A guardianship order gives the guardian three powers: to
require the person to reside at a specific place, to require the person to
attend for medical treatment, occupation, education or training, and to require
access to be given to a doctor, an AMHP or other specified person.
The guardian may be the local social services authority, or
an individual, such as a relative.
The application has to be made by an AMHP, with two medical
recommendations.
Unlike detention under sections 2, 3, or 4, a guardianship
order does not have any effect until the local authority accepts the person
into guardianship.
This means that an AMHP and two doctors can’t just decide
that someone needs to be under guardianship. In practice, there’s an extended
process whereby a panel set up by the local authority look at the circumstances
of someone being considered for guardianship, and an application will only go
ahead if it is accepted that it is appropriate.
There are a number of problems with guardianship. One is
that it can be used to restrict someone’s liberty, but it can’t be used to
deprive them of their liberty. So, for example, if someone on a guardianship
order decided to leave the care home where they were living, they could not be
physically prevented from leaving, but could be returned once they have left.
Another snag is that although guardians have powers to
require people to attend for medical treatment, they don’t have any power to
make them accept that treatment.
In practice, guardianship tends mainly to be used for
people lacking capacity, either because of dementia or learning disability.
The Code of Practice suggests that guardianship is most
likely to be appropriate for someone who is likely to respond well to the
authority and attention of a guardian and therefore would 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.
So guardianship doesn’t have the powers of compulsion of a
community treatment order, although unlike with a CTO the person does not have to
be detained under s.3 before a guardianship order can be considered.
However, guidance suggests that If the person lacks
capacity and is objecting, then the powers under the Mental Capacity Act would
have to be used to authorise a deprivation of liberty. And with a
non-objecting, non capacitous person, it might be better just to go down the
Mental Capacity Act route, rather than consider guardianship at all.
I was practicing under the Mental Health Act 1983 for a
total of 37 years, and I only once made an application for guardianship. That
was in 1985, not that long after the 198 Act came into force. I won’t go into
detail here, but it did not work out well.
According to the most recent statistics for England, which
go up to 2021, perhaps because of the factors I have mentioned, local
authorities are not keen on guardianship either.
These statistics go back as far as 2003. In the year 2003-4
there were 460 new cases of guardianship, and 900 continuing cases. However, in
the year 2020-21, there were only 55 new cases, and only 155 ongoing cases.
This represents a nearly 90% fall in the rate of new cases, and a 94% fall in ongoing
cases.
I fully expected that the draft Mental Health Bill in 2022
would either end the use of guardianship orders completely, or at the least
drastically revise the rules, but it makes no changes.
I suspect that within a few years guardianship will essentially cease to exist.
