GUIDELINES ON THE USE OF THE MENTAL HEALTH (NORTHERN IRELAND) ORDER 1986

GUARDIANSHIP (Part II)

Introduction

Guardianship was introduced by the Mental Health (Northern Ireland) Order 1986 with the aim of providing a framework in which people with a mental disorder could live safely and as independently as possible in the community and as a less restrictive alternative to detention in hospital. This Chapter provides an overview of Guardianship under Part II of the Order. For more detailed guidance, Health and Social Care staff are recommended to use the comprehensive guidance produced by members of the Regional ASW Forum: "Guardianship under the Mental Health (Northern Ireland) Order 1986 – A Model for Operation 2008".

This guidance has been adopted and customised by individual Health and Social Care Trusts and should be available to practitioners in each Trust. An electronic version of this, customised by the NHSCT can be accessed through the following link: LINK TO Guardianship under the Mental Health (Northern Ireland) Order 1986 – A Model for Operation 2008

The guidelines in this Chapter are set out in a question and answer format under the following headings:

  1. The purpose and powers of Guardianship
  2. Reception into Guardianship and Renewal
  3. Patients in hospital – Transfer into Guardianship
  4. Putting Guardianship into effect
  5. Discharge from Guardianship

The purpose and powers of Guardianship What is Guardianship?

Guardianship refers to 2 separate community-based legal provisions contained in Part II and Part III of the Mental Health (Northern Ireland) Order 1986:

  • Part II contains provision for a person to be "received into guardianship".
  • Part III contains provision for a court to make a "Guardianship Order". This can only be used for persons with a mental disorder who are concerned in criminal proceedings

Article 44

Further reference to this provision is contained in the Chapter - Persons concerned in criminal proceedings or under sentence.

What is the purpose of Guardianship? The purpose of guardianship is to ensure that people with a mental disorder, who meet certain criteria, receive the care and protection they require where this cannot be provided without the use of compulsory powers. It is primarily concerned with the welfare of the individual rather than their medical treatment.

Guardianship provides a less restrictive means of offering assistance to a person than detention in hospital and should be considered as an alternative to such an admission. It also enables a relative or social worker to help a mentally disordered person to manage in his own home or in other accommodation in the community, where the alternative would be detention in hospital. Code 3.1 and Guide para.69

In what circumstances can a person be received into guardianship?

A person can only be received into guardianship under Part II if they are:

  • Aged 16 or over.
  • Suffering from mental illness or severe mental handicap of a nature or degree which warrants reception into guardianship and
  • It is considered necessary in the interests of the welfare of the patient that the person should be so received.

Article 18 What is the definition of mental illness and severe mental handicap? Mental illness is defined as 'a state of mine which affects a person's thinking, perceiving, emotion or judgement to the extent that he requires care or medical treatment in his own interests or the interests of other persons. Severe mental handicap is defined as 'a state of arrested or incomplete development of mind which includes severe impairment of intelligence and social functioning.

Who can act as the Guardian? The Guardian may be:

  • The Responsible Authority, i.e. the Health and Social Care Trust in whose area the person who is to be received into guardianship resides. While the Trust will be named as the guardian, a professional officer must be nominated to carry out its duties as guardian. This role will be usually delegated to a social worker employed by the Trust, but may be delegated to another Health and Social Care Professional whom the Trust deems suitable. Or
  • Any other person, including the applicant (i.e. the approved social worker or nearest relative). However this person must provide a written statement that he/ she is willing to act as guardian and must be accepted as suitable by the Health and Social Care Trust to which the application is made.

Article 18 (5) & (6)

What are the powers of the Guardian? The Order gives the guardian power to require the person who has been received into guardianship to:

  • Reside at a place specified by the Health and Social Care Trust or person named as guardian;
  • Attend at places and times specified for the purpose of medical treatment, occupation, education or training;
  • Allow access to any medical practitioner, approved social worker or other person so specified to any place where the person is residing.

Article 22

The Code advises that guardianship should be used in a positive and flexible manner and as part of a comprehensive care plan agreed by the professionals who are or could be involved in the person's care, and where appropriate, the patient's nearest relative or other informal carers. Code 3.1

In order to ensure that practice reflects the principles contained in the code, all attempts must be made by the professionals and others involved to enable the person, received into guardianship, to be involved in the care planning process.

