCA referrals under s39D for each local authority into a spreadsheet and matched it up with the number of authorisations that local authority had made under the DoLS.  This doesn’t even take into account authorisations in relation to hospitals, and still the situation is dire.  Out of 146 local authorities for whom I had data*, a whopping 46 had not made a single referral under s39D.  Some of these had as many as 263 authorisations.  A local authority with 305 authorisations had made one s39D referral.


I ask you: do the supervisory bodies in these areas seriously believe that the people they are detaining under the DoLS could appeal to the Court of Protection without assistance from an IMCA?  Really?  They think that the detainee lacks the capacity to decide where they should be accommodated, but they would understand the finer details of the DoLS and how to initiate a case in the Court of Protection?  As Tim Keilty would put it, there’s a rabbit off somewhere…

I’ve gone on ad nauseam about the importance of s39D IMCAs to ensuring that people’s Article 5(4) rights to ‘take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful’.  This contention is reinforced by the finding in Neary v LB Hillingdon that failure to make a timely s39D referral contributed to a violation of Stephen Neary’s Article 5(4) rights, and the reminder that the state must ‘ensure that a person deprived of liberty is not only entitled but enabled to have the lawfulness of his detention reviewed speedily by a court.’  This proactive duty to ensure a person has the assistance they need to challenge their detention before a court is reinforced by the recent ruling in MH v UK (discussed here).

I suspect that (some) supervisory bodies are picking and choosing which bits of s39D they are applying.  Perhaps they offer a person an IMCA, or write them a letter telling them that they are entitled to one, and then make a referral if they request one.  But this isn’t all that the statute requires.  The statute requires that the supervisory body make their own assessment of whether P and R are able to exercise the relevant rights (ie. to request a review or take the case to the Court of Protection) without the assistance of an IMCA.  It should be obvious really that a person who struggles to understand their rights (and thus needs an IMCA) will struggle to understand what an IMCA does and make a request when appropriate.  Relying on people to request an IMCA is basically expecting people to self-assess their understanding of the DoLS.

There is also an overarching duty upon supervisory bodies (under the Human Rights Act 1998) to exercise their discretion to make an IMCA referral in accordance with Article 5(4).  I would interpret that to mean that if you’ve got a scenario where P is objecting to his detention but the unpaid representative isn’t, you’ve got a duty to ensure that P has the assistance he needs to challenge his detention without the representative’s help.  You could either appoint a paid representative who will help him to appeal (as in this case), or you could make a referral under s39D to an IMCA who is legally obliged to help him to appeal (s39D(8)).  That doesn’t mean the IMCA themselves has to apply to Court, they just have to make sure that P has the resources he needs (ie. a solicitor who knows about DoLS) to do so.

I don’t know what the answer to this problem is.  We’ve come across it year upon year upon year.  Perhaps the Department of Health should issue a circular to local authorities reminding them of what s39D actually says, and reiterating the message of MH v UK.  Perhaps CQC should make contact with supervisory bodies with very low rates of 39D referral and ask them what’s going on.  Perhaps the Local Government Association should flag it up.  Perhaps IMCA providers who haven’t received many (or any) s39D referrals should take steps to remind their local supervisory bodies of what s39D actually says.  Perhaps ADASS could send out a letter to directors of adult social services reminding them to ensure that detainee’s Article 5(4) rights are actually being protected in the way the statute envisioned.  There are steps that could be taken to improve this, I hope somebody does.

*Some didn’t return data, and some appear to be jointly commissioning IMCAs, so you can’t look at their individual referral pattern.

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One thought on “Same old same old: are supervisory bodies actually reading s39D?

  1. Pingback: HoLMCA: What the Recommendations mean for my clients | Jess Flanagan: Legally Blog

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