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Compulsion in the Community
The Mental Health Act 1983 is the major piece of mental health legislation in England and Wales. We’ve had statute laws governing the care and treatment of mentally disordered people for nearly 300 years, since the Vagrancy Act of 1714. The first of these acts of parliament to have the title ‘the Mental Health Act’ was in 1959, then 24 years later we got the Mental Health Act 1983. Then in 2007 (another twenty four years later!) we had some significant amendments to the 1983 Act. Look out for a new Mental Health Act in the year 2031!
The Mental Health Act – in and out of hospital
When most people think about the provisions of the Mental Health Act (MHA), they think about people being detained in hospital or ‘sectioned’. Of course the Mental Health Act isn’t just about care and treatment in hospital, and particularly since the 2007 amendments, much of it is concerned with treating and caring for people outside hospital. It is those provisions I want to discuss in this article. These are the provisions that are going to be of more relevance to the care home sector. To treat people detained under section 2 or 3 of the MHA, a nursing home or hospital would need to be registered under the Act. To care for people subject to compulsion in community settings, no such registration needs to be in place.
In this article I want to explore one particular framework for compulsion in the community – namely Guardianship - which dates back to the 1959 Act. There’s a newer legal framework – Supervised Community Treatment – which was introduced in the 2007 Amendment Act which I want to discuss in a future article. You may well come across both of these provisions if you are supporting someone who has previously been detained in hospital for sometime before being discharged home or to a care home.
In Scotland, use of Guardianship is now quite different. It was a feature of the Mental Health (Scotland) Act 1984 which has now been superseded by more recent laws. A new form of Guardianship was introduced in Scotland to cover financial and other decision making for people who lack capacity. (In England and Wales you do not have to lack capacity to be subject to Guardianship).
The idea of Guardianship is starting to look a bit old-fashioned now, and is maybe going out of fashion because the number of people on Guardianship has been going down for the last few years. Essentially Guardianship is a legal framework that can be applied to people with a mental disorder, if the Guardianship order can be shown to be essential in delivering a care plan for someone; that is without Guardianship the care plan would fail. So Guardianship has a number of powers (well actually three main powers) to require someone to do something. Those ‘something’s’ are
1. Live in a specified place (that might be a care home)
2. Attend for treatment or occupation for example at a day hospital
3. Give access to professionals (such as a doctor) to see them
All useful powers, but the problem with them is the word require. If someone insists on leaving a care home they cannot be detained or restrained. Someone could attend for treatment but not be forced to have the treatment, and the requirement to give access doesn’t mean that the GP or someone else can force entry. Many see this as the problem with Guardianship; it lacks teeth. It depends a great deal on the co-operation of the patient, and I suppose if we’ve got the co-operation of the patient why do we need a legal order at all? There is one crucial power I haven’t mentioned. If someone absents themselves from where they are required to live, they can be bought back to the home, using force if necessary. In my experience this is the key feature of Guardianship that can give re-assurance to care staff. If a person should wander, or maybe go back to their own house (whether they still own it or not!), or go the house of someone who has been financially exploiting them, the staff know the law gives them the power to bring the person back, or ask someone else such as the police to do it. I’ve discussed in earlier articles about use of the police, so you’d need to think carefully in what circumstances it would be appropriate to ask the police to return a resident to your home. In addition (and this was a change to the Act brought in with the changes in 2007) is that if someone becomes subject to a Guardianship order they can be removed in the first instance from their own home or hospital, to the care home they are required to live at.
I said earlier that the number of Guardianships is reducing. I think the main factor in Guardianship falling out of favour is that now for people who lack the capacity to make decisions about their care and treatment, we now have the Mental Capacity Act 2005 (MCA) which gives staff protection from liability, if they make a decision in the best interests of someone. Those best interests decisions can include restraining someone. So in this way we can see that perhaps the MCA might seem a more straightforward alternative to Guardianship.
Not a quick fix
Guardianship provisions are contained in section 7 and section 8 of the Mental Health Act. Unlike other sections of the Mental Health Act concerned with admission to hospital, Guardianship orders are not usually organised and applied for quickly. Admission to hospital is often an urgent response to a psychiatric crisis situation. Guardianship is a different kettle of fish, and needs longer term planning to ensure it is the most appropriate means of ensuring the care plan is delivered. The mechanics are similar, completion of two recommendations by doctors, and an application by an Approved Mental Health Professional. However good practice suggests this is only done after a meeting or case conference involving people concerned with the person’s care, including the person and their family. If the care plan included moving someone to a care home, or continuing to live in a care home, then care home staff should be part of the case conference. The key issue the case conference should explore is what would be the purpose of the Guardianship, and how would it help us ensure the person’s care plan was carried out. As the name of the provision implies, the powers of Guardianship are given to a Guardian. In the majority of cases that Guardian is the local authority, usually delegated to a social services worker to ensure the requirements are met. So the involvement of a social services manager is key to the planning process, in fact they will usually chair the case conference.
When it works best
Thinking back to my own practice I can think of some examples when Guardianship worked well:
· Where it was believed a confused person was being exploited by others in their own home. The person was moved to a care home where they settled well, and staff were able to have a degree of control that meant the person could be returned to the care home if necessary
· Where someone was living a chaotic lifestyle, moving from one type of unsatisfactory accommodation to another. The person accepted the authority of the Guardianship which required them to live with a caring relative.
· In delivering training on Guardianship, I sometimes make reference to the Inquiry Report titled ‘the Falling Shadow’. This was the tragic story of Andrew Robinson who killed an Occupational Therapist in hospital. The inquiry team said the person’s most stable and settled period in their life was when they were subject to a Guardianship order.
Of course guardianship orders do not have to be in place for ever, and can be discharged. Good practice says this should only happen following consultations between health and care staff to ensure that the care plan can still be effectively delivered. The QCS management system contains guidance in the Mental Health Regulations policy on how Guardianship orders can be applied for, and put into practice. One final note, people subject to Guardianship Orders requiring them to live in a care home, can still be subject to financial charging policies – it’s not a passport to free care!