Section 7: Guardianship

For a guardianship application to be made, a person has to be suffering from a mental disorder, and it is necessary for the welfare of the person, or to protect other people.

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.

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.

Can a person be detained under more than one section of the Mental Health Act at once?

This is by no means as straightforward an issue as it may seem, and can from time to time create difficulties and anomalies.

While as a general rule, a person cannot be subject to more than one section of the MHA simultaneously, there are exceptions to this rule. There are also implications regarding whether or not certain sections can continue once a decision has been made.

I’ll look at some examples.

S.5(2)

The Code of Practice states that S.5(2) cannot apply “to a patient who is already liable to be detained under section 2, 3 or 4 of the Act”(para18.7).

If an informal hospital patient is detained under S.5(2) an AMHP has up to 72 hours to arrange an assessment with a view to detaining under S.2 or S.3. Once a decision has been made, and an application completed for S.2 or S.3, the S.5(2) detention ends. This also applies if the decision is made not to detain.

The Code of Practice states: “Although the holding power lasts for a maximum of 72 hours, it should not be used to continue to detain patients after the doctor or approved clinician decides that, in fact, no assessment for a possible application needs to be carried out, or a decision is taken not to make an application for the patient’s detention.”(para18.20)

Additionally, it needs to be borne in mind that detention under S.5(2) does not permit the patient to be moved from one hospital to another. If they are moved, for example from a general hospital to a psychiatric hospital, or vice versa, then the S.5(2) would automatically end.

What about S.2 to S.3?

Ah. If an AMHP assesses a patient who is detained under S.2 for assessment with a view to detention under S.3 for treatment, and makes the decision not to detain them, then, although best practice would be for the Responsible Clinician to discharge them from S.2, there is no requirement to do so, so the S.2 could legally continue to the end of the 28 day period of detention.

There are situations in which this could be justified. An example that springs to mind is where a patient has been detained under S.2 and the request to detain under S.3 comes within the first couple of weeks of the original detention. The AMHP may consider that it is too premature to consider detention under S.3, which could last for up to 6 months, and may think that the patient’s condition could improve sufficiently over the remaining time of the S.2 to make further detention unnecessary.

S.136

A similar rule as that for S.5(2) applies for detention under S.136. If an AMHP and at least one doctor have assessed and decided that a patient detained under S.136 does not need to be detained under the MHA, the S.136 can remain in force only while any necessary arrangements are made for the disposal of the patient, such as arrangements for informal admission or transport home. The Code also points out that someone subject to S.135(1) or S.136 cannot be placed on S.5(2), since S.5(2) only applies to inpatients.

The S.136 will also remain in force while arrangements are being made for a hospital that is able to take the patient if it has been decided to detain under S.2 or S.3. Of course, this will only apply until the end of the maximum length of detention of 24 hours.

Assuming there is a bed, then the S.136 ends as soon as the relevant application has been made. As the patient is then liable to be detained, this authorises the AMHP, the police or any other relevant person to hold the patient in custody until they can be transferred to hospital.

The same will apply for a patient detained under S.135(1) who has either been taken to a place of safety for assessment, or assessed at the place where the warrant has been executed.

Guardianship (S.7)

No-one can be detained simultaneously under both Sec.3 and S.7, as the Reference Guide states: “Once a patient subject to guardianship is admitted for treatment, the guardianship ceases.” (para8.99)

However, a patient subject to Guardianship can be detained under S.2 (and S.4) (para30.36).

Community Treatment Orders

Possibly because Community Treatment Orders were added to the MHA 1983 by the 2007 MHA, many years after the original drafting, it gets rather more complicated.

Because people can only be subject to a CTO if they are detained under S.3, people on CTO’s can be regarded as still subject to the original, latent, S.3.