The care plan should identify the services needed by the person including all necessary care arrangements, appropriate accommodation, treatment and personal support requirements and should identify those who have responsibilities under the care plan. It should indicate which of the powers given by guardianship are considered necessary to achieve the plan.

If none of the powers of the Guardian are considered necessary for achieving the person's welfare, guardianship is inappropriate. Code 3.3

Reception into Guardianship and Renewal What must happen before a person can be received into Guardianship? Part II of the Order sets out the process that must be followed before a person can be received into Guardianship. An application founded on two medical recommendations and a recommendation by an approved social worker must be made to the Health and Social Care Trust in which the person resides. This can be made by the person's nearest relative as set out in Article 32 or an approved social worker or a person appointed by a county court to act as the nearest relative. LINK TO ROLE OF NEAREST RELATVE AND ROLE OF ASW

Who can make the medical recommendations? Two medical recommendations are required and can be made jointly (LINK TO FORM 15) or separately (LINK TO FORM 16) on the prescribed form/s by:

  1. A Part II doctor
  2. The person's General Practitioner (GP), if possible or a medical practitioner who already knows the patient.

What must happen before the medical practitioners make their recommendations? Both medical practitioners must examine the person whose reception into guardianship is being considered jointly or separately within 7 days of each other. Their recommendation/s must be completed and signed within 2 days of carrying out the examination. Article 20

Who can make the approved social worker recommendation? This must be made by any approved social worker appointed for the purposes of carrying out statutory responsibilities within the Health and Social Care Trust in which the person resides (LINK TO FORM 17). It cannot be made by the same approved social worker who is considering making the application for guardianship. Code 3.13 What must happen before the approved social worker makes their recommendation? The Order is not specific about the timing of the approved social worker's recommendation. However the Guide refers to the need for the decision to make the recommendation in the "light of full and recent knowledge" of the person's circumstances and the Code states that the approved social worker has to be reasonably satisfied that reception into guardianship is in the interests of the welfare of the person. This clearly indicates that a comprehensive assessment of the person's circumstances is required to ensure that appropriate facilities are available "to give effect to the powers of guardianship, such as a suitable place of residence or adequate arrangements for occupation, education or training". Code 3.13. Guide para. 74 Who can make the application? The application can be made on the appropriate prescribed form by:

  • The nearest relative as set out in Article 32 of the Order; or
  • A person appointed by the county court to act as a nearest relative (who must complete Form 13 LINK TO FORM 13); or
  • An approved social worker (who must complete Form 14 LINK TO FORM 14). This cannot be the same approved social worker who has made the recommendation that the person be received into guardianship.

Article 19

In most situations an approved social worker rather than the nearest relative will make the application. The Code states that "in no circumstances should pressure be brought to bear on the nearest relative to make a guardianship application". Code 3.9 Can a nearest relative request an ASW to make an application for guardianship? Yes. Article 40 requires an approved social worker, appointed by the Health and Social Care Trust to respond to a request by a nearest relative to make an application for guardianship in respect of a person who resides in that Trust area. The approved social worker is required to consider the matter as soon as practicable. If however, after due consideration he decides not to proceed with the application he must inform the nearest relative of the reasons for doing so in writing. Article 40 (4) What must the applicant (approved social worker) do before making the application that a person is received into guardianship? The approved social worker must carry out a comprehensive assessment of the need for reception into guardianship. This assessment must include;

  • An interview with the person whose reception into guardianship is being considered. This must take place within 14 days of the application being made,
  • An interview and consultation with the person considered to be the nearest relative and
  • Identification and consideration of any other relevant circumstances. The approved social worker must also,
  • Identify a guardian,
  • Ensure that person is advised about the effect of guardianship and the extent and limitations of a guardian's powers,
  • Ensure that the person is willing to act as guardian, and
  • Following assessment and before making the application, the approved social worker must consult the nearest relative unless this is not reasonably practicable or would involve unreasonable delay.

 

Can the nearest relative object to the application being made by the approved social worker? Yes, the nearest relative has the right to object to the application being made. This objection must be recorded on the application form.

The ASW has a duty to consult with the patient's nearest relative prior to making the application and, if this not possible as soon as is practicable following application. The ASW should record details of this consultation.

The ASW must make repeated attempts to consult with the nearest relative. These efforts must be recorded.

Can the approved social worker proceed with the application if the nearest relative objects? Yes but only following consultation with another ASW (not the ASW who has made the recommendation).

