What’s the Point of Guardianship?

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 31^st 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.