Mental health law briefing 222 – The interaction between guardianship and DoLS
1. KD v A Borough Council  UKUT 251 (AAC) is a decision by Charles J, concerning guardianship and DoLS. KD had Korsakov’s Syndrome and had, following detention under the MHA, been subject to guardianship since 2012. He was required to reside in a care home with 24 hour supervision and support and was not free to leave. He was permitted to leave only when accompanied by a member of care home staff, and his access to the community was limited due to non-availability of care home staff. He argued that he should be discharged from guardianship because it was not necessary, DoLS was less restrictive and guardianship could not authorise his deprivation of liberty.
2. The FTT found that guardianship was necessary because KD had expressed a wish to leave his care home and move to India or Florida. Absent guardianship, KD would leave the home and may be at risk of homelessness and conflict with his family who no longer wished to accommodate him.
3. The question for the UT was whether guardianship could be discharged because DoLS was the less restrictive option. The judge declined to decide whether KD was or is being deprived of his liberty. However, he expressed a preliminary view that a deprivation of liberty during guardianship can, and so should, be authorised under the MCA. It would therefore be appropriate for the managing authority and care home to consider whether DoLS was appropriate where P was required to live in a care home and the care plan resulted in a deprivation of liberty. The judge noted that DoLS can come into effect at a time after it is given, and the COP can approve a care plan and authorise a deprivation of liberty which is to occur in the future.
4. This case is important because Charles J gave practical guidance as to how deprivation of liberty issues should be handled by the FTT. At paragraph 57 of the judgment, he held that if the FTT is satisfied that discharging P from guardianship would give rise to an unlawful deprivation of liberty, it should not do so until a lawful placement is in place – meaning that either a DoLS or a court order authorising the deprivation of liberty is in place. If there is already a DoLS or court order in place, on discharge of guardianship the underlying eligibility for DoLS will change and therefore it will need to be confirmed or renewed on this new basis before P is discharged.
5. The FTT does not have jurisdiction to resolve the issue of lawfulness of a deprivation of liberty. Where an issue does arise in a case before it, the FTT should adjourn while the issue is investigated. Such decisions, however, will need to be made on a case by case basis.
6. Charles J also set out his views on the investigatory role of the FTT. Where there may be a less restrictive option, the FTT is not required to investigate every single option which is available. It is the primary responsibility of the parties to present evidence and argument to the tribunal on the options available, and it is from this evidential basis that the tribunal will investigate and seek further information if it feels this is appropriate. He then provided a check list for the FTT when an issue regarding alternatives to guardianship arises:
a. Is the proposed alternative actually available in practice? If not when will it be available? This will involve considering:
i. Whether the relevant placement and care plan are agreed and defined.
ii. If not when will it be agreed and so defined.
iii. The terms of the care plan and whether its application will result in a deprivation of liberty.
iv. If the answer to (iii) is yes or maybe has an authorisation under the MCA’s DOLS or an order of the Court of Protection been obtained.
v. If such an authorisation has not been obtained, can it be obtained and if so how and when will it be obtained. This will involve considering (a) whether P lacks capacity applying the MCA tests, (b) whether P is not ineligible (and so is eligible) to be deprived of his liberty by the MCA and (c) whether the decision makers under the MCA are likely to conclude that the proposed placement is in P’s best interests.
vi. If there is already an authorisation under the DoLS or from the Court of Protection when this will be confirmed on the basis of a change in the status of P from Case D to Case E.
These questions will enable the FTT to form a view on whether on discharge of the guardianship the proposed alternative is lawful or is likely to be made lawful
b. What are the advantages and disadvantages of the rival alternatives? This will involve:
i. An identification of the relevant legal differences between the proposed alternatives.
ii. Making the findings of fact that are needed to apply those differences to the circumstances of the case and in particular to the legal criteria set by s. 72(4) MHA, which is the test they have to apply.
These questions will enable the FTT to form a view on whether the availability of a lawful alternative would satisfy the test for a direction that the patient be discharged from guardianship.
c. Have the parties provided sufficient evidence and argument on the above issues? This involves considering whether the parties have sufficiently complied with the approach set out above
d. What issues should the FTT decide? This engages issues that inform the availability of alternatives and thus, for example, an argument that (a) the patient has capacity, or (b) the placement does not give rise to a deprivation of liberty
e. Should the FTT adjourn or discharge the guardianship? This is the ultimate question and will depend on the assessment of the earlier ones. The choice between adjournment and discharge will turn on the prediction as to whether and when evidence can be obtained to demonstrate the existence of a practically available alternative.
7. On the facts of this case, the judge noted that he had insufficient information about the options available, and that the prospect of a less restrictive option was not sufficient to found a discharge. At the time of the hearing, the nuts and bolts of an urgent application to the COP for a decision about where KD should live were not in place. The best that KD could hope for was an adjournment of the FTT hearing to investigate the options. However, even after the passage of time between the FTT hearing and the UT hearing, there was uncertainty about what was being proposed in the short to medium term. The judge concluded that the FTT had lawfully decided that the advantages of guardianship – including powers of return to the care home instead of an injunction – weighed against discharge. Although there were errors in the FTT’s decision, the judge did not use his discretion to remit the case to a differently constituted FTT to consider the alternatives available. These issues could be dealt with in a fresh application by the nearest relative.
We are indebted to Rose Grogan from 39 Essex Chambers for this case note.
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