Mental incapacity: residence, care and contact

The Mental Health Act 1983 (MHA) sets out various routes by which decisions may be taken on behalf of an individual who lacks capacity, including guardianship and supervised discharge with aftercare support.

Guardianship

A social services authority may receive a patient into guardianship under s 7(2) of the MHA, and on the written recommendation of two medical practitioners. Once appointed, the guardian has certain statutory powers over the patient. The core powers are contained in s 8(1) MHA:

(a) the power to require the patient to reside at a place specified by the authority or person named as guardian;

(b) the power to require the patient to attend at places and times so specified for the purpose of medical treatment, occupation, education or training;

(c) the power to require access to the patient to be given, at any place where the patient is residing, to any registered medical practitioner, approved social worker or other person so specified.

In addition, if a patient leaves the place where he is required to reside he may be taken into custody and returned (s 18(4) MHA). It is an offence to induce or knowingly assist a patient to absent himself without leave of the guardian, and to obstruct a person authorised to return a patient (s 129 and s 18(3) MHA). However, the Code of Practice issued under s 118 MHA ('the Code of Practice') provides at paragraph 13.8:

'[Guardianship] does not provide the legal authority to detain a patient physically or remove the patient against his or her wishes'¦ If the patient consistently resists the exercise of the guardian's powers it can be concluded that guardianship is not the most appropriate form of care for that person and the guardianship order should be discharged.'

There is no clear authority as to whether a guardian has any powers over a patient other than those set out above, which are expressly conferred by the MHA.

In R v Kent CC ex p Marston (unreported, 9 July 1997) Owen J held that s 7 MHA implied a duty in the guardian to act for the welfare of the patient, which included a power to restrict his contacts. This approach was endorsed when leave to appeal against the decision was refused by Simon Brown LJ, stating: 'It seems to me, as it seemed to Owen J below, implicit in Section 7 of the Act that the guardian is entitled in certain respects to act so as to promote the welfare of the patient'¦ the precise extent and consequence of such an implicit duty to act for the welfare of the patient is not clear. I envisage that that may well need clarification at some future date.'

In Re F (Mental Health Act: Guardianship) [2000] 1 FLR 192 Thorpe LJ stated obiter that he 'doubted' that it was lawful for a guardian to restrict the contacts of a person of whom he was the guardian. It is the view of the authors that this analysis is to be preferred. It is apparent from s 8 MHA that Parliament turned its mind to the nature of the powers that a guardian should have, and chose to include explicit provisions governing residence and access, but not contact. There is an obvious danger in extending the nature of guardianship in the generous and undefined manner adopted by the court in ex parte Marston.

A patient who is subject to guardianship is entitled to all the statutory protections of the MHA, including the right to apply to the Mental Health Review Tribunal (MHRT)

(s 72 MHA), and the need for regular review of the grounds for guardianship (s 20 MHA), and the powers inhering in the nearest relative.

Supervised discharge and after-care

The MHA also provides that patients who are subject to detention under s 3 MHA may be made the subject of an application for supervised discharge on the following grounds (s 25A MHA):

(a) [the patient] is suffering from mental disorder;

(b) there would be a substantial risk of serious harm to the health or safety of the patient or the safety of other persons or of the patient being seriously exploited, if he were not to receive the after-care services to be provided for him under s 117 below after he leaves hospital; and

(c) his being subject to after-care under supervision is likely to help to secure that he receives the after-care services to be so provided.

A patient subject to after-care under supervision may be made subject to the following requirements (s 25D(3) MHA):

(a) that the patient reside at a specified place;

(b) that the patient attend at specified places and times for the purpose of medical treatment, occupation, education or training; and

(c) that access to the patient be given, at any place where the patient is residing, to the supervisor, any registered medical practitioner or any approved social worker or to any other person authorised by the supervisor.

By contrast to persons who are subject to guardianship, a patient subject to after-care under supervision may be taken and conveyed by his supervisor or any authorised person to any place where he is required to reside or where he is required to attend (s 25D(4) MHA).

The statutory provisions do not require the consent of a patient to after-care under supervision. However, the guidance issued in relation to s 25A as a supplement to the Code of Practice includes the following at paragraph 24:

'While the Act does not require the patient's agreement to supervised discharge it is unlikely to be effective unless the patient, and any informal carer, has understood and accepted its terms.'

A patient who is subject to after-care under supervision also enjoys the protections of the MHA, including the right to apply to the MHRT, and the requirement of regular review of the grounds of the supervision order.

Inherent jurisdiction role

In A v Liverpool City Council [1982] AC 363, Lord Wilberforce held, in the context of an application for wardship made simultaneously with childcare proceedings, as follows:

'In my opinion Parliament has marked out an area in which, subject to the enacted limitations and safeguards, decisions for the child's welfare are removed from the parents and from supervision by the courts'¦

'The court's general inherent power is always available to fill gaps or to supplement the powers of the local authority: what it will not do (except by way of judicial review where appropriate) is to supervise the exercise of discretion within the field committed by statute to the local authority.'

