Judge: Upper Tribunal Judge Jacobs
Citation:  UKUT 125 (AAC)
This judgment considers the relationship between DoLS and guardianship. Mr M was in his early forties and was described as having mild learning disability and paedophilic sexual interests. He had previously set fires alight, been verbally and physically aggressive, hoarded materials relating to children, and sought to contact them by dropping notes in the street inviting them to contact him.
Mr M’s local authority guardian required him to reside in a residential home and meet with clinicians and therapists for treatment. He was also subject to DoLS which had been endorsed by the Court of Protection. Mr M contended that guardianship was no longer necessary because of the DoLS authorisation. He was said to have capacity to decide where to live but lacked capacity with regard to the level of supervision required to keep him and children safe. The professional view was that if discharged from guardianship he would try to leave and not return.
The First-Tier Tribunal rejected Mr M’s contention, deciding that guardianship was necessary in the interests of his welfare and that of the children with whom he sought contact. His appeal was dismissed by the Upper Tribunal where it was said that “there is a fine line” between guardianship and DoLS. Judge Jacobs accepted the following important differences between them, albeit that this list was not comprehensive:
“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.”
Accordingly, Mr M was to remain under DoLS and guardianship.
This decision confirms – if ever there was any doubt – that guardianship can be used alongside DoLS. With regard to the apparent differences between the regimes identified by Judge Jacobs, we would make the following observations. First, both DoLS and guardianship can have the effect of requiring someone to reside somewhere. The guardian’s power is exclusive, even to the Court of Protection; DoLS provides authority to deprive those lacking residential capacity of their liberty. Second, neither DoLS nor guardianship can authorise treatment, whether for physical or psychiatric ill health. Such treatment is governed by the MCA if the person lacks the relevant capacity: a guardian can require the person to attend a place for treatment but guardianship provides no power to treat. Finally, guardianship can clearly trump DoLS as the residence requirement is exclusive: so if DoLS is inconsistent with a MHA requirement the person is not eligible for it.
The list provided by the Upper Tribunal is of course not exhaustive. Other differences are that, for those with learning disability, guardianship (but not DoLS) requires the condition to be associated with abnormally aggressive or seriously irresponsible conduct. DoLS is only available for hospitals and care homes, whereas guardianship is not so limited and can be used elsewhere. The individual’s family has more powers under guardianship. For the nearest relative can veto it (subject to being displaced in the County Court), unlike DoLS (unless they have been appointed under a health and welfare LPA). Moreover, the nearest relative can order the person’s discharge from guardianship (with a responsible clinician having no power to bar it); whereas only the supervisory body or the Court of Protection can terminate DoLS.
The Upper Tribunal’s rejection of the argument that DoLS allows the home to prevent Mr M leaving does not – in our view – properly address the legal complexities that are in play here. A supervisory body has of course authorised the managing authority to deprive the person of their liberty so the person can be prevented from leaving. However, if they abscond, Parliament deliberately decided not to include a conveyance power within the DoLS authorisation (although some case law suggests that it is implied). MCA ss.5-6 can, of course, be used to exercise proportionate restraint to convey the person back if the statutory requirements are met, provided the conveyance itself does not constitute a deprivation.
The professional view on Mr M’s mental capacity is a somewhat bizarre finding which may have stemmed from the error of using a blank canvass (see CC v KK). Clearly, by virtue of the DoLS authorisation, he had been found to lack capacity to decide whether to be accommodated in the care home for the purpose of receiving the necessary care or treatment.
Finally, we should highlight the 2015 Code of Practice to the Mental Health Act 1983, which states that:
“30.12 Where an patient aged 16 or over is assessed as requiring residential care but lacks the capacity to make a decision about whether they wish to be placed there, guardianship is unlikely to be necessary where the move can properly, quickly and efficiently be carried out on the basis of:
30.13 But guardianship may still be appropriate in such cases if:
• there are other reasons – unconnected to the move to residential care – to think that the patient might benefit from the attention and authority of a guardian
• there is a particular need to have explicit statutory authority for the patient to be returned to the place where the patient is to live should they go absent, or
• it is thought to be important that decisions about where the patient is to live are placed in the hands of a single person or authority – eg where there have been long-running or particularly difficult disputes about where the person should live.
30.14 It will not always be best to use guardianship as the way of deciding where patients who lack capacity to decide for themselves must live. In cases which raise unusual issues, or where guardianship is being considered in the interests of the patient’s welfare and there are finely balanced arguments about where the patient should live, it may be preferable instead to seek a best interests decision from the Court of Protection under the MCA.
The question of the interaction between the MCA and the MHA is one that continues to vex – and to no obviously sensible aim as regards the delivery of proper clinical care. We will cover in the next issue the decision in A Local Health Board v AB  EWCOP 31 which arrived too late for us to consider fully for this issue, but illustrates this point in spades.