Guardianship in England

What happened when the Mental Health Act was amended by the 2007 Act – for the regime of guardianship?

Guardianship is conferred under the Mental Health Act, s8. It is not a power of detention, like a compulsory section under ss 2 or 3 of the Act. It does not turn on incapacity, like acting under the Mental Capacity Act does, in a person’s best interests. But it has very tantalising elements of both of these other frameworks…

The MHA 2007 changed the definition of mental disorder in section 1(2) of the MHA 1983 and removed the separate definitions of ‘mental impairment’, ‘severe mental impairment’ and ‘psychopathic disorder’. The definition of mental disorder changed to “any disorder or disability of the mind”. So one would think that all the orders in the Act, applied to people with learning disabilities and dementia or brain injury. One would be correct for the latter two categories.

However, the MHA 2007 introduced into section 1 MHA 1983 an exclusion for people who have a learning disability. This works by providing that for certain sections of the MHA 1983 (including admission to hospital under section 3 and reception into guardianship under section 7), a person with a learning disability shall not be considered to be suffering from a mental disorder simply as a result of that disability, unless the disability is “associated with abnormally aggressive or seriously irresponsible conduct” on the part of the person concerned.

A new section 1(4) of the MHA 1983 defined learning disability as “a state of arrested or incomplete development of the mind which includes significant impairment of intelligence and social functioning.”

This means that for guardianship to be an option for a person with a learning disability, the above test has to be met, despite the person perhaps clearly having a mental disorder and incapacity putting him or herself at risk….

Purpose of guardianship

  • The purpose of guardianship is to enable patients to receive care in the community where it cannot simply be provided without the use of compulsory powers. It is often used with people who lack the mental capacity to avoid danger or being exploited.
  • It provides a framework, as part of the overall care and treatment plan, for working with a patient to achieve as independent a life as possible.
  • Guardianship applies to patients who are at least 16 years old and who are suffering from a mental disorder of a nature or degree which “warrants reception” into guardianship, and where it is also necessary in the interests of the welfare of the patient or for the protection of others.
  • Section 37 MHA separately allows the courts to appoint a guardian where a person has been charged with a crime. However, most guardians are appointed under section 7 of the MHA, following an application by an Approved Mental Health Professional (AMHP).
  • Guardianship does not make it unlawful for the council to charge for community care services of a residential or non-residential nature. It is an additional regime for intervention, and a gateway through to other existing statutory services, not a separate service in and of itself, outside of the powers to charge, unlike the services for aftercare, known as s117 services.

Statistics from 2010/2011

The number of new Guardianship cases fell by 22% between 2009/10 and 2010/11,from 435 to 339 cases. This is the largest reduction in new cases since 2001/02,the first year analysed in this report. The number of new cases in 2010/11 was 40% lower than in 2001/02 when 561new cases were reported. It is not clear why there has been a fall in the number of Guardianship cases but it is thought to be the Mental Capacity Act Deprivation of Liberty Safeguards and Supervised Community Treatment.

For the fifth consecutive year there was a decrease in the number of continuing Guardianship cases open at the end of the year. 755 cases were open on 31 March 2011,compared with 804 on 31 March 2010 (a drop of 6%) and 951 on 31March 2006 (a drop of 21%).

There are large regional variations in the rates of Guardianship usage: Local Authorities in the North West had the highest rates of new cases at 13 per 1,000,000 of the population, whereas the East Midlands, London, the East and South East had the lowest rates at 2,3,3 and 3 per 1,000,000 respectively. The North West also had the largest rate of continuing cases with 29 per 1,000,000 in the population. In comparison, London, the East, the East Midlands and South East with rates of 4,7,10 and 10 per 1,000,000 respectively.

Variations in the rate of Guardianship usage are also noticeable across different types of authorities. Metropolitan and Unitary authorities had 20 and 19 continuing cases per 1,000,000 in the population respectively, whist Outer and Inner London had 3 and 6 per 1,000,000 respectively.

