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.


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?

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!

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.

Guardianship – or a journey into Section 7 of the Mental Health Act

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.

image benieto at Flickr

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
    • occupation
    • education
    • training
  • 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..