Wednesday, 11 April 2018

The Ins and the Outs of Guardianship

S.7, guardianship, is not the most extensively used of sections in the Mental Health Act. Indeed, as you can see from the NHS Digital graphic above, new and ongoing guardianships have declined by over 50% since 2003-4.

The purpose of receiving a mentally disordered person into guardianship is for the guardian, usually the local authority, to be able to exert certain powers. These are outlined in S.8(1):

(a) the power to require the patient to reside at a place specified by the authority or person named as guardian;
(b) the power to require the patient to attend at places and times so specified for the purpose of medical treatment, occupation, education or training;
(c) the power to require access to the patient to be given, at any place where the patient is residing, to any registered medical practitioner, approved mental health
professional or other person so specified.

There are reasons, however, why guardianship is not that popular. Perhaps the main one is that these powers are not really enforceable. While S.18(3) does allow someone absent without leave to be taken into custody and returned, in practice these decisions tend to be undertaken as a best interests decision under the Mental Capacity Act. [With thanks to Richard Jones for pointing out an earlier error, which I have rectified]

Similarly, while you may be able to take someone to a day centre for “occupation, education or training”, you could not actually force that person to participate.

Another reason is that the person in question, while not needing to have mental capacity, needs to have some basic understanding of the powers of guardianship and to essentially be in agreement with it. If someone is clearly indicating by their behaviour that they are not prepared to comply with the requirements of guardianship, then the Code of Practice suggests that guardianship is probably not appropriate.

Community Treat Orders, in contrast, have far greater powers to compel treatment and residence.

In practice, guardianship tends mainly to be used for people lacking capacity, either because of dementia or learning disability.

When one reads the relevant sections of the MHA, it becomes clear that, as with S.2 & 3, a guardianship application has to be made by an AMHP (or the nearest relative) on the medical recommendation of two doctors. The doctors would complete either Form G3 (joint medical recommendation) or G4 (single medical recommendation. The AMHP would then complete Form G2, actual application.

Unlike S.2 & 3, however, this is really only the start of the process. The local authority has to decide whether or not to accept the person into guardianship. Procedures for this process vary between LA’s but will tend to require a fairly protracted process, which will commence even before the application is made.

But there is another, perhaps simpler and more streamlined way to complete guardianship.

This is tucked away in S.19. S.19(1)(a) states:

(a) a patient who is for the time being liable to be detained in a hospital by virtue of an application under this Part of this Act may be transferred to another hospital or into the guardianship of a local social services authority or of any person approved by such an authority.

The Reference Guide goes into some depth about this:

Patients may also be transferred to guardianship from detention in hospital,
with the agreement of the responsible local authority … On transfer, part 2 patients are treated as if subject to a guardianship application accepted on the day they were admitted to hospital on the basis of the application to which they were subject immediately before the transfer.( 28.141)

This also works the other way:

Patients subject to guardianship can be admitted to hospital in the same way as anyone else, without having to be detained under the Act. Likewise, they may also be detained under the Act on the basis of an application for admission under part 2 like anyone else, but there is also a specific procedure for transfer from guardianship to hospital. (28.144)

In this situation, apart from having to make the necessary arrangements with the local authority to agree to receive the person into guardianship, all that needs to be done is for the patient’s responsible clinician to complete form G6.

This reads in part:

Authority is hereby given for the transfer of [full name of patient] who is at present liable to be detained in [name and address of hospital] to the guardianship of [name, and address of proposed guardian] in accordance with the Mental Health (Hospital, Guardianship and Consent) Regulations 2008.

I only know about this because our local authority has recently been involved in a guardianship request for a patient detained under S.3 in which this transfer procedure was used. There was some nerdy excitement in the AMHP hub at this discovery.

While preliminary investigations need to be made by an AMHP, including the reasoning for the transfer, and involving other members of the local authority, this does appear to be a much smoother way of achieving the objective.

However, it's not quite so smooth in the other direction. An AMHP and two doctors would still need to assess and complete the paperwork for a S.3 if the person needed to be readmitted to hospital.


  1. "For instance, if someone who was required under S.8(1)(a) to live in a care home decided to leave the care home, they could not be physically restrained or dragged back to the home in question." This is not correct: see s.18(3).

    1. Thank you for pointing this out, Richard. I have now updated the post accordingly.

  2. This is hardly new though, been there since 1983, and the AMHPs I know are well aware of it.