Guardianship – What hope for the Mental Capacity Act?

So yesterday, I had found some of the reasons that the Mental Health Act could be used to apply for Guardianship in considering A.

The Mental Capacity Act (2005) is fairly new ground – well, over a year now(don’t be fooled by that 2005 thing!)  but sometimes as we get older our minds move more slowly – and a year is still new to me!

One of the things that resulted from the introduction of the MCA was that it brought into statute law that which had remained in common law for a long time, namely the principles of best interest, necessity and proportionality.  By doing so, I think it made some of the decisions a little easier – or at least a little clearer.


Basically, it allows for decisions and actions to be taken when someone has lost the capacity to make or judge that particular decision or action provided an assessment has been done of that persons’ capacity and their ability to make that decision.

So, moving back to A, we can imagine a scenario. She wants to leave the care home to go back to her ex-husband. Home manager makes a decision that she does not have the capacity to make that decision to leave. She has considered the five principles of the Mental Capacity Act

The principles

(1) The following principles apply for the purposes of this Act.

(2) A person must be assumed to have capacity unless it is established that he lacks capacity.

(3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.

(4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision.

(5) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.

(6) Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

Ok, that ticks all the boxes. And section 4 of the Mental Capacity Act emphasises that any action taken must be in the Best Interests of A. That works. We can prove on past record that although unable to make the decision currently. it would not be in A’s best interests to leave the residential home at that time if she were to go to stay with her ex-husband.

After all, assuming the decision to leave him was taken when she had capacity – there is a reason he’s her ex..

The use of restraint to ensure that A stays within the care home could also be potentially sanctioned under Section 6 of the Mental Capacity Act which allows restraint under the circumstances that

‘it is believed necessary to do the act’ to prevent harm to A and that the act proposed (the restraint) is a proportionate response to ‘the likelihood of A’s suffering harm’ (quite likely looking at the past events) and ‘the seriousness of that harm’.

Anyway, it seems that the Mental Capacity Act works here – we can apply to the Court of Protection to appoint a deputy under Section 16 of the Mental Capacity Act to make decisions as to A’s personal welfare as under section 17, the deputy would have the power to make decisions about

17 (1) (a) deciding where P is to live;

(b) deciding what contact, if any, P is to have with any specified persons;

(c) making an order prohibiting a named person from having contact with P;

(d) giving or refusing consent to the carrying out or continuation of a treatment by a person providing health care for P;

(e) giving a direction that a person responsible for P’s health care allow a different person to take over that responsibility.

So there we are.. we have 17 (1) (c). A named person (ex-husband) can be prohibited from having contact with A. Or if, for some reason, contact is to be permitted, under 17 (1) (b) it can be specified.

This seems to cover the same ground that the Guardianship might – and in accordance with the Principle of proportionality (using the course of least restriction) it seems a more preferable option.

It almost begs the question as to what the difference might be between a deputyship being appointed and a Guardian being in place.

I will continue with this to look at both the Mental Health Act and the Mental Capacity Act to see if the respective codes of practice can assist and sum up some of the choices.

8 thoughts on “Guardianship – What hope for the Mental Capacity Act?

  1. You are right there does seem to be little difference now that the common law has been given a statutory framework. Guardianship only appears to work (with older people) where there is enough cognitive functioning to understand the concept of being told where to live etc. It doesn’t give any powers of restraint and only allows the police to return someone to the designated address- which in itself in not ideal for the patient. i’m not quite sure which one is the least restrictive alternative?

    The problem we are encountering is the nursing home does not think that the MCA provides the staff with any ‘power’ and protection whereas they would be far happier if the patient were on Sec 17 leave or Guardianship. Not that this would make much difference but the fluttering of pink papers appears to make them think more clearly!

    Its all untested at the moment. Family Law website sends a weekly free email out with reference to interesting case law. Its mostly childcare but some good MCA stuff coming out the Court of Protection. One recently explictly made mention of the powers under ‘best interests’ to convey to hospital.

  2. I think there’s a lot of caselaw that needs to be ‘had out’ in regards to the MCA. It is too shiny-new for some of the authorities to wholly understand. Some are much more comfortable using the Mental Health Act because force is more clearly mandated in it. I think. I will have a look for the family law website in the meantime. I think it’ll be useful – thanks 🙂

  3. Have found these couple of posts really interesting (not that your others aren’t!), as this issue came up on one of my placements but wasn’t resolved before I left. In this case, guardianship was being considered because the patients section (3) had not been renewed but the staff had serious concerns that the patient would be vulnerable if he left the home. It was very messy. Not sure whether this was intended use of it or not…

  4. Thanks, CD. I’m glad they aren’t sending you to sleep at least (I’m kind of regretting not working out how to use the ‘more’ thing!). Without knowing the details it sounds like it there would be the potential to use it like that. You can use it to ensure someone stays in a particular place – the difficulty is in actually getting them if they don’t want to go (i.e. if they are in hospital and you want them to go into residential care.. ).
    But I really do appreciate the feedback 🙂

  5. This is really interesting to follow, especially from my American perspective. I wish we had more of our common law codified. I am often envious of Germany and France because generally the codes lead to cleaner and more consistent results. It is true that when statutes are new there is a lot that needs to be hashed out. I would think that after a couple of years of interpretation, things will be better. Thanks again for the in depth analysis.

  6. Pingback: Guardianship - Making decisions « Fighting Monsters

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