Guardianship – Making decisions


From my earlier posts about the possible use of Guardianship and the interrelation with powers under the  Mental Capacity Act in the context of a current decision that needs to be made at work, it seemed that in general, the Mental Capacity Act offers a similar authority to the Mental Health Act.

It allows for some restraint to be applied (Mental Capacity Act 2005 s 6) if it is a proportional response.

So what guidance is there about the differences? I am curious now as to whether I was asked to prepare a Guardianship application because the people doing the asking weren’t perhaps as aware of the scope of the Mental Capacity Act as I had assumed (this is not meant as a disservice it’s just that quite a lot of people are still unsure of the scope of the new legislation).  It seems to be a least restrictive option.

image piccadillywilson at Flickr

I’ll try and sum up so as not to turn this into an essay!

The issue that we need to address is not able compelling A to stay in one place (her residential home – where she has stated that she is happy to stay) but more about how to prevent her from leaving and going to her ex-husband (not necessarily to prevent her from seeing him)  and what can be done to ensure that she returns when she does go.

The Mental Health Act Code of Practice currently (because it changes in November!) says that

21.4 A person absent without leave while under guardianship may be taken into custody by any officer on the staff of the local social services authority, or by any person authorised in writing by the guardian or the local social services authority.

and to me, this is the main difference between the usage of the two acts. There are some (bluntish) teeth to the powers of Guardianship regarding ensuring that someone who leaves their place of residence can return. The Mental Capacity Act allows for some form of restraint to prevent a person from leaving in the first place (assuming it is proportional) but no powers to compel A to return – (I don’t think.. ).

We are needing to look at the powers to bring someone back to a particular place if A does go back to her (potentially abusive) ex-husband.

The principle of maintaining the path of least restrictive practice remains crucial.

Can we honestly imagine that forcibly trying to remove A from her ex-husband’s house would be feasible? It’s a question I did actually ask to which I had a positive response.

What would his response be? Would the legal force be enough to ‘scare’ him into not allowing his ex-wife to enter? In which case, would the appointment of a deputy serve exactly the same purpose if no ‘power’ were needed?

A new Code of Practice has been published which will come into force in November. A quick glance foresees some of the interplay between the Mental Health Act and the Mental Capacity Act and there is an explicit statement 26.12 that the Mental Health Act (namely Guardianship)  should be used where

• 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;

In this case, the particular need would be the potential abusive situation.

The Mental Capacity Act Code of Practice 13.20 says that

Decision-makers must never consider guardianship as a way to avoid applying the MCA

But I’m not sure that is the case in this situation. Guardianship could be considered if it were the best for A and not as a way of avoiding applying the Mental Capacity Act – indeed, in many ways, the Mental Capacity Act would be favourable.

There is also the issue of potential deprivation of liberties under the Human Rights Act (1998) (Article 5). This will, no doubt, be picked up over the next few months with additional provisions being added to the Mental Health Act – but now, today, I am working in a situation prior to those provisions being enforced.

While the Mental Capacity Act allows for some kind of restraint, it does not seem (to me, anyway, although I am happy to be corrected) there are any powers to return A to her home if she has already left.

So where am I with this? Still looking at the Mental Health Act to be honest. The care coordinator who knows A thinks that the sanctions available to guardians are necessary and that she will respond to them. Sometimes when we know that there is a situation of (potential) abuse and a vulnerable adult, we are obliged to take action at the firmest level.

Would the deputyship be a better case scenario? – possibly in some circumstances – it is definitely worth consideration –  but it looks for the moment that the Guardianship will be favoured. I am taking the two options to the multi-disciplinary meeting though.

Now I need to plough through the local authority procedures – but don’t worry, I won’t share those!

8 thoughts on “Guardianship – Making decisions

  1. Mental Capacity is a delicate and difficult issue. In fact I just constructed an email to send around to folks exactly on this matter. Here we have something called conservatorship which is done through the court system. Basically it removes a person’s ability to make decisions for themselves. However, there are many, many folks who are conserved but go whereever they please and continue with their deterimental lifestyles. I’m not sure there is a good answer for any of it. We can’t really tie folks down, if they are ambulatory. I am working on a post about this issue. Difficult to say the least.

  2. It is. There is no right answer but lots of guidelines and guidance – it’s just making sense of it that is the problem sometimes!

  3. A top post. Really helpful and I applaud you for trawling through the codes of practice.

    Fasinating that the new COP for the MHA is clear about using it if there is need to return the patient to the setting where they are living. I wonder how many times this needs to happen before the care plan is considered unworkable.

    If you go for Guardianship rather than MCA on the grounds that you can return the patient how do you get them there in the first place (not needed in your case) as Guardianship has no specific powers to convey but might depend on the lawyers’ interpretation. This brings us back to ‘best interests’ which I have been led to believe can be expanded to cover all aspects of care including conveyance or returning patients.

    Really looking forward to hearing the outcome. Are you getting legal advice and if so do you get it from the LA or the Trust?

  4. Thanks TT. I found the new Code of Practice almost by accident and although it isn’t ‘in force’ under November, I think it has some good pointers on the intention of the law. I agree that conveyance continues to be an ‘issue’. I wouldn’t be surprised if some kind of MCA case law turns up sooner rather than later to clarify. In the meantime, my instinct would be to assume that s4 of the MCA would allow it.
    To date, no, I haven’t specifically sought legal advice on this particular case but if I were to, it’d be the trust (as it’s the Mental Health Act). I haven’t had much dealing with the Trust solicitors. I hope they respond more speedily than the local authority ones 🙂

  5. Excellent post, as was your previous one about this. I like the way you analyse the situation but still show that you care very much about A. I do not envy you in having to be a paer of the decision-making process here, but the system needs more people who care as you do.

  6. Answered one of my own questions today. Attended the first day of two AMHP conversion courses and appears that Guardianship will now be given powers to convey- also interesting debates between Guardianship, ‘best interests’ and the new Community Treatment Orders that seemingly will take a little time to bed down- not sure if I can see the difference at this stage between these and Section 17 leave

  7. Thanks for that TT. I have my own AMHP conversion course coming up in a couple of weeks! It’s good to know that. It is a bit confusing at the moment (certainly to me. I’ve only been warranted a couple of months!)

Comments are closed.