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Guardianship – going out of fashion
I’m delivering some training about the role of Guardianship under the Mental Health Act next month, and it’s got me thinking about why its use is so relatively infrequent. I’ve written previously about this little used part of mental health law on the QCS website, but here’s a quick recap. Guardianship provides a legal framework of care for people with mental disorder to allow a guardian, usually a local authority, to determine where the person should be cared for. The Mental Health Act Code of Practice says its purpose is to ‘enable patients to receive care outside hospital when it cannot be provided without the use of compulsory powers’
There are 350 people in England and Wales subject to Guardianship so in your county or local authority area, that might mean only a dozen or so people subject to it. Interestingly numbers went slightly upwards in the last year which bucks a recent trend. So why is its use limited? Firstly, you have to realise that when Guardianship was first introduced in the Mental Health Act 1959, there weren’t really any alternative frameworks or measures for managing people’s care outside hospital. Now we have alternative measures like the Mental Capacity Act or Community Treatment Orders that weren’t around in 1959. In fact the idea of arranging care in the community for people with severe mental disorder was really in its infancy in 1959.
The other factor in the decline in the use of Guardianship is that needs of people with mental health problems change. When Guardianship was introduced in the 1959 Act its power was described as the ‘powers as would be exercisable by them or him in relation to the patient if they or he were the father of the patient and the patient were under the age of fourteen years’. This thinking sounds outdated now. This wording doesn’t appear in the current Act, but essentially the philosophy of having one person (the Guardian) responsible for someone’s care is essentially the same.
This leads to one other difficulty of Guardianship. In the wording of the Act, the powers of the Guardian are conferred on the Guardian ‘to the exclusion of any other person’. This is a highly significant power that means the Guardian, and the Guardian alone can determine where someone should live. A recent case in the Court of Protection has highlighted this power, where the local authority referred someone who was subject to guardianship, but was also subject to a deprivation of liberty authorisation. The judge in the case said that even if he thought it was in the person’s best interest to move him to another care home he could not order that because the Guardian’s power was greater than the Court’s!
This case also showed the difficulties of having different legal regimes trying to do the same thing – that is providing a legal framework for the care of vulnerable people. And that situation is not probably going to change very soon!