Mental health act guardianship: Where now?

Abstract

The Percy Commission reported on the Law Relating to Mental Illness and Mental Deficiency in 1957.¹ A vital strand of the thinking in this Report was that the law should be such that suitable care could be provided for mentally disordered people “with no more restriction of liberty or legal formality than is applied to people who need care because of other types of illness, disability or social difficulty.”² As well as demanding greater use of admission to hospital without formal procedures, this philosophy also required an underlining of the essential value of community care. The Percy Commission recognised that some people could be properly cared for in the community only if some other person, the guardian, had certain compulsory powers that could be exercised in relation to the patient.³ Consequently, guardianship was born. Section 33 of the Mental Health Act 1959 ensured that a person could be received into the guardianship of either the local social services authority or a private individual provided that the patient suffered from one of the four specific forms of mental disorder which was of such a degree that the patient's reception into guardianship was warranted in his/her interests. The four specific forms of mental disorder were: mental illness, severe subnormality, subnormality and psychopathic disorder. The dependence upon the presence of one of them mirrored in part section 26 of the Mental Health Act 1959. This section created compulsory admission of a person to hospital for treatment. The first condition to permit such an admission was that the person had to be suffering from one of the four specific forms of mental disorder. This nexus between reception into guardianship and admission to hospital for treatment is of crucial importance in the later development of guardianship