Quick Guide – Guardianship

  • This quick guide is an attempt to “operationalise” some complex issues but you should refer to your own force policy and your supervisors for specific local requirements.
  • INITIAL ACTION
  • 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.
  • SUBSEQUENT ACTION
  • 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.
  • LEGAL REMINDERS
  • 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.

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