I’ve been writing this
blog for 4½ years, and have written nearly 150 posts, but this is the first
post I have devoted to Guardianship under the Mental Health Act (Sec.7).
There is a reason for
this: I have a basic aversion to Guardianship. This is because my mother was
once frightened by a Guardianship Order while she was carrying me.
Actually, that last
bit isn’t true, but the fact is that in my 30 years practising under the MHA, I
have only once made an application under Sec.7, and that was in 1985.
It was a fairly
traumatic experience at the time. Back then, although I could make an
application for Guardianship, in order for it to have effect, it had to be
received and formally accepted by the Director of Social Services. I forwarded
the paperwork and a report to the Director, and waited. And waited.
The patient was in
hospital under Sec.3, and the Consultant was very keen for her to be discharged
from hospital. He started to put pressure on me to get it approved. I then
started to leave messages with the Director’s personal assistant. Quite a few
messages.
Then one day, after
yet another message left with his PA, I received a phone call. It was the
Director himself. He made it clear that he was annoyed at this campaign of
harassment from one of his junior minions. But having never been involved in a
Guardianship application before, he did not know what the procedure was, and
gruffly asked me what it was all about. I told him what he needed to do, and he
finally did it.
In the event, it was
not a success for this patient, and the patient was readmitted to hospital
under Sec.3 within a few weeks, and the Guardianship Order was discharged.
So what is a
Guardianship Order all about?
Sec.7(2) of the MHA
states:
“A guardianship application may be made in
respect of a patient on the grounds that(a) he is suffering from mental disorder of a nature or degree which warrants his reception into guardianship under this section; and
(b) it is necessary in the interests of the welfare of the patient or for the protection of other persons that the patient should be so received.”
A Guardianship Order confers on the
guardian three powers:
“(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.”
A guardian may be the local social services
authority, or an individual, such as a relative.
The Reference Guide, however, advises (para
19.8): “Although guardians have powers to require patients to attend for
medical treatment, they do not have any power to make them accept the
treatment.”
It goes on to say (para 19.11): “Guardianship may be used to
restrict patients’ liberty (eg by determining where they are to live) but it
may not be used to deprive them of their liberty (ie to detain them).” The
Guide advises that if the patient lacks capacity, and they are likely to be
deprived of their liberty, then a Deprivation of Liberty Authorisation under
the Mental Capacity Act should be obtained.
The Reference Guide states (para 19.3):
“In most cases it should be possible for
patients who need care, but do not need to be in hospital, to receive that care
without being subject to the control of guardianship. However, in a minority of
cases, the powers which may be exercised by the guardian, and the structure
imposed by guardianship, may assist relatives, friends and professionals to
help a mentally disordered person manage in the community.”
The Code of Practice advises (para 26.8)
that Guardianship is most likely to be appropriate where: “the patient is
thought to be likely to respond well to the authority and attention of a
guardian and so be more willing to comply with necessary treatment and care for
their mental disorder”. The clear implication of this is that the patient
should essentially be in agreement with the proposed Order.
All of the above leads to a number of
conclusions in respect of the use of Guardianship. One is that the powers of a
Guardian are not enforceable. For example, although there might be the power to
require a patient to attend for medical treatment, this does not mean that the
Guardian can forcibly bundle the patient into a car and take them to have a
depot injection. And even if the Guardian successfully got the patient to the
place where the injection was to be given, there is no actual power to force
the patient to have the injection.
Another is that Guardianship should not
really be used at all where the patient objects. Guidance also suggests that if
a patient, once they are on Guardianship, refuses to comply with the
directions, then the Order should be rescinded.
These are all reasons why I find it
difficult to justify the use of Guardianship in any but the rarest of
circumstances. One might think that the power to make the patient reside in a
certain place could be a good reason to use Guardianship to admit someone to
residential care. However The CoP (para 26.11) suggests that the Mental Capacity
Act might be more appropriate in these circumstances, when the patient lacks
capacity.
So how is Guardianship actually being used?
At the end of September, the Health & Social Care Information Centre
(HSCIC) issued its annual report on the use of Guardianship in England for theyear 2012-2013.
One of the key statistics from this report
is that, nationally, Guardianship is not widely used at all. In fact, there
were only 271 new cases in the year, and as at 31st March 2013 there
were only 619 people in England
subject to Guardianship. When this figure is compared to the number of people
detained to hospital under the MHA in the same period, just over 50,000, it can
be seen that Guardianship is extremely rarely used.
Not only that, but there was a fall of 20%
in new cases over the year. The study suggests that the year on year fall in
use of Guardianship could be due to “alternative legislation which promotes the
welfare of people who have a mental disorder which presents a risk to
themselves or others”, in particular, CTO’s and the MCA Deprivation of Liberty
Safeguards.
The study points out that “11,887 DoLS
applications were made in 2012/13 which represents a 4 per cent increase over
the previous year.” Over the same period there were 4,647 uses of CTO’s.
Jones, in the Mental Health Act Manual,
notes that the White Paper that preceded the MHA stated that Guardianship would
be needed for “a very small number of mentally disordered people”. It appears
that most local authorities are taking heed of this, as the detailed statistics
appear to show a huge variation between local authorities.
In parts of the North West of England,
Guardianship appears to be relatively popular, as the Wirral had 23 cases and Lancashire had 27. Only Hertfordshire, with 21 cases, had
more than 20. The majority of LA’s had less than 10; 43 authorities had none. London had a particular
aversion to Guardianship: out of 33 boroughs, 60% had no-one at all subject to
Guardianship.
The use of Guardianship in Wales is
equally miniscule. There were a total of only 74 people subject to
Guardianship, and 43% of these cases came from just two authorities: Swansea and Cardiff .
With the MCA and Supervised Community
Treatment available, and both Parliament and the guidance to the Act suggesting
that there are few people for whom Guardianship would be useful, it is perhaps
no surprise that Guardianship is so rare.
Thanks for your thought provoking comments. S.7 doesn't appear much use either for people lacking mental capacity unless you counter this with the best interests argument.
ReplyDeleteAn interesting article, particularly as tomorrow I am completing an assessment in relation to a Guardianship, for someone who lacks capacity in relation to keeping them self safe, who wishes to live at home, where there have been safeguarding issues in relation to the family supporting the situation.... person is not detainable under the MHA ... has previously been subject to CoP and their solicitor is in agreement with the assessment re Guardianship....
ReplyDeleteThis assessment is on the back of a safeguarding meeting and best interest decision ....
A sad article. Guardianship is like a net made of cobwebs. If the service user pulls too hard it breaks, if the guardian pulls too hard it also breaks, but in the right circumstances it can be the least restrictive way to keep someone safe and moving in the right direction.
ReplyDeleteThank you for this article I am currently appling for a guardinship order to ne able to put my mum in residential care.She has vascular dementia and has been assessed as having no capacity, she is in hospital at present and has been for 3 months as social services will not section her as she says she wants to go home.So ive been told I have to wait for guardinship to make this decision,i had a mental health assessor visit and it was horrendous I was made to feel like a criminal because my mum owns her home and it has to be sold to pay for her care. I stayed with her and looked after her for 4 and a half years but coulnt cope this whole process has been a nightmare.
ReplyDeleteThank you for explaining yet another obsolete contradictory way to d
ReplyDeleteThank you for unravelling yet more MHA jargon very helpful to me well done being concise too! Cheers x
ReplyDelete