I was called into one of the CMHT (Community Mental Health Team) meetings last week. It was a bit of a surprise. We don’t tend to go into other peoples’ meetings. It is almost like entering an alternate universe. People have the same roles and even tend to sit in the same places around the table – but they have biscuits in their meetings..
Anyway, the reason for my calling was that the team had decided that they felt they wanted me (as an Approved Social Worker) to make an application for Guardianship for one of the patients in their area – they don’t have an ASW in their team and caught me as I was hobbling around the office (fell over while running across the road earlier in the week – nothing serious, lots of bruising and much self-pity).
Taking a few notes, I went on my way, nodding sagely – before grabbing the only other ASW in the office to consult with her about procedures for a Guardianship application. She chuckled and we both headed for the books for a while.
We had studied about Guardianship applications on the training that I undertook and there was a special part of my law exam devoted to them but they are, or so I’m told, quite rare.
Partly because there aren’t many teeth to the powers.
It was also important to try and separate what role the new Mental Capacity Act would play. Luckily, the shiny new ‘Code of Practice for the Mental Capacity Act (2005) that had been sitting on my desk (well, on top of my computer actually) came into its own.
But first I turned to the Mental Health Act (1983) to check that Guardianship would actually do what it needed to do in this case.
I will present this in three parts – namely, the scope of the Mental Health Act, the scope of the Mental Capacity Act and then look at the respective Codes of Practice, commentary and possibly case law to see how they help and have helped. This is a situation though, that is currently ongoing – so no firm decision has actually been made as of today. I just wanted to take through my considerations in ‘real time’!
(I just want to make it clear that I have changed the details here for the sake of confidentiality. I believe that generally, the same issues exist in the actual situation that I’m working with)
A has Dementia with Lewy Bodies. She lives in a residential home. Her condition and mental state fluctuate and when she is unwell she leaves the home to go and stay with her ex-husband (who was known to be abusive during their marriage – in fact, those were the grounds for divorce). When asked to return she will refuse but when she does return she is in extreme emotional distress and showing signs of physical neglect and possible abuse. We are looking for a way to ensure that she does not visit her ex-husband. During her better spells she has no wish to ever see him again – but when she is there she cannot be persuaded to leave. Her husband is no real help in this regard.
Firstly, if we are to consider Guardianship, we need to ensure that the basic criteria are potentially met, namely that there is a mental disorder in one of the four specified categories named in the current Act (Mental Illness, Severe Mental Impairment, Mental Impairment or Psychotic Disorder) that is of a nature and degree to warrant the application and that it would be in the best interests of A’s welfare to make the application.
Well, the circumstances can indicate that both of these conditions are met. A has a mental illness and if the Guardianship is deemed to be the most appropriate decision to make in relation to the Mental Capacity Act, it will absolutely be a decision made with A’s best interests being taken into account.
So assuming these conditions being met, we have to consider what the purpose of the Guardianship would be and what it would be able to achieve in these circumstances.
Under Section 7 of the Mental Health Act
the Guardian, and only the Guardian her/himself, has the power to:
- require the person to live at a particular place
- require the person to go to specific places at specific times for the purpose of:
- medical treatment
- require that a doctor, Approved Social Worker, or other specified person must be given access to the person under Guardianship.
So we were looking at the first part of this. Requiring that someone stay in a specific place. She already lives there though – and without the powers being needed. The home where she lives is somewhere where she is happy to stay – most of the time.
The purpose of the guardianship would be to give the staff of the residential home the power to ensure that A returns to the residential home from her ex-husband. This is covered in Section 18 of the Act
18 (3) Where a patient who is for the time being subject to guardianship under this Part of this Act absents himself without the leave of the guardian from the place at which he is required by the guardian to reside, he may, subject to the provisions of this section, be taken into custody and returned to that place by any officer on the staff of a local social services authority, by any constable, or by any person authorised in writing by the guardian or a local social services authority.
So this all seems a bit heavy-handed – doesn’t it? Sometimes the Mental Health Act does that.But it would ensure that possibly there would be scope to bring A back to her residential home when she leaves to go to her ex-husband – it would allow the residential care staff to mandate A’s return too.
The Mental Capacity Act (2005) stresses the need for the least restrictive option being taken – surely there must be ways that it can be used.
In the next part, I’ll consider the use of the Mental Capacity Act..