The Reference Guide states unequivocally that someone on a CTO cannot be made subject to S.5(2)(para8.72). It goes on to explain that “because patients on CTOs can be recalled to hospital for treatment if required, it should not be necessary to make applications for their detention.”(para8.96) The Code states that “where the person is known to be on a CTO and compulsory admission is indicated, the recall power should be used”(para18.17)

You might think therefore, that no other sections of the MHA can be used with people on CTOs, but that is not necessarily the case. The Reference Guide recognises that in practice patients may end up being detained under other sections “if the people making the application do not know that the patient is on a CTO"(para8.96). It goes on to state:

An application for admission for assessment under section 2 or 4 does not affect the patient’s CTO. Nor does an application for admission for treatment under section 3 if, before going onto a community treatment order (CTO), the patient had been detained on the basis of a hospital order, hospital direction or transfer direction under part 3 of the Act. (para8.97)

So this does mean that a police officer, not being aware of a person’s status as being subject to a CTO, may legitimately detain someone under S.136.

Consequently, an AMHP and a doctor would still need to assess in accordance with the requirements of S.136, but if they decided the person needed to be admitted to hospital, they could then make arrangements for their recall to hospital under the rules for a CTO.

An application for detention for treatment under S.3 would automatically end a CTO, in the same way that a S.3 would end a Guardianship Order. However, the Code says, “an application for detention should not be made in respect of a person who is known to be on a CTO” (para15.17), so the correct procedure would be recall to hospital, followed by revocation of the CTO if necessary. That action will then reactivate the latent S.3.

If in ignorance, perhaps because the person on a CTO has turned up in another part of the country, they are then detained under S.2 or S.4, the recall and revocation process can be initiated once the person’s true status is known, and once the S.3 had been restored, any other sections would cease to have effect.

I hope that’s cleared up any confusion.

DOLS or Guardianship? Recent Case Law

A recent appeal to the Upper Tribunal considered the case of NM (NM v Kent County Council [2015] UKUT 0125 (AAC)).

NM has diagnoses of mild learning disability with behavioural difficulties, and paedophilic sexual interest, and was subject to guardianship under the Mental Health Act, as well as being subject to the Deprivation of Liberty Safeguards.

He appealed to the Mental Health Tribunal, requesting to be discharged from guardianship.

The guardianship order required him to live in a residential care home, and also to attend for treatment with clinicians and therapists. The Judge stated that NM “had the capacity to decide where to live but not the capacity to decide on the supervision that was required to keep him and any child he came into contact with safe.”

NM’s solicitors put forward two grounds for appealing. The first was that because of the DOLS certificate, he was not free to leave the home, and therefore did not require guardianship in addition to DOLS. The second ground was that there was a contradiction in the Tribunal finding that he had capacity to decide where to live.

Kent County Council, who had responsibility for NM, argued that on the evidence presented to it the Tribunal was entitled to reach the decision it did, which was that Mr M had capacity to decide where to live, but not to decide the level of supervision he required.

NM’s solicitors in reply made reference to 26.10. & 26.13 of the Mental Health Act Code of Practice. These paragraphs suggest that it may be entirely appropriate to rely on DOLS rather than guardianship, and that AMHP’s and doctors had to consider all the circumstances of a particular case.  The CoP also suggests that “in cases which raise unusual issues” it may be preferable to go to the Court of Protection for a best interests decision.

The Judge observed:

“The tribunal’s analysis, identified the conditions that had to be satisfied if Mr M were to remain subject to guardianship. The key to the case was where Mr M would live. It found that he would not remain in the home without being subject to the guardianship. For practical purposes, he might not be able to abscond from the home itself, but he had opportunities to do so when he was on escorted leave. He needed to be in the home, or in a similar environment, if he were to preserve the continuity of his treatment. That treatment was not complete to the point where he was able to control his behaviour towards children.”

He went on to state that “it was essential to retain [guardianship] powers, given that Mr M lacked the capacity to regulate his behaviour without the treatment and supervision for which his continued residence at the home was necessary.”

The Judge concluded that the Tribunal had not made any error in law in reaching the decision to refuse to discharge the guardianship order, on the basis that DOLS was not sufficient protection to prevent NM from leaving the home, as it did not deal with the possibility of NM absconding. “This is a limitation inherent in the nature of a DOLS”.

The Judge therefore dismissed the appeal to the Upper Tribunal, noting that: “The Mental Capacity Act deals with the person’s best interests, whereas the Mental Health Act deals with protection of the patient and the public.”

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.