The Court of Appeal considered the extent to which the inherent jurisdiction in relation to adults would be available where the adult might meet the criteria for guardianship under the MHA in Re F (Adult: Court's Jurisdiction) [2000] 3 WLR 1740. The Court accepted that the inherent jurisdiction was not available where the matter of concern was intended by Parliament to be dealt with under a statutory scheme. In F's case, the inherent jurisdiction was suitable for determination of the issues because she did not meet the criteria for guardianship, and because Parliament had not intended guardianship to provide a suitable solution for the determination of the issues in her case.

In Lewis v Gibson [2005] EWCA Civ 587, [2005] 2 FCR 241, 87 BMLR 93, it was submitted and impliedly accepted by the Court of Appeal, per Thorpe and Wall LLJ, that the making of applications for guardianship in the inherent jurisdiction were not merely alternatives, but that the latter was only available when the former was not.

A different approach was taken by Munby J in In the matter of PS (an adult) [2007] EWHC 623 (Fam). Munby J made two orders under the inherent jurisdiction in respect of PS: an order appointing Sunderland City Council as PS's receiver, and an order preventing PS's daughter from removing her mother from a residential unit. A local authority can apply to the court to be made a receiver under s 99 MHA. Munby J held that, as a matter of principle, 'there would seem to be no reason why the mere existence of an available remedy under Part VII of the [MHA] should preclude the exercise of the inherent jurisdiction in an appropriate case'. The cases of A v Liverpool City Council and Lewis v Gibson were apparently not cited to the court. Munby J relied on Re F (Adult: court's jurisdiction) as authority for the proposition that the inherent jurisdiction is not excluded by the statutory regime of the MHA. While it is correct to say that the inherent jurisdiction has not been extinguished by the MHA, the analysis in Re F (Adult: court's jurisdiction) does not support the view that the inherent jurisdiction can be invoked where the MHA could be used as an alternative. The decision in Re F (Adult: court's jurisdiction) was in relation to what the court explicitly said was a 'gap' in the MHA: without a declaration by the court, the patient's interests were not capable of protection.

It is the view of the authors, notwithstanding the decision in PS, that the inherent jurisdiction of the High Court may only be invoked where there is no statutory provision which governs the matter which is the subject of dispute. The inherent jurisdiction may be used to fill in gaps in the legislation, but it is not an alternative to the legislation, nor a means of reviewing the way in which statutory powers are exercised. Where Parliament has acted to confer a power on a statutory body to resolve an issue, the Court's inherent power may not be invoked instead of the statutory power where that statutory power is available. There is no 'choice' between the two regimes since the inherent jurisdiction is a supplementary, not an equivalent, jurisdiction.

Thus, where a patient meets the criteria for guardianship and/or after-care under supervision under the MHA, and the issues in the life of the patient that require a decision are those which are provided for under those statutory schemes e.g. residence and the arrangements for care, then those issues should be determined within the statutory scheme. It is not open to the relevant individuals to choose to determine the issues under the inherent jurisdiction instead. The inherent jurisdiction is limited by the bounds laid down by Parliament in statute, and it cannot trespass upon those areas.

Where there are other issues in the life of such a patient which require determination which do not fall within the statutory scheme, e.g. contact, medical treatment or possibly conveyance, then those issues should be determined under the inherent jurisdiction (and not by interpreting the statutory scheme more broadly in order to encompass them as was tried in ex parte Marston above). The fact that it would be convenient to determine both the former and the latter sets of issues together under the inherent jurisdiction is not sufficient to displace the requirement that the statutory scheme must be used.

Practical implications

If the court's involvement is required, and the questions at issue require the application of both the statutory scheme and the inherent jurisdiction, procedural difficulties may arise. For example, an application for guardianship cannot be made if the nearest relative of the patient objects (s 11(4) MHA). If the nearest relative's objection is unreasonable, or if he is likely to exercise his power to discharge the patient from guardianship without due regard for the patient's welfare, an approved social worker may apply to the County Court under s 29 MHA for an order that the local social services authority, or another person, exercise the functions of the nearest relative. It may therefore be that the court's involvement is required to determine an application under s 29 MHA and to decide questions of contact in respect of a patient under the inherent jurisdiction.

Should it be necessary to issue proceedings in the County Court under s 29 MHA, and in the Family Division of the High Court under the inherent jurisdiction, they may be heard together by a judge of the High Court sitting simultaneously as a judge of the County Court, under s 5(3) of the County Courts Act 1984 (CCA). Alternatively, the County Court proceedings may be transferred to the High Court under s 41(1) CCA, since the County Court's jurisdiction under s 29 MHA is not stated to be exclusionary.