These variations in Guardianship usage are also very apparent at Local Authority level. More than half of continuing cases were dealt with by just 16% of local Authorities in England (24 out of 152 authorities). Twelve local Authorities in the London region reported no cases of Guardianship.

Only 8 others in the country reported no cases.

What happened when the Act was amended by the 2007 Act?

The MHA 2007 changed the definition of mental disorder in section 1(2) of the MHA 1983 and removed the separate definitions of ‘mental impairment’, ‘severe mental impairment’ and ‘psychopathic disorder’. The definition of mental disorder changed to “any disorder or disability of the mind”. So one would think that all the orders applied to people with learning disabilities and dementia or brain injury. One would be correct for the latter two categories.

However, the MHA 2007 introduced into section 1 MHA 1983 an exclusion for people who have a learning disability. This works by providing that for certain sections of the MHA 1983 (including admission to hospital under section 3 and reception into guardianship under section 7), a person with a learning disability shall not be considered to be suffering from a mental disorder simply as a result of that disability, unless the disability is “associated with abnormally aggressive or seriously irresponsible conduct” on the part of the person concerned.

A new section 1(4) of the MHA 1983 defined learning disability as “a state of arrested or incomplete development of the mind which includes significant impairment of intelligence and social functioning.”

 

The MHA 2007 changes to Guardianship

 

 

  • Under the new Act, a person with learning disabilities, whilst mentally disordered, because of the widening of the definition, still won’t be able to ‘qualify’ for guardianship, unless the disability is associated with abnormally aggressive or seriously irresponsible conduct, on his part.
  • In my view a person can be regarded as seriously irresponsible due to their disability, even if they are being so well looked after that nothing is currently being given a chance to happen. But the caselaw under the old law is less constructive…

The guardian cannot authorise medical treatment, and has no control over a person’s money or property. It is an offence to mistreat or wilfully neglect a person subject to a guardianship order. A guardianship order initially lasts for six months and can be renewed for a further six months and then annually.

Under other MHA 2007 changes, a Guardian now has power to:

  • Convey P to where s/he doesn’t want to go, using force if necessary (s.18(7) and s.137 MHA)
  • To insist they remain at that place (s.8(1)(a))
  • Return P to that place if they leave without authority, using force if necessary or the help of the police (s.18(4), s.137)
  • Make P see professionals who may consider treatment if the person is incapacitated
  • Take P to a place where they could be given medical treatment under MCA (s.8(1)(b) MHA and s.5 and s.6 MCA).

Applying for guardianship

Guardianship can be arranged if an Approved Mental Health Practitioner or the person’s nearest relative applies for it, and if two doctors agree to it. The application is made to the local social services authority, and the council is often appointed as the guardian acting through a named social worker; however, any person who is willing to act could be appointed – that is private guardianship.

Before applying for a person to be placed under guardianship, an AMHP must consult the person’s nearest relative, as long as this is reasonably practicable and would not involve undesirable delay. A guardianship order cannot proceed if the nearest relative objects to it unless their powers are transferred to someone else under s29 MHA.

 

The nearest relative is generally the person who comes first in the following list: husband, wife or civil partner, son or daughter, father or mother, brother or sister, grandparent, grandchild, uncle or aunt, nephew or niece, or someone (not a relative) the person has lived with for at least the last five years. Healthcare professionals and the person under a guardianship order can apply to a court to change the designated nearest relative under certain circumstances. These could include trying to discharge someone without sufficient regard for their welfare or the welfare of others, unreasonably objecting to a guardianship order or a section 3, or being unable to fulfill this role due to illness.

Objecting to a guardianship order

As we have noted, the person concerned, if learning disabled, must be abnormally aggressive or seriously irresponsible. There is no indication as to what ‘warrants reception’ should mean. Guardianship must also be necessary for the welfare of the patient or for the protection of themselves or of other people.

The patient or nearest relative can appeal to a First-tier Tribunal, or Mental Health Tribunal in Wales, if they wish to challenge the guardianship order. The subject can do this himself if he is able. If the guardianship has been taken because the NR was not available, for instance, to be consulted, and the nearest relative does not believe the eligibility trigger factors exist, he or she can make formal his objection to the guardianship order by using the discharge powers. If he has been displaced, he can apply to the tribunal instead.

