Guardianship – A Case Study


I have been working on another Guardianship application. It is an interesting scenario. I thought I would present a scenario based on some of the issues in the form of a fictional case study. I have been liberal with the actual details  which have been changed fairly dramatically to protect the privacy of those involved. The following is quite far removed from the actuality.

Mr and Mrs A are a loving couple. They have been married for over 50 years. Mr A  has an unspecified dementia. He is becoming more aggressive, verbally and physically and Mrs A after much heart-wrenching, cannot manage to care for him at home. She doesn’t want to move him into residential care but she can’t cope.

Mr A moves. He is at a local care home. It isn’t as near as it could be.  Mrs A feels guilty but Mr A settles. Mrs A feels so guilty that she takes Mr A back home after about 6 months. Mrs A can’t manage. Of course, this is contrary to all ‘professional’ advice – but honestly, what’s advice against love and years of marriage and togetherness.

But after a few days seeing that it is too much for her to manage, Mrs A wants Mr A to go back to the residential home. Mr A doesn’t want to go. He is at home and his wife is with him. She looks after him well. Why would he want to move back to a residential setting?

Mrs A, meanwhile is almost literally tearing her hair out. She is getting no sleep, no peace. Mr A is verbally abusive and is refusing any outside help. There has been physical abuse in the past and it may be the time we are teetering on the brink.

Mr A can’t be gently persuaded. He can’t be persuaded by any means and his wife is now desperate. She hasn’t slept for days which become weeks.

His mental health has not deteriorated. He has a diagnosis and treatment plan. Hospital admission would simply be a means of displacing him from one setting to another.

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So what can we do to ensure Mr A moves?

This is where we considered the Guardianship application. I think we considered all other possibilities.

We needed a means to convey which the law changed recently to allow. Moving via a ward would make the move more disruptive. Mr A did not have capacity.

I wonder this kind of situation does not present itself more frequently. And if there were any other possibilities? And if the best decision was finally made?

9 thoughts on “Guardianship – A Case Study

  1. I’d agree that moving to a ward wouldn’t be helpful, in terms of progressing his care, and arguably could be harmful (since unnecessary moves correlate with increased mortality).

    Under the MCA 2005 you could hold a Best Interests meeting and determine, as an incapacitated adult, that he’s unable to give or withhold consent on where he resides so can be placed under section 5, since the MDT and his wife are all in agreement and a trial in a care home’s evidenced it’s met his needs well. Conveying him to the care home’s then dodgy, with neither the primary legislation and Code of Practice offering guidance on whether conveying is part of their necessary care, so lawful under section 5.

    Guardianship would clearly mean he’d have to reside in the care home and can be returned there but it doesn’t give powers to force a care plan upon him. Specifically, it doesn’t give powers to deprive him of liberty.

    The Eligibility assessment is trumped by Guardianship on where someone resides (ie DoLS authorisation can’t be given if it’s requested that someone resides somewhere other than where Guardianship says) but the code of Practice is specific in stating that if using Guardianship and also depriving someone of their liberty then both Guardianship and DoLS authorisation are necessary.

    Until April, we’re therefore in a hiatus – do we ignore the issue or do we go to the Court of Protection for a Declaration to lawfully place a Guardianship patient in a care seeting where they’ll experience various forms of deprivation of liberty?

    We’ve gone down the latter route in my corner, with me filling in COP3 forms today . . .

  2. Reas – this is the simplified version too!

    Shrink – Thanks for that. Really useful. Actually it kind of comforts me that we took a very similar path. It is a strange time of year because we are caught out by the Deprivation of Liberty.
    The real crux for us in a practical sense revolved around conveyance.. but I am surprised that I hadn’t come across this type of scenario earlier. It can’t be that unusual although it actually involved a lot of legal advice from people with a lot more experience than me so perhaps I was disingenuous to suggest it was a decision I made alone – as you can imagine, it involved much team discussion.
    I’m actually attending the Best Interests Assessor course and will also raise some of the issues that have presented themselves to me over the past few months.

  3. I think that as mentioned in the other comments you can place him in a care home under ‘best interest’s and this includes the conveying. I think there is scope within the MCA for this. And many ambulance services and police forces will / should have MCA policies around conveyance. The risk of using force has to be proportionate and you mention that she is at risk of physical harm.

    I see that you consider DOLS (come April). Again I am not sure that would be needed (but haven’t read your recent post yet). He previously settled in residential care and there is no reason why he might not do so again. Therefore I think it would be premature to request a DOLS authorisation before he goes. All the matter of how long it will take him to settle and how long you feel a restriction of liberty lasts before it becomes a deprivation.

    I think that he could go under best interests and if in April does not settle then an urgent authorisation can be issued prior to a full blown assessment.

    If the aggresive behaviour cointinues and required treatment, can’t be DOLS and might be MCA if dr happy with that. Although there are some that would opt for a MHA

  4. TT – It’s difficult stuff. In the case (which is slightly different from the above example but similar enough) we actually used the Court of Protection and Guardianship.

    It possibly could have taken place using Section 5/6 of the MCA.

    I wonder if it would be much different come April. There is a fair bit of discussion (from memory, p73/4 of Jones MHA Manual) about whether Guardianship can be used when there is an issue of Deprivation of Liberty. If I remember rightly, Jones seems to think it is but the Code of Practice is more ambivalent..

  5. What did you get from the Court of Protection? A one off order saying its fine to convey him and place him a residential care or a Deputyship order for health and welfare?

  6. Actually for clarification. In the end we didn’t need the order but there were enough differences of opinion for the LA lawyers to want more formal clarifications.

  7. Is your LA or trust signed up to the Dave Shepherd website? He runs an email group that discusses MHA and MCA issues all the time

  8. Yes, we’re signed up. I get the mailings and the newsletter thing but haven’t joined the list yet. I should though.. just haven’t got round it it.. . it sounds like it would be a useful forum

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