ambo

Guardianship

Just when you think you’ve got it all sorted out in your head – and just when you’ve been nationally recognised! – there’s a curve ball thrown at you!? Typical.

Incidentally, this has happened to me before … I spent a year writing a proper mental health policy for my force in 2005/6. In doing so, I solicited officers’ views about ANY and ALL questions and queries on mental health so that I could ensure they were addressed in the policy. I carefully listed everything they asked to ensure that what they wanted addressing in operational guidance was included. I considered it a job well done when I published it until a sergeant rang me up to complain that the situation he wanted advice on wasn’t mentioned at all and that my new policy “wasn’t very much use, really”. Thanks, Sarge!

Today, an AMHP presented a situation to me that I’ve never encountered before, albeit I have read about “guardianship”. I read about it partly to try to understand why the police never seem to get requests in connection with it. By definition, guardianship involves patients who remain at liberty and therefore a reduced need for coercion reduces the need for the police. << That’s one of the saddest sentences I’ve typed on this blog, as the police should not be just the coercive arm of the mental health system.

In fairness to the AMHP who I know well, he hadn’t dealt with this kind of situation before either and his need for police support caused me to think I should cover the subject, in case some officers across it.

WHAT IS GUARDIANSHIP?

It may be that some think of the legal status of mental health patients as being either “inpatients” or “outpatients”. Inpatient in a psychiatric hospital, either voluntary or detained under the Mental Health Act; OR “outpatients” under community mental health teams.

Guardianship is something in between, but in my experience, the police service hear of this very rarely indeed – probably because by definition of it, patients are prepared to engage with it and considered able to live in an arrangement where their physical liberty is not totally restricted. It should be noted in particular, that guardianship is totally different to Community Treatment Orders, and should not be confused with it, although both are options for community care which impose restrictions or limitations of various sorts.

Under Section 7 of the Mental Health Act, a person may be placed in to guardianship upon the application an AMHP or the patient’s nearest relative if they have received the medical recommendations from two doctors. A criminal court can also instigate guardianship under section 37 of the Act, if two medical recommendations suggest it is appropriate after a conviction for an offence or a finding of the act being done.

A patient received into guardianship may be required by the guardian to do certain things: “reside at a specified place, attend specified places at times for medical treatment, occupation, education or training; to ensure access for any registered medical practitioner or Approved Mental Health Professional.”

TRANSFERS AND WARRANTS AND AWOLS

Where a patient is received into guardianship in one local authority, it may become necessary to transfer them to a new guardian in a new area, much like inpatients are occasionally transferred between hospitals. All of this is covered in s19 of the Act and if need be, that transfer can be effected by the use of reasonable force.

Where access to a premises is not enabled, a warrant can be sought under section 135(2) to force entry in order to transfer a patient under guardianship. << This is what the AMHP was asking for, in the example which gives rise to this post.

If a warrant is secured for this purpose, then the police will need to be involved because only the police can execute the warrant. Of course, any conveyance which is subsequently necessary, should be done in accordance with the Code of Practice which presumes ambulance transfer.

If a patient absents themselves from the care of the guardian, then they become AWOL for the purposes of the Mental Health Act and may be re-taken by a police officer, an AMHP or anyone authorised in writing by the guardian or the local social services authority. If entry to a premises must be forced, in order to re-take someone received into guardianship, then a warrant under s135(2) is required.

This is no different to the re-detention of an inpatient AWOL from hospital under the MHA.  Of course, guardianship being less restrictive on a patient’s liberty, having been re-detained and returned to the guardianship from which they were AWOL, they cannot be then compelled to remain there, unlike an inpatient under a section like 2 or 3.

REFERENCE MATERIALS

The Mental Health Cop blog won the Mind 2012 Digital Media Award, in memory and in honour of Mark Hanson.
The Awards celebrate the “best portrayals of and reporting on mental health in the media.”

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7 thoughts on “Guardianship

  1. Devil’s Advocate; An ungrateful relative who may be ‘Acting In Bad Faith’ could provide embellished/misinformation to police regarding the relatives mental health. Police on the side of caution may take the person in question for a mental health assessment. If that detainee is refused call to lawyer & refuses to see psychiatrist until call provided to lawyer, the medical staff may deem that as non co-operating and force the detainee to remove clothes, force them to take medications against their will. Think it doesn’t happen, guess again.
    Police need to ensure they are not taking the wrong person for a psychiatric examination. This article on “Guardinship” scares the hell out of me when I vision capable seniors.citizens attempting to defend themselves without a call to lawyer against someone presenting misinformation to police for personal gain, be it to gain control over the person’s estate, financial affairs, or have control over where they are to live and what medications they are forced to take.
    A citizen’s life could be adversely affected needlessly. Nothing like opening a can of worms, but if it gets people talking together in forums and Blogs I’m all for it, we all learn, I hope!