The tribunal can decide to either end the guardianship order or not to end it, or they can make certain other orders. The actual use by the guardian of the express powers within guardianship, though, can only be challenged by way of judicial review, where the scope of challenge will be a supervisory scrutiny, not an appellate one. The latest case, Blackburn with Darwen says that not even the CoP has jurisdiction over the question of residence….

The Mental Health (Hospital, Guardianship and Treatment) (England) Regulations 2008

(3) Upon a patient becoming subject to guardianship under the Act, the responsible local social services authority shall take such steps as are reasonably practicable to cause to be informed both the patient and the person (if any) appearing to the authority to be the patient’s nearest relative of the rights referred to in paragraph (4).

(4) Those rights are—

(a) the patient’s rights under section 66 (applications to tribunals),

(b) the nearest relative’s right, as the case may be, to—

(i) discharge the patient under section 23 (discharge of patients), or

(ii) make an application under section 69 (application to tribunals concerning patients subject to hospital and guardianship orders where the patient is, or is treated as being, subject to guardianship under section 37).

(5) Where information referred to in paragraph (1)(d), (g) or (n), or in paragraph (3) is to be given to the patient, it shall be given both orally and in writing.

(6) Where information referred to in paragraph (1) is to be given to the person appearing to be the patient’s nearest relative, it shall be given in writing.

(7) Where information referred to in paragraph (2) is to be given to the private guardian, it shall be given in writing.

 

Displacement/substitution of the nearest relative

Applications to the County Court may be made by (s29(2)):

  • Any relative of the person;
  • Any other individual with whom the person resides or, if already an inpatient, with whom they were residing before admission to hospital;
  • An Approved Mental Health Professional
  • The patient

Any admission to hospital already made under S2 continues until the Court decides the application. For those patients detained under s2, provided the application is made to the County Court within the 28 day period, the person can continue to be detained under s2 until the question of the Nearest Relative’s “unreasonableness” has been decided by the Court. (S29(4)(a).

Applications may be made upon the following grounds (s29(3)):

  • The person has no Nearest Relative or it is not reasonably practicable to discover whether the person has one or who it is;
  • The Nearest Relative is incapable of acting as such by reason of mental disorder or other illness;
  • The Nearest Relative unreasonably objects to the making of an application for admission for treatment (s3) or guardianship (s7);
  • The Nearest Relative has exercised or is likely to exercise the right to discharge the person without due regard to their health or wellbeing or the safety of the public.
  • The Nearest Relative is otherwise not a suitable person to act as such (see Code of Practice 8.13 for discussion of “suitability”).

Relationship between guardianship and the old system of declaratory relief

The relationship between guardianship and declaratory relief was defined by the statutory regime governing guardianship itself. Declaratory relief emerged from the inherent jurisdiction of the court in common law, and tended to be thought suitable only if there was no other statutory remedy which could be used effectively for the situation. So it was important first to determine whether the perceived risks or difficulties could be addressed by way of guardianship.

The first problem was the question of whether the person was suffering from mental impairment within the meaning of the Act as it then was, requiring a finding of either abnormally aggressive or seriously irresponsible conduct – these were interpreted tightly: very many people who lacked capacity did not fall within that more confined definition of mental impairment. Case law suggested for instance that it was not seriously irresponsible for a person with a mental age of a child to wish to live with her parents even if they were regarded as abusing her.

The second problem was that guardianship only gave the local authority a limited amount of statutory powers – typically to decide where that person should reside and to ensure that professionals had access to that person. Many issues in the life of a person who lacks capacity – particularly restraint and contact – went beyond these statutory alternatives available under the Act and in those cases it was considered necessary to turn to the declaratory jurisdiction.

Another problem was that guardianship did not appear to give a power to take and convey a person to a particular place so if one had a person in hospital who was refusing to go to a residential care home it was thought that guardianship would not give one the necessary power to make that move. I think that this was rubbish, but it was never accepted by mental health professionals.