If the decision following this consultation is to proceed with the application then the ASW must record the nearest relative's objection on the application form. Articles 19 (5) & 40

If the approved social worker is concerned that the nearest relative is objecting unreasonably to the guardianship application that approved social worker can also apply to the County Court to have an acting nearest relative appointed to carry out the functions of the nearest relative. Article 36

What must happen if the approved social worker is unable to consult with the nearest relative prior to making the application for reception into guardianship? The Order directs that it shall be the duty of the approved social worker to inform the nearest relative "as soon as may be practicable". Article 19(6) What should happen if the nearest relative chooses to make an application for a person to be received into Guardianship? The nearest relative can ask for and should be offered the assistance of the health and social care professionals involved in the care of the person whose reception into guardianship is sought. Those professionals should offer any advice or assistance required. This will include making the nearest relative aware of the process to be followed and advice and guidance regarding the completion of the relevant prescribed for, in this case Form 13. As applicant, the nearest relative must have seen the person whose reception into guardianship is being considered within 14 days prior to the making of the application. Article 3.8 When should the application for guardianship be forwarded to the relevant Health and Social Care Trust? The guardianship application must be forwarded to the Trust not more than 7 days after the last medical examination. Article 22 (2) What must the Health and Social Care Trust do once the Guardianship Application has been made? The Health and Social Care Trust must ensure that:

  • Any proposed private guardian i.e. a guardian other than the Health and Social Care Trust is suitable to be appointed in this role;
  • Private guardians understand and carry out their statutory powers and duties.
  • The person is notified that they have been received into Guardianship and that they have been advised of the provisions and the effects of this provision;
  • The person is advised of their right to apply to the Mental Health Review Tribunal;
  • The person must also be advised that a named officer of the Trust will give any necessary assistance to make such an application;
  • The person has been advised of the effects of the Order relating to discharge from guardianship and their rights to make representation to RQIA.

Article 27

The Trust must also;

  1. Ensure that the nearest relative is furnished with a statement of their rights and powers under the Order and,
  2. Subject to the patient's wishes, the nearest relative should be given a copy of any written information given to the person who has been received into guardianship. Article 27
  3. Forward the relevant documentation to RQIA. Code 3.18

What should happen once the application has been accepted by the Health and Social Care Trust? The powers of the guardianship take effect immediately once the application has been accepted by the Trust. Article 22(3)

The Trust must:

  • Monitor the progress of the guardianship;
  • Maintain detailed records relating to persons received into guardianship.
  • Review guardianship towards the end of each period;
  • Ensure that a person is formally discharged from guardianship when it is no longer appropriate, rather than letting the arrangement lapse;
  • Transfer guardianship from one Health and Social Care Trust to another or from one person to another in accordance with the Order;
  • Notify RQIA of events prescribed in the DHSSPS Regulations;
  • In situations where the Health and Social Care Trust nominate a professional officer in the Trust to carry out its duties as guardian.

How long can a person be subject to guardianship? A person can be subject to the provisions of guardianship for an initial period not exceeding 6 months from the day on which the guardianship application was accepted by the Health and Social Care Trust. Article 22 (3) Can the guardianship be renewed? Yes, the authority for guardianship can be renewed at the end of the initial 6 month period for a further 6 months and subsequently annually. Article 23 LINK TO FORM 18 AND FORM 19

Patients in hospital - Transfer into Guardianship Can a person be transferred from detention in hospital to guardianship? Yes. A person who is detained for treatment in hospital may be transferred directly into guardianship. Article 28 (5) Guide paras. 102 and 103

How can a patient be transferred from detention in hospital to Guardianship? The person's reception into guardianship will usually be initiated by the RMO, who the Guide advises, is likely to involve an approved social worker at a very early stage. The approved social worker will give advice on the person's suitability for guardianship from a welfare point of view. The decision will usually follow a multidisciplinary discussion and consultation with the patient and his carers.

