Guardianship and Learning Disabilities

A few months ago, my first incident in fifteen years involving “Guardianship” prompted a blog for those who may also never have heard of it.  As is the case with these things, I’ve now had several incidents in the intervening months.  Amidst representations I’m hearing that the police are probably going to get more and more requests to support various forms “community coercion” in the form of guardianship orders, community treatment orders and others, I want to offer some more thoughts on Guardianship after I found my officers being asked to do things that I really wonder about.

If you didn’t read my original post on guardianship or have not previously heard of it, give it a quick whirl before you read on.  It’s not a long post and just covers the basics of what Guardianship is and some of police powers around it.  This post offers some additional thoughts about what legal authorities Guardians actually have over the patients placed in their care and what this might mean for the police if we are called.

THREE AUTHORITIES

The Guardian’s rights or authorities are covered in section 8 of the Mental Health Act 1983 –

  1. To require the patient to reside at a specified place;
  2. To require the patient to attend at specified places at specified times for the purpose of medical treatment, occupation, education or training;
  3. 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 are further relevant comments to understand about it, from within the Code of Practice and the Reference Guide to the Mental Health Act:

Recent events for us involved a young man with learning disabilities and autism.  Care being provided by a Guardian in a residential care home for young people with similar backgrounds, he was there under s7 Guardianship.  Of course, such patients are not “detained” – these orders allow a level of autonomy and personal freedom.  If the patient concerned wants to go to the shop, spend money or visit the pub, they may do so.  Of course, it may be the case that a Guardian has certain ‘rules’ to the operation of that residential setting into which the patient enters as something short of a contract, which may also govern certain behaviours.  For example, it may be that the home operates a curfew for those who go out or that it has restrictions of usage of alcohol or the number / times of visitors – all of this is very reasonable and many residential settings of various kinds do this.  It contributes to effectively discharging the duty of care owed.

But what if the person who wants to go and do something which a Guardian may think is unwise?

This could be for any number of reasons:  maybe the person is intent on going to a place where they would be at risk of becoming involved in crime, whether as a victim or as an offender.  The young man I am thinking of here, had a history of violence towards his family – what if he went out with the intent of visiting them?  Should the Guardian stop this?  More importantly, CAN the Guardian stop this?!

AWOL FROM GUARDIANSHIP

Well, the powers of the Guardian outlined in section 8 don’t seem to suggest that they can.  At what point does someone become AWOL?  It is not specified.  Maybe if a person packed a bag and left the place of residence, uttering words that indicated a permanence in their decision, you could almost immediately regard them as AWOL.

What if the said they were going to the shop to buy something?  Probably not because guardianship does not prevent this, according to section 8.  What if it was suspected without compelling evidence that the “shop” was in a town twenty-odd miles away?  Does the patient need permission?  Well, not according to section 7 or section 8, but local procedures may dictate otherwise.

What do those local procedures or policies mean for the exercise of police powers?  Well, the situation that prompts this blog was not ambiguous:  a young man who has autism and “mild” learning disabilities left his residential care home by indicating he was going to visit another town.  Staff knew he was unhappy about living with them and that he did not want to live where he’d been placed.  Staff were reporting him to the police as being AWOL, even thought his absence was minutes old and claiming that the police were under a “duty to return him”.  They were also claiming that they were not entitled to return him.  << This is another example of the “policy as law” fallacy: the presentation of an organisational policy as being the law of the land, when in fact the opposite is true:

If there actually is a legal power to return from him on the basis of being AWOL, then section 18(4) MHA allows it to be exercised by “any officer on the staff of a local social services authority, by any constable, or by any person authorised in writing by the guardian”, which presumably will and which certainly can include staff employed in a care home where people subject to guardianship reside?  The bigger question was, “does this power exist now?”, minutes after he has left the home?

It’s potentially unclear: of course, he’s expressed views that he doesn’t like living where he is and wishes to be elsewhere, but there are no legal conditions which can prevent him going out or getting on a bus.  Whether he was in fact AWOL seems uncertain – he is not detained to the place of guardianship, the Codes and Reference guide make it clear that liberty is nowhere near as restricted as a patient in an inpatient ward, under s2 or s3.

FAILURE DEMAND

For whatever reason and not a matter for the police: this young man’s placement had broken down.  Over a succession of weeks, there was damage caused to the care home, assaults on staff and repeated, deliberate attempts to access the nearby motorway network to promote arrest.  All the young lad would say on arrest is, “You going to get me somewhere else to live? Can I go home, I don’t like it there.”  It was widely regarded that his “offending behaviour” was deliberate action to promote a police response because he hoped the police would pull levers the social care system could not or would not pull.

