Eleanor Roosevelt, 1958

'Where, after all, do universal human rights begin? In small places, close to home -- so close and so small that they cannot be seen on any map of the world. Yet they are the world of the individual person... Unless these rights have meaning there, they have little meaning anywhere. Without concerted citizen action to uphold them close to home, we shall look in vain for progress in the larger world.' Eleanor Roosevelt, 1958

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Thursday, 21 March 2013

How often do IMCAs challenge decision makers? Not very.

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:

2009/10 2010/11 2011/12
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.


7 comments:

  1. A member of my family is on his 5th IMCA?

    Question, Why does a person who has family who have been supportive in the entire duration of his incarceration in a care home against his will who had capacity when he left home deemed not to have capacity there after, and now has capacity (confused) have his 5th IMCA when the law states that only if that person has no family or representative should an IMCA be involved?

    What confuses all the positive professionals that are working today with my family member and involving us is that my local authority are adamant in keeping his family away?

    This is even more baffling to all the good ethical professionals working with him.

    Who is responsible for this brief? Is it the ASCT? or does this irrational order come from the top of the chain.

    Have they something to hide? Could it be that guidelines have not been followed and that they have not adhered to the rules

    Trying to keep family members away only confirms their failure and how much financially has it cost this local authority in the long term to de-humanise and violate my family members fundamental human right to seek help.





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    Replies
    1. Hi there - most IMCA referrals are for people who don't have family or friends, but if a person is deprived of their liberty then they might have an IMCA whose role is to support them (and/or their family) to understand and exercise their rights.

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    2. Lucy,

      Thank you for your response.

      Yes I understand. Only one of the 4 was willing to talk to us.....He went out of his way to contact me. The other 4 have never attempted to make contact...when I have tried they absolutely refused to engage with us.

      I really must refrain from saying too much as it is likely we will end up in the courts...

      This has been one's absolute nightmare... A very unforgiving nightmare....



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    3. Lucy,

      Sorry, I failed to mention My family member is not deprived of his liberty, though he was only once... and continuous attempts where made by the local authority to do so on several occasions, but they failed.






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    4. My comments above in fact are not correct. I have in error stated that my family member is not deprived of his liberty when in fact he is.

      Please except my apology..

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  2. Sorry it's been a nightmare, and I hope things improve. Thanks also for your caution around not posting stuff about possible court cases - not everyone is so careful (those comments end up in the bin). It sounds really tough, good luck with it.

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  3. Hi anonymous,

    don't know where you are with your family member; but I too have a serious issue with being disregarded as an 'appropriate person to consult.'

    Maybe....somehow........we can compare notes away from the blog board?

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