Although the person will be subject to the same provisions as a person who was received into guardianship following an application, there are no prescribed forms to facilitate this process. The RMO is however required to obtain the written agreement of the appropriate Health and Social Care Trust for the person's reception into guardianship and the written consent of the guardian. The Guide further advises that "these records will ensure that the authority of the guardian over the patient and the powers and duties of the responsible Health and Social Care Trust may not be subsequently questioned". Guide para 103

The Trust must ensure that the person and their nearest relative are advised that they have been received into guardianship and of their rights. The Trust must also notify RQIA. Can a person continue to be subject to guardianship if they are subsequently admitted to hospital? Yes. Guardianship does not restrict the person's access to hospital services on a voluntary basis. However if the person is subsequently admitted to and detained in hospital, guardianship can only remain in place for the duration of the assessment period and will cease to have effect if the person is subsequently detained for treatment. Code 3.22

Putting Guardianship into effect

Can the person object to the application and reception into guardianship? No, there is no provision for the person to object to the application being made. However the person can apply once they have been received into guardianship to the Mental Health Review Tribunal to have their control under guardianship reviewed. This is limited to one review every 6 months beginning with the date of the acceptance of the application for guardianship.

The Code states that "Where the person is capable of understanding" it is also necessary that there should be "recognition of the authority of the guardian and a willingness on the part of both parties to work together". Code 3.4 LINK TO PROTECTIONS, Mental Health Review Tribunal Can a person be received into guardianship if, due to incapacity, they are unable to agree or disagree with the requirements of their guardianship provisions? The Order does not specifically address issues of capacity in relation to reception into guardianship and, at this time, there is no statutory framework in relation to the welfare needs of those who lack the capacity to make such decisions. However the Code states "Where an adult is assessed as requiring residential care, but due to mental incapacity is unable to make a decision as to whether he wishes to be placed in residential care, those who are responsible for his care should consider the applicability and appropriateness of guardianship for proving a framework within which decisions about his current and future care can be planned". Code 3.24

Those professionals involved in the planning and implementation of care arrangements for a person who lacks capacity to make a decision in relation to these matters should be guided by the interim guidance provided by DHSSPSNI in relation to these matters. LINK TO DHSSPS Deprivation of Liberty Safeguards. Can a person be forced to go to the place of residence named by the Guardian? The Code states that the person can be taken to the specified place only if he willingly complies or offers no resistance. It does not confer powers to compel the admission of an unwilling person into residential care and does not provide the legal authority to detain a person physically in such a place, nor authorise the removal of a person against their will. Code 3.21

In the case of a person who lacks the mental capacity to make a decision as to whether or not they should be placed in residential care, the Code states that those who are responsible for the person's care should consider the applicability and appropriateness of guardianship for providing a framework within which decisions about current and future care can be planned.

Can a person be forced to return to the place of residence specified by the Guardian? If the person is absent without leave from the specified place they can be taken into custody and removed to that place by a constable or an approved social worker or any other person authorised by the guardian or responsible Health and Social Care Trust. Article 29 Can access to the place of residence of the person who has been received into guardianship be denied to a medical practitioner, approved social worker or any other person so specified? No. Such a denial, without reasonable cause, is deemed an offence under Article 125 of the Order. However neither the guardian nor any authorised person can use force to gain entry. In this event the use of a Warrant under Article 129 may need to be considered. Article 125 & Article 129 Can a person who has been received into guardianship be forced to attend places for the purpose of medical treatment, occupation, education or training and at times specified? No. The Code states that if the person refuses to attend, the guardian is not authorised to use force to secure such attendance nor can medical treatment be administered to the person without their consent.

The Code states "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 guardianship should be discharged".

Discharge from Guardianship When should guardianship be discharged? Guardianship must be discharged as soon as the person no longer meets the criteria for reception into guardianship, i.e. the patient is no longer suffering from mental illness or severe mental handicap of a nature or degree which warrants reception into guardianship and /or it is no longer considered necessary in the interests of the welfare of the patient that the person should be subject to guardianship. Article 24 Who can discharge the person from guardianship? The person can be discharged from guardianship by:

  • The Responsible Medical Officer Article 23 (2)
  • An authorised Social Worker Article 23 (3) In this Article "authorised social worker" means an approved social worker authorised for the purposes of this article by the responsible authority.
  • The Nearest Relative (Article 24 (4) and (5)

In this event the nearest relative must give at least 72 hours notice (or 96 hours if a weekend) to the responsible Health and Social Care Trust. However if necessary this can be overturned by the responsible medical officer and an approved social worker. The nearest relative will not be able to make another order for discharge for 6 months but can make an appeal to the Mental Health Review Tribunal within 28 days of being informed that their relative will continue to be subject to guardianship.

The Health and Social Care Trust must immediately inform RQIA and the patient's guardian, if other than the Trust, that the person is being discharged from guardianship. Article 24 (8)