NM is a man in his forties with diagnoses of mild learning disability (with behavioural difficulties) and paedophilic sexual interest. He actively sought to make contact with children. He was subject to guardianship (under MHA) requiring him to live in a particular home and to meet with clinicians and therapists for the purposes of treatment. He was also subject to DOLS (under MCA), confirmed by the Court of Protection.
It was argued that the guardianship (MHA) was not necessary as the interests of NM and the public were sufficiently protected by the DOLS (MCA). He would be prevented from leaving the home without permission and so could not abscond. The MHA tribunal upheld the guardianship. The patient appealed citing the above ground and another relating to the tribunal's findings on the patient's capacity.
The appeal was dismissed.
The judge dealing with the appeal agreed with the Council’s assessment of the differences between guardianship and DOLS, with the caveat that the list might not be comprehensive:
16. Although there is a fine line between the guardianship and the DOLS, there are important differences.
- DOLS assumes that the person lacks capacity to make the relevant decisions in their best interests. Guardianship is not based on an assessment of the person’s best interests.
- DOLS cannot impose a requirement that the person reside at a particular address, whereas a guardian can. And, I add, section 18(3) allows this to be enforced by taking the person into custody and returning them to their required residence.
- DOLS cannot authorise anyone to give, or consent to, treatment for someone with a mental disorder. That is the effect of section 28 of the Mental Capacity Act 2005 read together with Part IV of the Mental Health Act 1983 and the definition of ‘patient’ in section 145(1) of that Act.
This decision confirms that when considering whether guardianship (under MHA) is necessary in the interests of the welfare of the patient or for the protection of other persons, as required by s74(b), this might involve consideration of whether DOLS provides sufficient protection for the patient and/or others. He goes on to say at paragraph 20:
“Ideally, this requires the tribunal, in a case where the issue arises, to be alert to the potential relevance of a DOLS to the issues it has to decide under the Mental Health Act. … Nor… is it always necessary for a tribunal to consider each difference; that will depend on the circumstances of the particular case. For example, guardianship may not be necessary for a person who is physically unable to leave a care home, whereas this it is not necessarily the case for a person who has the will and ability to abscond…..it is necessary to take account of the practical effect of a DOLS.”
The MHA tribunal had found that that the patient would not remain in the home without guardianship. The key was the power of the guardian to stipulate not just that it was in NM’s best interests to remain at the home, but that he was required to do so. Guardianship also carries with it the power to ensure his return there, unlike DOLS.
The following paragraphs from Judge Jacobs’ decision are reproduced in full:
26. I do not accept the argument put by Mr M’s solicitors that a DOLS is sufficient protection as it allows the home to prevent Mr M leaving. That argument does not deal with the possibility that he may abscond, especially given his wish to live elsewhere and the tribunal’s findings that he is devious in the pursuit of his own objectives. This is a limitation inherent in the nature of a DOLS; nothing in the Court of Protection’s declaration could have affected this reasoning.
28. I accept the solicitors’ argument that paragraphs 26.10 and 26.13 of the [old] Code of Practice are relevant. But all they say is that guardianship and a DOLS may or may not both be appropriate, depending on the circumstances of the case. Those paragraphs do not dictate, or even point towards, a particular outcome. That was for the tribunal to decide.
29. Standing back from the detail of the arguments and the complexity of the legislation, the two Acts deal with different issues. The Mental Capacity Act deals with the person’s best interests, whereas the Mental Health Act deals with protection of the patient and the public. Each is subject to different adjudication procedures before different judicial bodies. It is fortunate that the flexibility of the tribunal system permits judges to sit simultaneously in both the Court of Protection and the Upper Tribunal, as Charles J is doing at the moment in the KC case, which allows a coordinated approach to their respective issues. That was not possible in this case. The First-tier Tribunal dealt properly with the issues within its jurisdiction, and in particular with the protective role of guardianship, which is why I have dismissed the appeal.
Read the full text of the judgment on Bailii