  2. If it gets people talking together in forums and Blogs … well, here goes. As a mental health service user, it comforts me that due to presumably to limited funds there are less psychiatric beds than many ‘carers’ and healthcare workers would like. I won’t get a knock on the door by the police and three people sent by my consultant psychiatrist if there aren’t any beds!
    It is, however, of concern that psychiatrists can control citizens in the community, through the police. What is the upper limit of the numbers affected other than the unsatisfactory criterion of their being deemed a ‘danger to themselves or to others’?

    1. “deemed a ‘danger to themselves or others'” there lies the problem, at least in Canada, not sure about policy where you are, here in Canada some provinces like British Columbia where I reside, police are not required to see a citizen do anything, they can just rely on information provided to them from a caller or rely on verbal information from another person.

      We take no issue with police involuntarily detaining and treating incapable citizens who may be at risk of harming themselves or others. Even if the police are unsure, and erroniously assume the person is incapable and a risk to self or others, the detainee (which could be capable and not at risk) could in fact be institutionalized and drugged because they refuse to meet with psychiatrist, (because medical staff refused them their requested call to lawyer to determine if detention is lawful and to inform lawyer where they are, and for lawyer to inform a family member to make arrangements for their (the deatinee) obligations in caring for family members etc.).

      I hear so often from police that it’s not a police decision to have the proposed patient detained and treated, that’s up to medical staff to decide, then police leave hospital and are finished with the person, not knowing what exactly happed to that citizen.

      No person with a mental illness, or a person being treated as such can be discriminated against. So when society allows criminals a call to lawyer without delay, and refuses detained citizens being held under mental health law their requested call to lawyer, then I see that as clearly discriminating against that person.

      Maybe to treat everyone as equal we should deny criminals their call to lawyer, but then what kind of Society do we want to live in.

      Please don’t misread this comment, Citizens at Risk of Harming Themselves or Others Must be Detained and Treated if Necessary. I did mention in my last post it’s a can of worms.

  3. I live in the UK and have had contact with more than one British police force in connection with the Mental Health Act. I should like to acknowledge firstly that the police officers I have met have almost without exception been very helpful and good humoured, despite their patience being occasionally tried). Given my respect for the police it is embarrassing to have had them involved. On one occasion I was watching TV and there was a knock on the door. I opened it to find two policemen, a psychiatrist who worked for my consultant, a social worker and a GP from a neighbouring town. The latter GP explained I didn’t seem to be quite myself. I replied that her observation surprised me since I didn’t believe we had met before. This she conceded but went on to assure me that she had read my file. That exchange was almost the full extent of the ‘assessment’ and I was left to be driven in a police car to a psychiatric ward (all obviously pre-arranged). The whole thing was farcical or would have been except that it was a waste of police time. (The waste of time they might have expected because on a previous occasion I had been escorted to hospital, just as reluctantly, by my community psychiatric nurse on the bus and over my entire history I have never physically resisted involuntary detention).
    I am not convinced that citizens at risk of harming themselves should always be restrained (but that view is probably too risky for professionals to abide by). I certainly agree that society has a right to protect itself from persons at risk of harming others. But then surely you might as well lock up everyone who has had a few drinks too many!

  4. Hi, I have always thought your posts were both thoughtful and thought provoking, as is this one. However one slight disagreement,you state that the situation described is no different to the AWOL of an inpatient from hospital. But such an AWOL patient would still be “liable to be detained”,this is not the case with a person under a Guardianship. Which is a bit weird as they can be compelled to return but not to stay? Unless they have also been made subject to the DOLS prevision of the Capacity Act. Alex Davis

    1. I can see the point you are making and I will ammend the wording to reflect what I meant – I meant “liable to be detained by the police in order to be returned.” You are obviously quite correct that they cannot be required to then remain detained. The wording was intended for the police officers managing a re-detetention, as opposed to the Guardian themselves keeping the person detained.

      Good point, well presented!

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