In the seventh part of our reflective blog series, we look at some of the new statutory roles introduced within the MCA Code of Practice.
In the Code of Practice, the role of the Appropriate Person within the new LPS framework is quite similar to the Relevant Person’s Representative under DoLS. It is an unpaid role assigned by the Responsible Body, and could be a friend, family member, someone with Lasting Power of Attorney, or an assigned deputy.
The Appropriate Person is responsible for objectively representing the thoughts and feelings of the individual under LPS authorisation, while also supporting the individual to understand the process and take part as much as they are able. This means that the Appropriate Person must have a basic understanding of the LPS process so that they can effectively include, enable and advocate under this authorisation.
It is important to note here that the Appropriate Person has a legal obligation to inform the individual under LPS authorisation of their Rights, and to support and uphold any objection the individual may have, supporting their voice. This is a completely objective process, that must not be influenced by the Appropriate Person’s view of whether the care, treatment and/or placement is necessary or in the individual’s Best Interest.
Remember: it is a legal Right for the individual under LPS authorisation to be heard and supported in a person-centred approach that adheres to the five principles of the Mental Capacity Act. It does not necessarily bear any form of judgement on the placement or the support being given, but rather supports the individual’s right to voice if they are unhappy and wish for something else.
It should be noted, just as with DoLS, it can sometimes be quite difficult to determine what constitutes an objection, as objections can take many forms. Just as with DoLS, the objection itself does not have to be rational or logical in order to warrant being voiced by the Appropriate Person.
If there is any doubt at all about the process, or about an objection, the Appropriate Person should consult with the Responsible Body. The Appropriate Person can also be assigned an Independent Mental Capacity Advocate (IMCA) to support their understanding and application of the role.
Independent Mental Capacity Advocate (IMCA)
An IMCA is a paid statutory role that was formed as a result of the Mental Capacity Act (2005). In the case of the new LPS process, the IMCA’s role is to objectively support the individual throughout the process, upholding their thoughts and wishes, while further informing them of their Rights. In addition, as with an Appropriate Person, they are legally obliged to support and uphold any form of objection.
An IMCA must be instructed by a professional who will direct them to work with an individual throughout the LPS authorisation period, serious medical treatment or accommodation. In the case of the LPS, an IMCA is assigned if no other Appropriate Person is identified and/or suitable for the role. They can also be assigned to help support an Appropriate Person in their understanding of the LPS process.
It should be noted here that an IMCA cannot go beyond this very clear specific advocacy role. Nor can they be instructed to act by a non-professional. Any other advocacy needs must be referred separately. This is due to the requirements of the various relevant Acts, as well as funding and protection of professional practice.
There is arguably a significant benefit and responsibility to assigning an IMCA to initially support the Appropriate Person, or indeed the Individual. The LPS process is a complex legal protection that many people will be unfamiliar with, or may lack confidence in applying in practice. Trained IMCAs therefore have a vital role to play in the operation of LPS under the new Code of Practice, and will play an important role going forward in ensuring that the process works as intended, and serves to effectively support Rights.
Approved Mental Capacity Professional (AMCP)
An AMCP is a trained professional with role similar to that of a Best Interest Assessor – though with a much more focused role, taking on complex cases or situations where arrangements are being carried out in an independent setting, such as Independent Hospital. The purpose of the AMCP is to provide an extra layer of safeguarding and professional scrutiny – and to also provide an experienced external perspective.
The role of an AMCP in a pre-authorisation review requires critical analysis of all relevant assessments and consultation documents, considering whether authorisation conditions are met in terms of being proportionate, necessary and appropriate. This may require further meetings with the individual in question, and may also require consulting other relevant parties again. The AMCP should then report this information back to the Responsible Body, advising whether authorisation conditions are met and can propose less restrictive options that could be suitable to the individual and situation.
There is a responsibility upon the local authority to approve AMCPs to work within their location, as well as to provide initial training. After which they must complete 18 hours of training per year to maintain their role. The local authority must ensure there are enough AMCPs to meet needs within their authority, which includes those for which it is not the Responsible Body.
Importance of education and training
In my experience, the understanding of statutory roles can be quite poor. This can lead to misinterpretations of the law, safeguarding issues and unjustified restriction of Rights.
Yet as the new Code of Practice makes clear, this is a statutory process designed to safeguard and protect, not only the individual, but also those teams providing support. Without these safeguards in place, we are all liable to prosecution.
In order to avoid these potential pitfalls, it is absolutely essential that professionals are aware of the Mental Capacity Act, the new LPS process, and how it works. Training is a vital part of this, and can make a big difference to all involved. I would therefore strongly encourage any professional to ask questions of colleagues and actively seek out further education and support to ensure we protect Rights, promote best practice and provided person-centred care.