Section 7: guardianship

Guardianship is relatively rare. When used, it is often used with elderly patients in residential accommodation.

Admission and powers

This is not intended as a detaining section but is included here for ease of reference. A person of 16 years or over may be made subject to guardianship if (s7(2)):

(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 can be made by the court under s37.

The guardian may be either a local social services authority (usually) or any other person. His powers are (s8(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 is also the power to ‘take and convey’ in s18(7):

In relation to a patient who has yet to comply with a requirement imposed by virtue of this Act to be in a hospital or place, references in this Act to his liability to be returned to the hospital or place shall include his liability to be taken to that hospital or place; and related expressions shall be construed accordingly.

Discharge

Routes to discharge	Responsible Clinician Mental Health Tribunal Responsible Local Social Services Authority Nearest Relative (no barring procedure possible)
Tribunal eligibility	Patient’s application: during first six months (s66(1)(c)), during second six months and each twelve month period thereafter (s66(1)(f)). No NR application (no need).
Types of discharge	Immediate, unconditional discharge
References	Discretionary reference by Secretary of State for Health and Social Care No mandatory references (oddly enough)

The relevant criteria are set out in s72(4). The Tribunal may in any case discharge, and must discharge if it is satisfied

(a) that he is not then suffering from mental disorder; or
(b) that it is not necessary in the interests of the welfare of the patient, or the protection of other persons, that the patient should remain under such guardianship

If a private guardian gives notice that he wishes to relinquish his functions, or dies, then the Local Social Services Authority becomes the guardian (s10(1)).

The responsible LSSA, or the NR, can discharge the patient from guardianship (s23(2)). In contrast with s2 and s3 patients, the RC has no power to issue a ‘barring certificate’ to prevent a nearest-relative discharge.

The burden of proof remains with the patient. If the guardianship provisions amounted to a ‘deprivation of liberty’ for the purposes of Article 5, it would lead to the same concerns as led to a declaration of incompatibility in R (H) v MHRT North and East London Region [2001] EWCA Civ 415^M.

Section 7: guardianship

Admission and powers

Discharge

Further reading