It says a lot about the readers of this blog, that one of the most popular posts I’ve written is an interminably long, three-post, technical discussion of whether guardianship under the Mental Health Act 1983 would be preferable for safeguarding the human rights of people deprived of their liberty than the Mental Capacity Act 2005. The original posts can be found here, but they are getting a bit creaky and out of date and contained some inaccuracies. So, given the debates around whether DOLS need replacement are still alive and kicking, I present to you: DoLS v Guardianship – redux (if you can’t download that, drop me an email). Here’s the summary:
This is a summary of the lengthier, referenced, discussion that follows of whether or not guardianship would be a preferable alternative to the deprivation of liberty safeguards (DoLS).
The criteria for detention under the DoLS may be preferable to those for guardianship as a) guardianship uses an outmoded ‘status’ approach, whereas the MCA takes a ‘functional’ approach to a person’s capacity to make decisions about care and treatment; b) the DoLS ‘best interests’ criteria are better defined than guardianship’s ‘welfare’ requirement, they make explicit requirements for proportionality, and they require consultation with a wider range of parties. Furthermore, guardianship cannot as yet be applied to people with learning disabilities who are not abnormally aggressive or seriously irresponsible, which is a significant shortcoming in comparison to DoLS. However, guardianship is much more flexible than DoLS with respect to the location of the detention (DoLS being restricted only to hospitals and care homes). Furthermore, guardianship creates no authority to consent to medical treatment, to sign tenancies, or to address any other financial, care or welfare issues not contained within powers to require a person to live at a particular place, to attend medical appointments or training/educational activities, or to allow access to them by health and social care professionals. However, the MCA could be used to ‘top up’ these limited powers.
Guardianship powers – as a MHA regime – would ‘trump’ any decisions made under the MCA, DoLS or by deputies. This can bring the regimes into conflict in horribly complicated ways. In light of recent Strasbourg rulings, it is hard to see how a guardian’s powers don’t result in a deprivation of liberty – as Richard Jones maintained back in 2007 – yet a guardianship order doesn’t authorise this deprivation of liberty. This deprivation of liberty can only be authorised under the MCA, and the DoLS qualifying requirements must be met. This means that if guardianship is imposed upon a person who has capacity, or a guardian makes a placement decision which is not in a person’s best interests, or which conflicts with the decisions of a deputy or a person with power of attorney, then it will result in a deprivation of liberty which cannot be authorised by any obvious means. There is no clear remedy for this situation. The solution, in my view, is to ditch the guardianship order entirely and apply the DoLS directly or go to the Court of Protection.
In some respects, guardianship offers families much greater leverage than the DoLS. Because the appointment of the nearest relative under the MHA is ‘automatic’ and not on the basis of selection, there is less scope for avoiding appointing relatives who object to the detention – which is a risk under the DoLS. Under the DoLS, concern has been expressed that supervisory bodies may avoid appointing family representatives who oppose the detention; there are weak safeguards against this. Furthermore, detention under the DoLS can be authorised in the face of opposition from the family representative, who must apply to court under the appeal mechanism. There are many reasons to believe this may be difficult for some representatives. Under guardianship, the nearest relative can successfully oppose an application for reception into guardianship, or request a discharge. If the local authority wish to displace the nearest relative, they must apply to court to do so: disputes in cases like Neary v Hillingdon would be likely to come to judicial attention far earlier under this regime.
Guardianship has a much stronger framework for review and ongoing monitoring of the conditions of detention by the local authority than the DoLS do; this is a significant advantage. As things stand, both frameworks are very weak for ensuring detainees’ Article 5(4) rights to appeal are upheld. This is because unlike detention under Part II MHA, there is no automatic referral of the detention to either a court or tribunal. Because the populations who are likely to be subject to either regime are likely to require help (sometimes considerable) accessing their right of appeal, both regimes rely upon other parties helping them to appeal. In both cases, the parties who could assist them in this may have conflicts of interest in doing so where they support the detention but the detainee objects. Independent advocacy could remedy this, but the duty to refer is weakly enforced for the DoLS and IMCAs do not appear to be fulfilling their statutory obligations under s39D MCA.
There is a much weaker obligation to appoint an independent advocate under the guardianship regime. An automatic referral to a court or tribunal has been recommended by many, and whilst I support this recommendation it would undoubtedly increase the costs associated with community based detention by increasing the number of appeals. This would undermine the case that an amended guardianship regime would be cheaper than DoLS, although it would be more likely to fulfil our obligations under the European Convention on Human Rights (‘the Convention’). I have also explored the differences in the powers of tribunals and the Court of Protection in determining appeals. I argued that the broader powers of the Court of Protection may be desirable in certain community based contexts, and that a key weakness of guardianship is the lack of any accessible remedy to challenge the decisions of guardians. Another shortcoming of guardianship is that it is incumbent upon the person subject to guardianship that it is not necessary for them to remain under guardianship (ie. they carry the burden of proof to demonstrate the case for discharge). This was found to be incompatible with Article 5 ECHR for the purposes of detention under the MHA, and would need to be amended. The question of the ‘burden of proof’ for s21A MCA appeals in the Court of Protection is somewhat uncertain as it is not specified in statute, rules or regulations (the same goes for many procedural aspects of applications under the MCA.
I also discuss whether guardianship might carry the stigma of the MHA, and conclude that there is too little evidence on this point to say. The language of guardianship might be slightly more attractive to care providers and public authorities, but it is likely to be repellent to those within the disability rights movement. The monitoring arrangements for both guardianship and DoLS are currently pretty abysmal, but are (hopefully) improving. The UK is likely to be in breach of its duty to monitor places of detention in relation to people who are deprived of their liberty in placements which the CQC cannot visit in the course of its compliance inspections, most notably supported living but also Extra Care Housing, adult placement schemes and so on. I argue that guardianship may have a trick up its sleeve in relation to this issue, as CQC can visit people who are subject to guardianship provided they are granted access, and guardians have the requisite powers to grant them access. Finally, I argue that neither scheme has any answers for the problem of widespread, unlawful, de facto detention. Indeed, there is no clear duty upon anybody to seek the authority of a guardian, unlike the DoLS where the managing authority must seek authorisation from the supervisory body. This is the single biggest shortcoming of the DoLS, and neither framework has any solution.