Sometimes it will not be necessary to detain someone for assessment or treatment in hospital. The Mental Health Act allows for individuals called 'guardians' to be appointed. These are people with special legal powers to make some decisions on behalf of a person with a mental disorder.
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The Mental Health Act 1983 and guardianship
A guardianship order is not the same as a hospital section made under the Mental Health Act. Guardianship orders and sections are similar in that people who are the subject of a guardianship order may have decisions made for them that they might not agree with. However, it can be more pleasant and less restrictive for the person to remain living where they are than to go into hospital.
Doctors should consider whether guardianship is more appropriate than detaining someone in hospital.
A guardian has three powers.
- They have the right to decide where the person lives.
- They can require the person to attend specified places for medical treatment, work, education or training.
- They can demand that a doctor, approved mental health professional (AMHP) or other specified person is able to visit the person where they live.
The decisions made by a guardian must be the least restrictive option for the person with a mental disorder, and must always be made in the person's best interests. The guardian cannot authorise medical treatment and has no control over a person's money or property.
Except for the residence power, the guardian cannot legally force a person to do something they don't want to do. The success of being a guardian therefore depends a lot on the quality of the relationship between them and the person with a mental disorder. The residence power allows a guardian to take the person to the place they are specified to live in, if they will not go there voluntarily.
The process of applying for guardianship is similar to having someone detained under Section 2 of the Mental Health Act. An AMHP or the person's nearest relative can apply for it if the person is placing their own health at risk, or is a danger to themselves or others. An AMHP cannot make an application for a guardianship order if the nearest relative does not agree to it.
In most cases the local authority is named as the guardian, but a friend or relative may also be appointed. A guardianship order lasts for six months in the first instance. After this, it may be renewed for a further six months, and then for a year at a time.
Legal and financial advice
More information on legal and financial issues for those affected by dementia, including sources of help and support.
Objecting to a guardianship order
A guardianship order cannot proceed if the nearest relative objects to it. If the objection is raised when the order is being applied for, it will not go ahead. Once an order has been made and a guardian has been appointed, the nearest relative can still object to it if they do not think that it is necessary.
If this happens, the matter will be taken to a tribunal. The tribunal can decide to either end the guardianship order or not to end it, or they can make certain other orders.
There are some circumstances in which the tribunal must agree to end the guardianship order. This will be if:
- at the time the tribunal considers the case, the person no longer has a mental disorder
- the guardianship order is not necessary for the welfare of the person or for the protection of others.
The key roles
The nearest relative is generally the person who comes first in the following list: husband, wife or civil partner; son or daughter; father or mother; brother or sister; grandparent; grandchild; uncle or aunt; nephew or niece; someone (not a relative) that the person has lived with for at least the last five years.
Independent mental health advocate (IMHA)
A person detained in hospital under the Act has the right to access an independent mental health advocate who will explain their rights and how they can challenge their detention. Advocates have access to the person's medical records and operate independently from the hospital.
Approved mental health professional (AMHP)
A professional who has had special training to help people in relation to the Mental Health Act. They might be a social worker or mental health professional (such as a community psychiatric nurse).