Mental health law briefing 216 – Guardianship and DoLS
Following the decision of the Supreme Court in Cheshire West1, the Upper Tribunal has considered how this decision and the court’s explanation of what constitutes a deprivation of liberty impacts on the guardianship regime2.
Mr L suffered from learning disabilities and was subject to guardianship. It was accepted that this regime amounted, for him, to a deprivation of liberty. Mr L did not consent to this. The Tribunal had to consider whether it should exercise its discretionary power under Section 72(4) MHA 1983 to discharge him from guardianship. The First Tier Tribunal refused to do so, and the matter was appealed to the Upper Tribunal, where it was argued on behalf of Mr L that the “force” of the guardianship was what caused the deprivation of liberty. The Local Authority contended, to the contrary, that the deprivation arose from the care plan, but as the Local Authority was not imposing those care arrangements, there would in fact have been no deprivation of liberty.
The Tribunal reviewed the meaning of deprivation of liberty. It concluded there was a deprivation of liberty, but needed to consider whether this arose from the guardianship or the care plan. Although it held that guardianship could amount to a deprivation of liberty, it does not necessarily do so. Guardianship provides a “minimal legal framework of control within which other care can be provided”.
The appeal was therefore dismissed on the basis that the guardianship regime here did not of itself amount to a deprivation of liberty.
It is helpful guidance to assist with the use of guardianship, to know that guardianship will not of itself give rise to a deprivation of liberty.
However, guardianship is only likely to work in conjunction with a detailed care plan, and if that care plan does amount to a deprivation of liberty, then a DOLs Authorisation will be required, or an order authorising a deprivation of liberty from the Court of Protection under Section 16 Mental Capacity Act 2005.
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1 see RadcliffesLeBrasseur Healthcare briefing of March 2014 available in the Publications section of our website at www.rlb-law.com
2 NL –v- Hampshire County Council (Mental Health: All)  UKUT 475
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.