NM v Kent County Council [2015] UKUT 125 (AAC), [2015] MHLO 34

NM was subject to both guardianship and a DOLS authorisation. His residence at a particular home was enforced and he was escorted while on leave. The First-tier tribunal decided that he "had the capacity to decide where to live but not the capacity to decide on the supervision that was required to keep him and any child he came into contact with safe", and that he would not remain in the home without being subject to the guardianship; it refused to discharge him. (1) An ideal set of reasons would identify the relevant legal differences between guardianship and DOLS and include findings of fact sufficient to show their significance to the legal criteria set out in s72(4). (2) Upper Tribunal Judge Jacobs accepted the council's position that the differences include: DOLS assumes that the person lacks capacity to make the relevant decisions in their best interests; DOLS cannot impose a requirement that the person reside at a particular address, whereas a guardian can; and DOLS cannot authorise anyone to give, or consent to, treatment for someone with a mental disorder. He also said that a limitation inherent in the DOLS regime was that, while it could prevent NM from leaving, it could not deal with the possibility that he may abscond. (3) In some (other) cases guardianship may not be necessary for the purposes of s72(4)(b) as DOLS may provide sufficiently for the person’s welfare and the protection of others. (4) The First-tier Tribunal's reasons on the statutory criteria (the key being that NM would not remain at the home without guardianship) and the relationship with DOLS (concerning return following absconsion) were in substance adequate to explain and justify its decision.

Related judgments

Notes

These are the "Notes" from the OSSCSC website:

Patient subject to guardianship and a DOLS - power to compel residence and enforce return sufficient to justify decision not to discharge the guardianship in this case When there is an issue of the significance of a DOLS to a guardianship, the tribunal should identify the practical differences and make findings necessary to decide whether the conditions in section 72(4) of the Mental Health Act remain satisfied

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