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.
The Guardian’s rights or authorities are covered in section 8 of the Mental Health Act 1983 –
- To require the patient to reside at a specified place;
- To require the patient to attend at specified places at specified times for the purpose of medical treatment, occupation, education or training;
- 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.
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.
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.
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.
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