Grant: Guardianship Orders: a review of their use under the 1983 Mental Health Act 319
Guardianship Orders: a review of their use under the 1983 Mental Health Act W GRANT, MB CHB MRCPsych. Consultant Psychiatrist, St George's Hospital, Morpeth
ABSTRACT This article reviews what has been reported in literature about the use of Guardianship Orders under the Mental Health Act 1983. Guardianship Orders were used infrequently in comparison with Sections 2, 3 and 4 of the Mental Health Act although the number of guardianship cases has increased threefold since 1982. Elderly female patients with organic brain disease were the group on whom guardianship was most used either to support them in the community or to facilitate admission to residential care. Guardianship was rarely used to prevent hospitalization. Despite its many drawbacks, for a selected group of patients guardianship did appear to have advantages and was found to be worthy of consideration for practising clinicians and approved social workers.
INTRODUCTION
The concept that the mentally disordered need to be supervised in the community and protected from harm has a long history (Neugebauer, 1989). Guardianship in Scotland can be traced back to the poor law and became a more structured device in the later Mental Deficiency Act and the Scottish Lunacy Act of 1859. In England and Wales following the recommendation of the Percy Commission (1957) guardianship was embodied in the Mental Health Act 1959. This defined the powers in an extremely wide and inexact way, indicating that Guardianship gave the guardian power that a father had over a 14-year-old child. It had been hoped that there would be significant use of this power. However, this was not the case and the use of Guardianship declined from 1,133 occasions in 1960 to only 138 occasions in 1978 (Fisher, 1988). Under the Mental Health Act 1983 Guardianship was amended so that it could only apply to those over 16 years of age, subject to
the consent of the nearest relative, and who were suffering from one of the four forms of mental disorder (mental illness, severe mental impairment, psychopathic disorder, mental impairment). It had to be stated that it was in the interests of the welfare of the patient that he/she should be so received (into Guardianship). The powers of Guardianship were defined as (a) 'The power to require the patient to reside at a place specified by the ... 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.' It was hoped that Guardianship would provide 'long term guidance, supervision, influence and support to assist vulnerable and handicapped individuals to continue to live their lives in the community' (Bluglass, 1984). The expectation was that there would be a considerable increase in the use of Guardianship. This article reviews what has been reported in the literature about the use of Guardianship over the last seven years. THE USE OF GUARDIANSHIP National figures
Figures produced in 1989 by the Department of Health show a considerable increase in the use of Guardianship from 41 new cases in the period 1 April 1982 to 31 March 1983 to 123 new
320 Med. Sci. Law (1992) Vol. 32, NO.4
Table 1. Guardianship figures 1982-1987 Number of Guardianship Orders in each 12-month period, 1 April to 31 March
New cases Cases continuing at end ofyear
1982-3
1983-4
1984-5
1985-6
1986-7
41 143
60
97 200
100
123
168
189
161
Notes: (i) Data from 1984-5 onwards refers to guardianship under the 1983Act. (ii) Data from 1983-4 refers to guardianship under both 1983and 1959Acts. cases in the same twelve-month period four years later (Table D. While the numbers may be small this still represents a threefold increase in the use of guardianship over this period. Figures obtained for the DHSS for the year (April 1986 to March 1987) (personal communication) indicated that there may be a slight under estimation for the annual national figures as for this 12-month period eight local authorities did not submit any figures. In comparison the figures for the use of Guardianship have been reported by the Mental Welfare Commission (Mental Welfare Commission for Scotland 1985, 1986). These reflect the declining usage of Guardianship from 2,800 in the late 'fifties to 84 patients under Guardianship in 1985 and only 71 by the end of 1986. Guardianship was a rarely utilized power in comparison with the use of other Sections of the Mental Health Act. In the years since the Mental Health Act 1983 was introduced over fifteen thousand patients have been compulsorily admitted to hospital in every 12-month period,
with approximately half being admitted under Section 2 (DHSS, 1986). The literature did suggest that there were widespread variations in its use: Fisher (1988) found that although 60 per cent oflocal authorities had considered the use of Guardianship most of them had only done so on a few occasions; one authority had however considered it 26 times. Wide variation in the use of Guardianship has also been reported in Scotland (Mental Welfare Commission, 1986). This variation appeared not only to be confined to local authorities; there appeared to be considerable variation between psychiatrists as to when to use Guardianship; for example five out of six patients placed on a Guardianship order in Leeds were under the care of one out of the five psychogeriatricians working in that city (Wattis et al., 1990). For what categoryof patient is guardianship used? Based on the figures obtained from the Department of Health (personal communication) and
Table II. Category of mental disorder applying to patient put on guardianship, 1 April to 31 March 1982-3
1983-4
1984-5
1985-6
1986-7
Total
31
65
62
93
270
8
16
21
25
19
89
14
13
11
11
9
58
2
2
4
New cases Mental illness Mental impairment Severe mental impairment Psychopathic disorder
19
Grant: Guardianship Orders: a review of theiruse underthe 1983 Mental Health Act 321
Table III. Age of patient when placed on a Guardianship order Study
Age
Sample size
Guardianship Orders: a review of their use under the 1983 Mental Health Act W GRANT, MB CHB MRCPsych. Consultant Psychiatrist, St George's Hospital, Morpeth
ABSTRACT This article reviews what has been reported in literature about the use of Guardianship Orders under the Mental Health Act 1983. Guardianship Orders were used infrequently in comparison with Sections 2, 3 and 4 of the Mental Health Act although the number of guardianship cases has increased threefold since 1982. Elderly female patients with organic brain disease were the group on whom guardianship was most used either to support them in the community or to facilitate admission to residential care. Guardianship was rarely used to prevent hospitalization. Despite its many drawbacks, for a selected group of patients guardianship did appear to have advantages and was found to be worthy of consideration for practising clinicians and approved social workers.