Of course, by the time staff are being assaulted and the hard-shoulder of Europe’s busiest motorway is being wandered on, police hands were fairly forced, especially because various attempts to respond to such offences without arrest and by working with social services were not bringing about any change – he was pulled off the motorway twice before he was finally arrested on the third occasion, but imagine if by the third attempt he’d been killed, hit by an HGV at 70mph?

The fear had to be: someone is going to get seriously hurt unless “something different” happens.

SOMETHING DIFFERENT

So what can you do?  Well, you can either seek attempts by social services to look at the failing placement in the context of events and come up with a new approach but returning him to the care home and chatting with managers was getting us nowhere.  You could prosecute in the criminal courts for offences committed in the hope that the impact of the justice system will bring about various changes, either by motivating a change in behaviour or by the imposition of court-imposed measures which compel change.  This could be a bail conditions, a hospital order or other kinds of measures.

This gets you straight back into the “public interest” test – do we really want to see a young man with a host of challenges in his life, facing prosecution in a criminal court when really, he’s trying to get a more satisfactory placement and doesn’t understand the economic and other practical realities behind why he can’t?  …  I certainly don’t – especially when it was obvious that he was attempting to motivate change in a system that was failing to deliver what he needs and which was moving at a slow pace.

In one incident on a Thursday, I remember being quite relieved to hear that an “urgent meeting” was being arranged for all of this … “for Tuesday of next week”.  It reminded me that “urgent” in policing and social care can mean very different things.  Urgent to the police means “within minutes” … “within hours”, at most.

By the fourth phone call in 24hrs about ongoing offending and risks to the lad himself, after having had several calls the week before, we had become duty bound to prevent him wandering on the motorway so he didn’t get killed because everytime he tried to provoke arrest, he took greater and greater risks with his and other people’s personal safety.

But this is what you can’t do:  pretend that Guardianship affords you powers that simply don’t exist and keep ringing the police to return people for being AWOL who are simply not AWOL at all.  And what you can’t do in police custody after arrest: is to promise to return the lad to the home, still subject only to s7 guardianship, and change the door code for exit so he can’t leave.  Because then you’ve created a de facto detention which breaches various laws.


IMG_0053IMG_0052Winner of the President’s Medal from
the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award.


 

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8 thoughts on “Guardianship and Learning Disabilities

  1. in the US, guardianship can be bestowed upon an individual who is friend or family to the patient. however, in general, it is limited to the power to control all bank accounts, deposits, and paying bills. it can also be used for arranging living quarters that are appropriate and to monitor and even participate in medical appointments and the kids of meds that will be prescribed. however, that is pretty much the limit, and if the patient refuses to engage in therapy or attend appointments, or take meds, there really is nothing the guardian can do about these issues.

    also, in order to be named guardian by a court, you must be able to prove with documentation both anecdotal and medical that the patient is no longer able to manage their money, accounts, and medical needs. also, just being named a patients guardian does not permit you to manage their money, accounts, bills, and medical needs. a person named as guardian will also need to become power of attorney (either financial and/or medical healthcare attorney) and will also be required to become a separate kind of power of attorney by all banks, and other financial institutions according to each institutions requirements. so that is to say, you must first be named guardian. then you must be named power of attorney both medical and financial, then you must apply to each banking agency to be financial power of attorney in their bank according to their specific requirements. also, if the person is elderly or disabled, they are most likely on Social Security, and you will also have to apply to Social Security to have access to their funds as a representative payee.

    It is extremely difficult to be given carte blanche access to a patients funds, accounts, all monies and bills. it is even more difficult to be given this access to medical information of any kind, much less power over arranging and handling appointments.

    for a short time, i was named all of the above for a friend of mine. although i was already her power of attorney financial and healthcare, i was still unable to pay her bills, use her bank accounts, access her Social Security funds. it took me about 3 months to be able to have complete access, by becoming power of attorney at each financial institution, by becoming a rep payee for Social Security.

    Additionally, if there is no family or friend to act as a patients guardian, the state will appoint one from its own department which is dedicated to providing guardian for those who have no volunteers. It is the court appointed guardians job to make sure the funds stay available, the accounts and bills stay managed, and that the patient has some funds available for daily living expenses, like clothing, hygiene, tv, etc.

    it sounds like guardianship in Canada(?) and the US are extremely different processes,

    1. Thanks for this very interesting – guardianship in the UK is also very different to the US, and not about taking control of people’s money. It is about providing a roof and a broad framework within which they can live fairly autonomously.

  2. the legality of returning/preventing leaving would be dealt with by the care home applying an urgent deprivation of liberty safeguarding authorisation and and requesting assessment for a Standard Authorisation. This would give 7 days of ‘holding power’ as long as 18 yrs or above, has a mental disorder, lacks capacity to decide where resides and it is in his/her best interest. No definite power of return but can run alongside Guardianship which does have power to return.

