Mental Health Act 1983

Guardianship E+W

7 Application for guardianship. E+W

(1) A patient who has attained the age of 16 years may be received into guardianship, for the period allowed by the following provisions of this Act, in pursuance of an application (in this Act referred to as “a guardianship application”) made in accordance with this section.

(2) A guardianship application may be made in respect of a patient on the grounds that—

(a) he is suffering from mental disorder, F1 . . . of a nature or degree which warrants his reception into guardianship under this section; and

(b) it is necessary in the interests of the welfare of the patient or for the protection of other persons that the patient should be so received.

(3) A guardianship application shall be founded on the written recommendations in the prescribed form of two registered medical practitioners, including in each case a statement that in the opinion of the practitioner the conditions set out in subsection (2) above are complied with; and each such recommendation shall include—

(a) such particulars as may be prescribed of the grounds for that opinion so far as it relates to the conditions set out in paragraph (a) of that subsection; and

(b) a statement of the reasons for that opinion so far as it relates to the conditions set out in paragraph (b) of that subsection.

(4) A guardianship application shall state the age of the patient or, if his exact age is not known to the applicant, shall state (if it be the fact) that the patient is believed to have attained the age of 16 years.

(5) The person named as guardian in a guardianship application may be either a local social services authority or any other person (including the applicant himself); but a guardianship application in which a person other than a local social services authority is named as guardian shall be of no effect unless it is accepted on behalf of that person by the local social services authority for the area in which he resides, and shall be accompanied by a statement in writing by that person that he is willing to act as guardian.

Textual Amendments

F1 Words in s. 7(2)(a) repealed (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 1, 55, 56, Sch. 1 para. 3 {Sch. 11 Pt. 1} (with Sch. 10); S.I. 2008/1900, art. 2(a)(p) (with art. 3, Sch.)

8 Effect of guardianship application, etc. E+W

(1) Where a guardianship application, duly made under the provisions of this Part of this Act and forwarded to the local social services authority within the period allowed by subsection (2) below is accepted by that authority, the application shall, subject to regulations made by the Secretary of State, confer on the authority or person named in the application as guardian, to the exclusion of any other person—

(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, [F2 approved mental health professional] or other person so specified.

(2) The period within which a guardianship application is required for the purposes of this section to be forwarded to the local social services authority is the period of 14 days beginning with the date on which the patient was last examined by a registered medical practitioner before giving a medical recommendation for the purposes of the application.

(3) A guardianship application which appears to be duly made and to be founded on the necessary medical recommendations may be acted upon without further proof of the signature or qualification of the person by whom the application or any such medical recommendation is made or given, or of any matter of fact or opinion stated in the application.

(4) If within the period of 14 days beginning with the day on which a guardianship application has been accepted by the local social services authority the application, or any medical recommendation given for the purposes of the application, is found to be in any respect incorrect or defective, the application or recommendation may, within that period and with the consent of that authority, be amended by the person by whom it was signed; and upon such amendment being made the application or recommendation shall have effect and shall be deemed to have had effect as if it had been originally made as so amended.

(5) Where a patient is received into guardianship in pursuance of a guardianship application, any previous application under this Part of this Act by virtue of which he was subject to guardianship or liable to be detained in a hospital shall cease to have effect.

Textual Amendments

F2 Words in s. 8(1)(c) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 21, 56, Sch. 2 para. 2(b) (with Sch. 10); S.I. 2008/1900, art. 2(d) (with art. 3, Sch.); S.I. 2008/2561, art. 2(b) (with art. 3, Sch.)

9 Regulations as to guardianship. E+W

(1) Subject to the provisions of this Part of this Act, the Secretary of State may make regulations—

(a) for regulating the exercise by the guardians of patients received into guardianship under this Part of this Act of their powers as such; and

(b) for imposing on such guardians, and upon local social services authorities in the case of patients under the guardianship of persons other than local social services authorities, such duties as he considers necessary or expedient in the interests of the patients.

(2) Regulations under this section may in particular make provision for requiring the patients to be visited, on such occasions or at such intervals as may be prescribed by the regulations, on behalf of such local social services authorities as may be so prescribed, and shall provide for the appointment, in the case of every patient subject to the guardianship of a person other than a local social services authority, of a registered medical practitioner to act as the nominated medical attendant of the patient.

10 Transfer of guardianship in case of death, incapacity, etc., of guardian. E+W

(1) If any person (other than a local social services authority) who is the guardian of a patient received into guardianship under this Part of this Act—

(a) dies; or

(b) gives notice in writing to the local social services authority that he desires to relinquish the functions of guardian,

the guardianship of the patient shall thereupon vest in the local social services authority, but without prejudice to any power to transfer the patient into the guardianship of another person in pursuance of regulations under section 19 below.

(2) If any such person, not having given notice under subsection (1)(b) above, is incapacitated by illness or any other cause from performing the functions of guardian of the patient, those functions may, during his incapacity, be performed on his behalf by the local social services authority or by any other person approved for the purposes by that authority.

(3) If it appears to the county court, upon application made by an [F3 approved mental health professional acting on behalf of the local social services authority] , that any person other than a local social services authority having the guardianship of a patient received into guardianship under this Part of this Act has performed his functions negligently or in a manner contrary to the interests of the welfare of the patient, the court may order that the guardianship of the patient be transferred to the local social services authority or to any other person approved for the purpose by that authority.

(4) Where the guardianship of a patient is transferred to a local social services authority or other person by or under this section, subsection (2)(c) of section 19 below shall apply as if the patient had been transferred into the guardianship of that authority or person in pursuance of regulations under that section.

[F4 (5) In this section “the local social services authority”, in relation to a person (other than a local social services authority) who is the guardian of a patient, means the local social services authority for the area in which that person resides (or resided immediately before his death).]

Textual Amendments

F3 Words in s. 10(3) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 21, 56, Sch. 2 para. 3(2) (with Sch. 10); S.I. 2008/1900, art. 2(d) (with art. 3, Sch.); S.I. 2008/2561, art. 2(b) (with art. 3, Sch.)

F4 S. 10(5) inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 21, 56, Sch. 2 para. 3(3) (with Sch. 10); S.I. 2008/1900, art. 2(d) (with art. 3, Sch.); S.I. 2008/2561, art. 2(b) (with art. 3, Sch.)