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.
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.
"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).
ReplyDeleteThank you for pointing this out, Richard. I have now updated the post accordingly.
DeleteThis is hardly new though, been there since 1983, and the AMHPs I know are well aware of it.
ReplyDeleteCan the nominated accommodation be the persons own home?
ReplyDeleteYes.
Delete