Guardianship
| Author | Michael Butler |
| Pages | 211-220 |
Chapter 21
Guardianship
21.1 INTRODUCTION
Guardianship is another example of supervised care in the community provided under the MHA 1983. Whereas, however, a CTO addresses the patient’s health and his need for treatment, guardianship addresses the patient’s welfare and his need for protection.
Put very simply, guardianship involves the appointment of a guardian who is given certain powers to help a patient manage his own welfare. The idea is not a new one. Under section 34 of the Mental Health Act 1959, a guardian had ‘all such powers as would be exercisable by him ... if he were the father of the patient and the patient were under the age of 14 years’. Times change, however, and since the MHA 1983, a guardian’s powers have been much more circumscribed, to the extent that they are almost notional. Its continuing value as a tool for the care of the mentally disordered is, therefore, now much more questionable, something which is perhaps reflected by the declining frequency of its use. It remains of potential use where there are concerns that mental disorder affects a patient’s ability to look after his own affairs, and may typically be used, therefore, in respect of the elderly or those with learning disabilities. Many that are subject to guardianship will lack capacity and may, therefore, also be subject to decision-making under the MCA 2005.
There are various routes by which a patient may end up subject to guardianship but by far the majority will arrive there as a result of a civil application under section 7 of the MHA 1983. Apart from a brief consideration of the alternative routes, therefore, this chapter focusses on such applications.
212 A Practitioner’s Guide to Mental Health Law
21.2 ALTERNATIVE ROUTES INTO GUARDIANSHIP
The alternative routes to an application under section 7 of the MHA 1983 are as follows.
21.2.1 Court orders under section 37 of the Mental Health Act 1983
A guardianship order under section 37 of the MHA 1983 may be imposed as a sentence in criminal proceedings, although this court power is used sparingly. The criteria for the imposition of the order, and its effect, are considered at para 10.5.1.
21.2.2 Transfer under section 19 of the Mental Health Act 1983
A patient already liable to detention in hospital (including a patient under section 2 of the MHA 1983) may be transferred into the guardianship of the LSSA or any other person approved by such an authority (section 19(1)(a)). The procedure is covered by regulation 7 of the Mental Health Regulations 2008.
21.3 GUARDIANSHIP APPLICATIONS UNDER SECTION 7 OF THE MENTAL HEALTH ACT 1983 – THE PROCEDURE FOR MAKING AN APPLICATION
Essentially, the procedure for making an application for guardianship under section 7 of the MHA 1983 mirrors the procedure for making an application for the admission of a patient to hospital under section 3.
21.3.1 Considering the case
Section 13(1) of the MHA 1983 requires an LSSA to make arrangements for an AMHP to consider the patient’s case whenever the authority has reason to think that an application for guardianship may need to be made.
21.3.2 The applicant
Section 11(1) of the MHA 1983 provides that an application for admission into guardianship may be made either by an AMHP or by the patient’s nearest relative. As with applications for hospital admissions, however, the vast majority of applications will be made by the AMHP. Unlike applications for
admission to hospital, an AMHP need not have interviewed the patient before making an application for guardianship (section 13(2)).
The application must be made within 14 days of the applicant having personally seen (although not necessarily having interviewed) the patient (section 11(5) of the MHA 1983).
21.3.3 Consulting the nearest relative
According to section 11(4) of the MHA 1983, an AMHP may not make an application for guardianship where the nearest relative has notified the AMHP or the LSSA of his objection to the application being made. The AMHP is also prevented from making an application if he...
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