Another problem was that often the nearest relative of the relevant individual would not give consent to the making for an application for guardianship and in those cases it was necessary to make an application to displace him or her under the Mental Health Act (s29).

Another was that it used to say in the Code of Practice that a person needed to consent to guardianship, as there were no enforcement powers. This was plainly wrong, and the Code was changed in about 1999 to say that consent was desirable, but only so far as a person had capacity – highlighting that the real purpose of guardianship was a framework for compulsory intervention, regardless of incapacity.

The debate over the scope of the powers given…

However, an application for Guardianship was not, and is not, dependent on a belief as to incapacity on any specific issue.

What one could actually do to or for or with someone, under it, might well turn on that aspect, especially where the person is acquiescent, although lacking any insight into their situation. Incapacity would justify further intervention; acquiescence, if uninformed, could not be seen as consent to any proposed measure.

Lawyers disagreed about the extent of the powers conferred by s8 on the local authority. One can see the judgment of the Court of Appeal in the case of Re F as delineating a clear and distinct limit to the local authority’s powers. Others looking at an earlier first instance case called Kent CC ex p Marston were inclined to the view that once a local authority had assumed guardianship over an individual, it would have more extensive powers drawn from the common law of necessity at that time – effectively, a sort of statutory best interests power.

So, for example, if an issue arose about a power to take and convey a person to a place where the local authority had said that they should reside the guardian would have that additional power by virtue of the necessity to manage the person under guardianship. Ditto with restraint, so long as it was proportionate and not – in the words of the judge in Marston – totalitarian.

This debate could still be of relevance as there is no clear law on the extent to which the MCA has superseded the common law defence of necessity, in fields where it already may have been incorporated into statute.

What was the significance of this?

Whether or not a person is lacking capacity, but is clearly adamantly opposed to one’s proposals, guardianship may not be sufficiently clear to justify assertive intervention. The clearer the objection, albeit one is incapacitated, the harder the issue of proportionality will be to determine, and if one has capacity, then it would be clear that the powers of the Act would be strictly limited, because there could be no Best Interests overlay….

(Taken from Marston in 1997) – “True, as the judge below accepted, Section 8 of the 1983 Act, … does not confer upon the guardian any express powers or duties to act in the best interests of the patient. It can be seen in this regard to present a marked contrast, no doubt an intended contrast, with the legislative regime which it replaced. … But it seems to me, as it seemed to Owen J below, implicit in Section 7 of the Act that the guardian is entitled in certain respects to act so as to promote the welfare of the patient. Owen J recognised, as I would too, that the precise extent and consequence of such an implicit duty to act for the welfare of the patient is not clear. I envisage that that may well need clarification at some future date. For example, if there were good reason to suppose that an authority was acting in some totalitarian fashion or was not properly having regard to the interests of its patients, then it seems to me clear that someone would have the standing, would have a sufficient interest to bring the case before the court so that the matter could be properly investigated and the true extent of the authority’s discretion be clarified.”

Comparison of the current regime for best interests decision making, under the MCA, with guardianship

  • Guardianship is ‘free’, in so far as it is merely an administrative discretionary process, unless a council needs to displace a nearest relative via the Court. The MCA also allows decisions up to and including restriction of liberty to be made, without going to court, as well.
  • Guardianship depends on a clinician agreeing that someone has a mental disorder of a kind linked with abnormally aggressive or seriously irresponsible conduct. The MCA does not have such a high threshold. The MCA requires a reasonable belief in incapacity with a need for a clinically qualified opinion only where certain types of applications to court are required (ie DoL). Within guardianship, that view can be challenged, though, via the tribunal, but also within an appeal from a court order displacing a nearest relative.
  • Guardianship lasts for a finite time but can be renewed annually. The s5 MCA protection against legal redress, is available in a context and issue specific way for anyone making a decision to intervene, and so is ongoing.
  • Apart from the s7 threshold assessment test, guardianship provides no procedural rights for the individual subject of the application regardless of their capacity (apart from recent changes to allow the person to object about their own nearest relative’s identity). The MCA requires best interests care planning for incapacitated people after a decision has been taken about that person’s incapacity, involving actual engagement with them.