INTRODUCTION
The concept that the mentally disordered need to be supervised in the community and protected from harm has a long history (Neugebauer, 1989). Guardianship in Scotland can be traced back to the poor law and became a more structured device in the later Mental Deficiency Act and the Scottish Lunacy Act of 1859. In England and Wales following the recommendation of the Percy Commission (1957) guardianship was embodied in the Mental Health Act 1959. This defined the powers in an extremely wide and inexact way, indicating that Guardianship gave the guardian power that a father had over a 14-year-old child. It had been hoped that there would be significant use of this power. However, this was not the case and the use of Guardianship declined from 1,133 occasions in 1960 to only 138 occasions in 1978 (Fisher, 1988). Under the Mental Health Act 1983 Guardianship was amended so that it could only apply to those over 16 years of age, subject to
the consent of the nearest relative, and who were suffering from one of the four forms of mental disorder (mental illness, severe mental impairment, psychopathic disorder, mental impairment). It had to be stated that it was in the interests of the welfare of the patient that he/she should be so received (into Guardianship). The powers of Guardianship were defined as (a) 'The power to require the patient to reside at a place specified by the ... 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.' It was hoped that Guardianship would provide 'long term guidance, supervision, influence and support to assist vulnerable and handicapped individuals to continue to live their lives in the community' (Bluglass, 1984). The expectation was that there would be a considerable increase in the use of Guardianship. This article reviews what has been reported in the literature about the use of Guardianship over the last seven years. THE USE OF GUARDIANSHIP National figures
Figures produced in 1989 by the Department of Health show a considerable increase in the use of Guardianship from 41 new cases in the period 1 April 1982 to 31 March 1983 to 123 new
320 Med. Sci. Law (1992) Vol. 32, NO.4
Table 1. Guardianship figures 1982-1987 Number of Guardianship Orders in each 12-month period, 1 April to 31 March
New cases Cases continuing at end ofyear
1982-3
1983-4
1984-5
1985-6
1986-7
41 143
60
97 200
100
123
168
189
161
Notes: (i) Data from 1984-5 onwards refers to guardianship under the 1983Act. (ii) Data from 1983-4 refers to guardianship under both 1983and 1959Acts. cases in the same twelve-month period four years later (Table D. While the numbers may be small this still represents a threefold increase in the use of guardianship over this period. Figures obtained for the DHSS for the year (April 1986 to March 1987) (personal communication) indicated that there may be a slight under estimation for the annual national figures as for this 12-month period eight local authorities did not submit any figures. In comparison the figures for the use of Guardianship have been reported by the Mental Welfare Commission (Mental Welfare Commission for Scotland 1985, 1986). These reflect the declining usage of Guardianship from 2,800 in the late 'fifties to 84 patients under Guardianship in 1985 and only 71 by the end of 1986. Guardianship was a rarely utilized power in comparison with the use of other Sections of the Mental Health Act. In the years since the Mental Health Act 1983 was introduced over fifteen thousand patients have been compulsorily admitted to hospital in every 12-month period,
with approximately half being admitted under Section 2 (DHSS, 1986). The literature did suggest that there were widespread variations in its use: Fisher (1988) found that although 60 per cent oflocal authorities had considered the use of Guardianship most of them had only done so on a few occasions; one authority had however considered it 26 times. Wide variation in the use of Guardianship has also been reported in Scotland (Mental Welfare Commission, 1986). This variation appeared not only to be confined to local authorities; there appeared to be considerable variation between psychiatrists as to when to use Guardianship; for example five out of six patients placed on a Guardianship order in Leeds were under the care of one out of the five psychogeriatricians working in that city (Wattis et al., 1990). For what categoryof patient is guardianship used? Based on the figures obtained from the Department of Health (personal communication) and
Table II. Category of mental disorder applying to patient put on guardianship, 1 April to 31 March 1982-3
1983-4
1984-5
1985-6
1986-7
Total
31
65
62
93
270
8
16
21
25
19
89
14
13
11
11
9
58
2
2
4
New cases Mental illness Mental impairment Severe mental impairment Psychopathic disorder
19
Grant: Guardianship Orders: a review of theiruse underthe 1983 Mental Health Act 321
Table III. Age of patient when placed on a Guardianship order Study
Age
Sample size