  3. Thanks for this post – confirms my concerns that Guardianship is *dead dodgy* and will very usually equate to de facto detention in the community. One option for police, a big tongue in cheek, is to investigate the care home and the guardian for false imprisonment… I am only half joking – if they are detaining somebody without the relevant powers…

    So, guardianship is a big mess. It is a relic of a much older system, created in the early 20th century for the delightful purpose of preventing people with learning disabilities of procreating – it was seen as more humane than sterilisation, which was the other mooted option. In the 1980’s, there were concerns that it was paternalistic and overbearing, so the powers were stripped right back, and – critically for your story here – it can almost never be used for people with learning disabilities as they’re excluded from the MHA definition of mental disorder, unless it’s associated with ‘abnormally aggressive or seriously irresponsible conduct’.

    Anyhow, let’s assume your man meets this definition – you’re asking the right question – what’s the scope of the guardian’s powers? Not detention, that’s for sure. But here’s the thing, a series of cases in 2012 from the European Court of Human Rights (Stanev v Bulgaria; DD v Lithuania; Kedzior v Poland) found that where a person was placed in a social care facility by their guardian without their consent, and where the person’s coming and going from that institution was subject to the institutional authorities’ permission, they were deprived of their liberty. Here’s a blog post on these cases: http://thesmallplaces.blogspot.co.uk/2012/10/thank-goodness-for-strasbourg-kedzior-v.html

    Now, in your description, I find it very hard to see how this man is not deprived of his liberty. He is expressly saying he does not want to live in the home but he’s being made to remain there. Within minutes of his absence, the police are called. There is a really crappy ruling called C v Blackburn and Darwen Borough Council [2011] EWHC 3321 (COP) about a man in similar circumstances to this, where the court decided he was not deprived of his liberty because he had nowhere else to go. But I’ve yet to meet a lawyer who thinks this judgment is sound, and it absolutely conflicts with the ECtHR authorities from 2012. It seems to me to overstretch what the Court of Appeal authorities have said in P & Q, where it’s very clear that objections and conflict do indicate deprivation of liberty. Nothing in Cheshire contradicts that.

    So if this guy is de facto detained, some (Richard Jones) have suggested that Guardianship could contain enough safeguards to be Article 5 compliant (although, I think he means with some legal adjustments, but I haven’t got his book to hand). Personally, I don’t think it is. Firstly, parliament never bestowed powers of detention on guardians, and the courts have previously held that you can’t invent powers of detention where parliament hasn’t created them. Secondly, the only tribunal he will have access to will consider whether he should be subject to guardianship, not whether he should be detained, and in Stanev it was held that the issue of detention must be specifically examined – not just the issue of guardianship. Thirdly, the burden of proof will be on him to prove that he should not be subject to guardianship – and the courts have previously held that such a burden of proof in the context of detention violated human rights. Fourthly, the degree to which a person subject to guardianship is assisted to get to court is limited in contrast with detention under s2 and s3 MHA, and even in contrast with the crappy old DOLS – there’s no duty to refer this to court, no duty to refer him to an advocate, and no duty for an advocate to help him to appeal.

    One option might be for you to make a 3rd party referral to the DOLS team, to assess whether he is deprived of their liberty. If they’re worth their salt, I’d suggest they’d find that he is, and that would create a means for him to take his case to the court of protection under s21A MCA. The court couldn’t actually discharge him from guardianship or override the guardian’s decision, but if they found that the placement wasn’t in his best interests it would certainly lend real pressure to the case that the placement should be re-examined. It would also be an unholy legal mess, but that’s the DOLS for you…

  4. A situation I have been dealing with today – care home “we have a patient under a Guardianship Order who has booked a holiday abroad, due to leave in two hours, and both us and the Guardian Order holders do not believe he has the capacity to go abroad, he will be in danger if he does so, so we are just giving you a heads-up that we will most likely need to report him to you to return him to us”.

    After a lot of to-ing and fro-ing between the countless books, and lots of Googling, I found this…

    “The guardian’s power to return the person to his place of residence has the effect of a requirement or an injunction preventing him from leaving (para 30).” (KD v A Borough Council 2015).

    This however doesn’t make it any clearer to me whether there are any means by which the guardian can prevent someone from leaving?

    Any thoughts?

    1. Guardian can’t stop someone leaving the premises, but can return them if they are AWOL. Going abroad without proper amendment to the Guardianship Order would amount to AWOL so they can stop him getting in the plane or ask others to help them do so. Once returned, there is no power to stop that person walking out of the building as soon as they’re back on it and trying again. They’d need a full MHA to impose any further restriction.

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