KD v A Borough Council and others

Summary

KD had Korsakov's Syndrome and, following his detention under the Mental Health Act 1983, had been subject to guardianship since 2012. He was required to reside in a care home with 24 hour supervision and support where he was not free to leave and not permitted to go out unless accompanied by a member of the care staff, with access to the community is limited by their non-availability. He sought to be discharged from the guardianship order on the basis that it was not necessary because DoLS was less restrictive and guardianship could not authorise his deprivation of liberty.

This is a significant decision for those involved in guardianships cases that this mere summary cannot do justice to. But some of the passages apply to DoLS cases, irrespective of whether the person is under guardianship. The following points are particularly noteworthy:

1. The concept of "deprivation of liberty" in breach of Article 5 is wider or arguably wider that that of "detention" under the MHA (para 29).
2. The guardian's power to return the person to his place of residence has the effect of a requirement or an injunction preventing him from leaving (para 30). And such a power is a more readily available, effective and sensible means of enforcing the result that the person lives there than an injunction against that person from the Court of Protection (para 31).
3. A deprivation of liberty during guardianship should be authorised under the MCA (where applicable).
4. A standard authorisation under DoLS can provide for it to come into force at a time after the time at which it is given. And the Court of Protection can authorise any deprivation from a date in the future (para 43).
5. The reasoning in C v Blackburn and Darwen Borough Council [2011] EWHC 3321 (COP) was developed in terms of what should happen where there is a dispute over residence with a guardian (paras 45-54).
6. A useful checklist was designed for tribunals to approach similar guardianship / Mental Capacity Act 2005 cases.

This decision illustrates how investigatory the role of the First-Tier Tribunal (Mental Health) can be with regards to the interface with the 2005 Act. The inference that the effect of guardianship powers is to prevent the person from leaving their place of residence is of particular interest as the issue has been the subject of much debate over recent years.