Quick Guide – Guardianship

  • This guide is an attempt to “operationalise” complex issues and you should refer to your area’s policy and your supervisors for specific local requirements.
  • First of all – be clear what the action the police are being required to take.
  • Usually one of three things:
  • 1)  Re-detain someone who is AWOL from Guardianship; OR
  • 2)  Assist in the transfer of someone from one guardian to another.
  • It may be necessary to execute a warrant under s135(2) in order to do either of those things.
  • Confirm that the police are being required to do something for which there IS a power – do not assume that mental health professionals understand what “AWOL from Guardianship” means.
  • Call an ambulance to EVERY detention made where you intend to re-detain or transfer someone under Guardianship.
  • Involve police supervisors in discussion about any future safeguarding.
  • Guardianship is not about having full coercive authority over patients.
  • Patients retain legal autonomy about many things and Guardianship fails as soon as patients start to object to it and withdraw consent.
  • Once a patient who is returned or transferred is delivered to the Guardian – nothing in law stops them leaving the premises again.
  • Repeated AWOLs may indicate the placement is breaking down and / or that a different kind of legal order is appropriate, for example a DoLS order.
  • Guardians have three powers under s8 whilst someone is resident:
  • 1 – to require the patient to reside at a specified place; << “reside”, not “remain.”
  • 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.
  • NB: “AWOL” cannot just be that patients have left the place of residence – they are allowed to do so.
  • It must either include that they left in a way which is clearly indicates permanent absence will follow, OR
  • They left earlier that day or the previous day and have not returned to “reside” there.

More detailed guidance on Guardianship and the legal authority of MHA Guardians.

Winner of the President’s Medal, the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award


All opinions expressed are my own – they do not represent the views of any organisation. (c) Michael Brown, 2013

I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current.  Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.

Government legislation website – www.legislation.gov.uk