 

Guardianship and its effect on other people…

  • Guardianship does not give a council any access to an injunction backed with a power of arrest – as before, an application to court – now the Court of Protection – would be required.
  • Guardianship cannot be used to deny contact to someone with whom a capacitated guardian-ed patient positively wishes to have contact, but neither can the MCA.
  • It probably makes legitimate the prevention of access by someone to an incapacitatedone. The position is not clear under the MCA: saying ‘no’ to letting someone in to see an incapacitated person is not touching the person, as such, protected within the terms of s5; but it can be challenged by the other person by way of an application to the court for a declaration that it would be in the best interests of the person to be visited. It would be harder to challenge the legitimacy of the guardian’s actions, if the proposed visitee was under guardianship, because judicial review offers the only route in, and there’s a high threshold for that.

 

A.M.H.P thinking…where there’s a choice of regime between MHA and guardianship or intervention under MCA principles

4.4 Before it is decided that admission to hospital is necessary, consideration must be given to whether there are alternative means of providing the care and treatment which the patient requires.

 

This includes consideration of whether there might be other effective forms of care or treatment which the patient would be willing to accept, and of whether guardianship would be appropriate instead.

 

4.5 In all cases, consideration must be given to:

  • the patient’s wishes and view of their own needs;
  • the patient’s age and physical health;
  • any past wishes or feelings expressed by the patient;
  • the patient’s cultural background;
  • the patient’s social and family circumstances;
  • the impact that any future deterioration or lack of improvement in the patient’s condition would have on their children, other relatives or carers, especially those living with the patient, including an assessment of these people’s ability and willingness to cope; and
  • the effect on the patient, and those close to the patient, of a decision to admit, or not to admit, under the Act.

 

The government’s finalised MHA Code, on choosing guardianship over using straight MCA principles, or DoLS

26.12 …guardianship may still be appropriate in such cases if:

  • there are other reasons – unconnected to the move to residential care – to think that the patient might benefit from the attention and authority of a guardian; (- i.e. heavy-duty social work or care co-ordination)
  • there is a particular need to have explicit statutory authority for the patient to be returned to the place where the patient is to live should they go absent; (because otherwise the police will get fed up or not bother?)
  • it is thought to be important that decisions about where the patient is to live are placed in the hands of a single person or authority – for example, where there have been long-running or particularly difficult disputes about where the person should live.

 

(and this even more so, now, because the courts have indicated that welfare deputyship is NOT something that they will be willing to dole out willy nilly, just because there have been safeguarding ructions or long running disagreements.)

 

Choosing between formal guardianship, and reliance on the MCA for certain steps

Richard Jones has pointed out that there are good person – centred reasons for using guardianship, when one could either use it OR the MCA best interests power to move a person to another home:

 

  • The responsible social services authority must provide for visits to patients under guardianship, not less than every three months; and one such visit per year must be by a doctor.
  • The nearest relative has protective powers in relation to guardianship, whereas that person has no special role under the MCA.
  • He points out that the specific legal authority given to the authorities to convey patients under guardianship and to return them to their place of required residence are good ‘public body’ based reasons for using guardianship too!

When not to use guardianship…

26.13 However, it will not always be best to use guardianship as the way of deciding where patients who lack capacity to decide for themselves must live. In cases which raise unusual issues, or where guardianship is being considered in the interests of the patient’s welfare and there are finely balanced arguments about where the patient should live, it may be preferable instead to seek a best interests decision from the Court of Protection under the MCA.

Belinda’s comment: better for the client, in terms of legal scrutiny, because the Court of Protection’s judgment as to whether something is or is not in the best interests of a person is a judgment on the merits, not merely on a judicial review of the authority’s view of the scope of guardianship! But not better for the authority, obviously, as the Court of Protection will have to be satisfied of the proportionality of the proposals before declaring the proposal to be in the person’s best interests…

And NB especially if a tenancy agreement is involved, because to my mind, it is clear that one cannot use guardianship to force an incapacitated person to take a tenancy! Guardianship is not a power to make contracts in the patient’s name….

