Guardianship under the Mental Health Act: section 7

What is guardianship under the Mental Health Act?

Guardianship under section 7 gives a guardian legal authority over three parts of someone's life in the community. The guardian can say where they live, and where they must go for treatment, occupation, education or training. They can also require access for a doctor, an AMHP or anyone else they name (s8(1)). The Code calls it an authoritative framework for working with someone with a minimum of constraint, so they can live as independently as possible.

It's led by social care, not health. The guardian is usually the local authority, but it can be a private guardian the council approves, often a relative. It's easy to forget it exists, so it's worth knowing well enough to spot when it fits.

Criteria for guardianship

An application can be made for someone aged 16 or over on two grounds (s7(2)):

• A mental disorder of a nature or degree that warrants reception into guardianship.
• Necessity. Guardianship is necessary in the interests of their welfare, or to protect other people.
• Learning disability counts only if it's associated with abnormally aggressive or seriously irresponsible conduct, as for s3.

There's no appropriate medical treatment test, and they don't need to have been detained first. The AMHP and the doctors should still ask whether something less restrictive, such as care under the MCA, would do the job (Code 30.10).

What can a guardian require? The three powers

• Where they live. The guardian decides, and that decision outranks an attorney or deputy. While a residence requirement is in force, the Court of Protection can't decide where they live either.
• Attending for treatment, occupation, education or training, at set places and times. Nobody can use force to take them there.
• Access. Doctors, AMHPs and others the guardian names can see them where they live.

If they leave the place they're required to live, they can be taken into custody and returned (s18(3)). The same power can take them there the first time, if they won't or can't go themselves (Code 30.28).

What guardianship can't do

• Treat without consent. It gives nobody the right to treat them, or to consent on their behalf (Code 30.6). Treatment needs their consent, or the MCA if they lack capacity for that decision.
• Deprive them of liberty. The residence power can't be used to confine someone (Code 30.31). If a person who lacks capacity needs to be deprived of liberty, that needs DoLS in a care home or hospital, or the Court of Protection elsewhere.
• Hold someone who won't cooperate. If they consistently resist the guardian, guardianship probably isn't the right framework, and it should usually end (Code 30.37).

How to apply for guardianship: step by step

1. The AMHP or the nearest relative makes the application, on G2 or G1. In practice it's almost always the AMHP.
2. Two doctors give medical recommendations, together on G3 or separately on G4. At least one must be s12 approved.
3. The application goes to the local authority within 14 days of the last medical examination (s8(2)).
4. The local authority accepts it on G5. Guardianship starts when it's accepted, not when it's signed.
5. A care plan should go with the application, setting out what the guardian will require and who will provide each service (Code 30.20 and 30.21).
6. A private guardian must appoint a nominated medical attendant, a doctor who takes on the medical side (Code 30.25).

How long does guardianship last?

Up to 6 months at first, then 6 more, then a year at a time (s20). To renew it, the responsible clinician, or a private guardian's nominated medical attendant, examines the person in the last two months of the period and reports on G9.

The local authority must consider discharging the person when it gets that renewal report (Code 30.19).

Ending guardianship: discharge and the tribunal

• Discharge. The responsible clinician, the local authority or the nearest relative can end it at any time (s23). The RC can't bar a nearest relative's discharge from guardianship, as they can for a detained patient.
• The tribunal. The person can apply once in the first 6 months, then once in each renewal period.
• Admission to hospital. Guardianship carries on if they're detained under s2 or s4, but ends automatically if they're detained under s3 (Code 30.36). With the local authority's agreement, they can be transferred from guardianship to hospital on s3 using G8.

Guardianship or a CTO?

The Code's rule of thumb (figure 19): if they may need to come back to hospital quickly for treatment, think CTO. If the issue is how and where they live, think guardianship.

Guardianship or the Mental Capacity Act?

If someone lacks capacity to decide where to live, a move into residential care can often go ahead under s5 of the MCA, or with an attorney or deputy. If they'll be deprived of liberty there, it also needs DoLS or a court order. Then guardianship is unlikely to be needed (Code 30.12).

Guardianship still helps when you need clear authority to bring someone back if they leave. It also helps when there's a long-running dispute about where they should live, or when a guardian's authority would help for other reasons (Code 30.13).

Guardianship orders under section 37

A court can make a guardianship order instead of a hospital order, for someone aged 16 or over. They must be convicted of an imprisonable offence other than murder, or found by magistrates to have done the act (s37(3)). The local authority or named guardian must be willing to act (Code 30.38).

The nearest relative can't discharge a guardianship order, but can apply to the tribunal in the first 12 months and once a year after that.

A worked example

Guardianship can fit, if she's likely to accept a guardian's authority when she's well (Code 30.9 and 30.31). It can require her to live at the hostel, attend the day service and let her care coordinator visit, and if she leaves she can be brought back. It can't make her take medication. If the real worry were a relapse needing urgent treatment, a CTO after a s3 admission would fit better.