GW v Gloucestershire County Council
| Jurisdiction | UK Non-devolved |
| Judge | UTJ Jacobs |
| Judgment Date | 22 September 2016 |
| Neutral Citation | [2016] UKUT 499 (AAC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Date | 22 September 2016 |
| Docket Number | HM/1440/2016 |
Neutral Citation: [2016] UKUT 0499 (AAC)
Court and Reference: Upper Tribunal (AAC)
Judge: UTJ Jacobs
HM/1440/2016
Issue: Whether a Tribunal decision to uphold guardianship was proper in relation to a person also subject to an authorisation under the DoLS regime.
Facts: GW was made subject to guardianship under the Mental Health Act 1983 and subsequently to a standard authorisation for detention under the Deprivation of Liberty Safeguards under the Mental Capacity Act 2005. At a Tribunal hearing relating to the guardianship, it was found that GW was without capacity to decide where to live or to participate in proceedings. The contention for her was that the existence of the DoLS authorisation meant that the guardianship was unnecessary. In upholding the guardianship, the Tribunal found, inter alia, that neither regime took precedence, that in a particular case the 2 regimes might be complementary, that a standard authorisation did not replicate the powers arising under guardianship (and in particular the powers of the police to return the person to their residence) and did not involve having a responsible clinician (which was important to the patient) or the boundaries of a guardianship (which assisted the psychology-based treatment of the patient and provided her comfort as she was aware she could apply to have the guardianship discharged).
On appeal, it was argued that the Tribunal's reasons did not show the necessity of the guardianship or the powers arising, and improperly relied on the views of GW; did not take into account counter-arguments to its conclusions, and in particular the significance improperly given to the patient being able to apply for discharge and the risk of different views as to where GW should reside if the guardianship ran with the standard authorisation; and did not apply the guidance in KD v A Borough Council and the Department of HealthMHLR[2015] MHLR 358 as to the overlap between guardianship and a standard authorisation.
Save for the cover sheet, this decision may be made public (r14(7) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI No 2698)). That sheet is not formally part of the decision and identifies the patient by name.
This decision is given under s12(2)(a) of the Tribunals, Courts and Enforcement Act 2007:
The decision of the First-tier Tribunal under reference MP/2015/20102, made on 26 February 2016, did not involve the making of an error on a point of law.
1. This appeal is brought with the permission of the First-tier Tribunal against the decision of that tribunal refusing to discharge the patient from guardianship. She was first received into guardianship on 8 January 2013 and the Court of Protection first made a Standard Authorisation on 14 February 2015. The essence of the case before both the First-tier Tribunal and the Upper Tribunal is that the former was no longer necessary in view of the latter.
2. The legal issue for the tribunal was defined by s72(4) of the Mental Health Act 1983:
72 Powers of tribunals
(4) Where application is made to the appropriate tribunal by or in respect of a patient who...
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GW v Gloucestershire County Council
...Gloucestershire County Council [2016] UKUT 0499 (AAC) OF THE UPPER TRIBUNAL (ADMINISTRATIVE APPEALS CHAMBER) Save for the cover sheet, this decision may be made public (rule 14(7) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI No 2698)). That sheet is not formally part of the dec......