The government’s view, in the MHA code of practice, on the limitations on guardianship

26.29 The power to take or return patients to the place they are required to live

may be used, for example, to discourage them from:

  • living somewhere the guardian considers unsuitable;
  • breaking off contact with services;
  • leaving the area before proper arrangements can be made; or
  • sleeping rough.

 

But it may not be used to restrict their freedom to come and go so much that they are effectively being detained.

 

26.30 The power to require patients to reside in a particular place may not be used to require them to live in a situation in which they are deprived of liberty, unless that is authorised separately under the MCA. That authorisation will only be possible if the patient lacks capacity to decide where to live.

 

If deprivation of liberty is authorised under the MCA, the LSSA should consider whether guardianship remains necessary, bearing in mind the guidance earlier in this chapter. ”

 

The eligibility assessment for the DoL Safeguards….

…relates specifically to the relevant person’s status, or potential status, under the Mental Health Act 1983 – it confirms whether the relevant person should be covered by that Act rather than the deprivation of liberty safeguards under the Mental Capacity Act 1983.

  • It must be confirmed that person is not detained under the MHA 1983 or the authorisation – if granted – would not be inconsistent with an obligation placed on them under the Mental Health Act 1983, such as a requirement for them to live somewhere else, under:
  • A Leave of absence from detention under MHA
  • Guardianship
  • Supervised community treatment order
  • Conditional discharge

 

DoLS vs guardianship

26.32 …Nor does guardianship [automatically] prevent an authorisation being granted under the deprivation of liberty safeguards in the MCA, if the person needs to be detained in a hospital in their best interests in order to receive care and treatment, so long as it would not be inconsistent with the guardian’s decision about where the patient should live.

 

26.33 Otherwise, guardianship should not be used to require a patient to reside in a hospital, except where it is necessary for a very short time in order to provide shelter while accommodation in the community is being arranged.

While the reception of a patient into guardianship does not affect the continued authority of an attorney or deputy appointed under the MCA, such attorneys and deputies will not be able to take decisions about where a person subject to guardianship is to reside, nor take other decisions which conflict with those of a guardian [within their powers]. This is because the guardian’s powers are expressly conferred to the exclusion of all others, under the MH Act.

 

Ineligible for DOLS…

A person who is ineligible for a DOL by reason of being an objector – incapacitated or otherwise – to going into hospital for mental health treatment, without any deputy or attorney to consent to admission under s131 MHA, and/or for treatment for them, will have to be sectioned, if the situation demands detention. There is no alternative for them. Guardianship requiring the person to reside in hospital for the same purpose (the treatment being given under the MCA) would be an abuse of the principle that objectors should have access to full MHA rights.

 

Guardianship may be a solution if the person would accept the treatment and restriction of liberty in a non-hospital setting, however. But once that was done, it would be more complicated to turn the regime into a DoLS order, if the person deteriorated and needed to be moved.

 

Guardianship vs DoLs

Just suppose for a moment that what was to be done to a patient under guardianship under these extended powers had to be seen as a deprivation of liberty, on the facts.

 

Even so, it could still be seen as lawful deprivation of liberty under ECtHR principles:

  • It would be done under ‘a procedure prescribed by law’ (complying with art 5(1) ECHR)
  • s.7 MHA grounds (assessment by a doctor) meet substantive and procedural requirements for lawful detention of those of unsound mind: Winterwerp v Netherlands
  • The patient has access to an MHRT to challenge the lawfulness of applying the regime to him or her – and an advocate to help, under the new MHA rules.

 

So perhaps the government’s focus on the limits to guardianship is unnecessary. And if that were the case, then guardianship would be the answer to the perceived need to deprive some people of their liberty in the unregistered non-care home supported living sector, without doing murder to the distinction between restriction and deprivation of liberty.

 

The most recent case on guardianship – Re C / C v Blackburn and Darwen Borough Council (2011) EWHC 3321 (COP)

Court of Protection proceedings were brought to determine whether the accommodation of a 45 year old man with an acquired brain injury in a local authority care home amounted to a deprivation of his liberty.

In February 2000, when living in a hostel, having already had a brain injury as a child, Mr C fell off a roof and suffered a severe brain injury for which he required surgery, following which he developed epilepsy. He lived in warden-controlled accommodation until moving in February 2008 to a rehabilitation unit for people with brain injuries.

In May 2008 he was detained for five weeks under s.3 MHA after attempting to kill himself by strangulation. In June 2008, he moved into another unit as part of a community integration programme, before returning to the rehabilitation unit in December 2008. There he made a second, similar suicide attempt and was again detained under the MHA. In April 2009, he bought a large knife and called an ambulance, saying that he was going to kill himself.

In May 2009, he made several further attempts to harm himself, including by self-strangulation. In June 2009, Mr C’s MHA detention came to an end and in October 2009, he went abroad for a month. On his return in December 2009, Mr C was admitted to the care home where he has now lived for two years.

In June 2010, the LA made an application for guardianship, following which Mr C made a further suicide attempt – he was made subject to the guardianship of the LA for 6 months under s.7 MHA.

In January 2011, the police were called after Mr C had kicked down a door when trying to leave the care home. As a result, assessments were carried out and a standard DOLS authorisation was issued on 23 January 2011 for 12 months. This was reviewed in May 2011, and some less stringent controls on Mr C’s visits to his family were substituted. In the same month there was an incident of aggression by Mr C towards a female staff member.

On 27 June 2011, the MHA guardianship was renewed for one year. Mr C’s appeal to the First Tier Tribunal to discharge the guardianship was rejected on 31 October 2011.

What was the regime in the care home? And why was he there, as opposed to living independently?

He was subject to 1:1 supervision both inside and outside the home. C stated that he was unhappy in the care home and wished to leave. The low staff ratios meant that he had to put up a strong fight to be taken out or let out with supervision.

The local authority argued that C was not being deprived of his liberty despite his unhappiness at being in the care home. The OS made submissions on C’s behalf that the standard authorisation for his accommodation was flawed because it was not specific about what was and what was not permitted.

The Trust said it would review the possibility of increased funding to enable Mr C to spend more time out of the care home under supervision. It did not believe that he required further rehabilitation and opposed the prospect of a move to less protective accommodation, on clinical grounds. It believed that further assessment proposed would unsettle Mr C and exacerbate his disturbance.

Firstly, he was not ineligible for DoLS merely by virtue of being under guardianship.

In consequence of paragraph 3, the person will be ineligible if an authorised course of action is not in accordance with a requirement of the guardianship regime. So, Mr C having been required to reside at the care home by the LA as his guardian, the MCA cannot be used to authorise a deprivation of liberty elsewhere.

As this is not the effect of the authorisation in this case, which seeks to keep him at the care home, paragraph 3 does not take him outside the regime.

The result – was that he was restricted only, and outside of the CoP jurisdiction

Jackson J held that, on a narrow balance, C was subject to a restriction on his liberty rather than being deprived of it.

The judge relied on the decision of the Court of Appeal in Cheshire West & Chester Council v P [2011] EWCA Civ 1257, in particular the difference which it makes if the person has an alternative home which is realistically available.

Jackson J concluded that the Court of Protection does not have jurisdiction to determine a person’s place of residence where a guardianship order is in place.

  • Section 8(1)(a) of the MHA provides that the guardian shall have the power to require the patient to reside at a place specified by the authority or person named as guardian. The judge found that the wording in section 8(1) ‘to the exclusion of any other person’ was broad enough to include the Court of Protection.
  • Does this mean excluded with regard to any consideration of whether the regime albeit restriction is in his best interests? Probably not: “The Court of Protection cannot discharge the guardianship when a statutory procedure for this exists, and it cannot entertain an application to determine place of residence while the guardianship is in force.”
  • “The clear intention of the section is to make the three specified decisions the exclusive responsibility of the guardian. That power can only be removed by the discharge of the guardianship under s.72 or by means of judicial review, to the extent that it is available.….”

 

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