Guardianship under the Mental Health Act 1983, England - 2018-19, 2019-20 & 2020-21

This section provides further information about Guardianship.

Guardianship under the Mental Health Act 1983 provides a framework of care to help a person age 16 or over who has a mental disorder achieve as independent a life as possible out of hospital, whilst protecting their safety or that of others.

A guardian may be a local authority or someone else approved by a local authority (a ‘private guardian’). Guardians have three specific powers:

• They have the exclusive right to decide where a patient should live.
• They can require the patient to attend for treatment, work, training or education at specific times and places (but they cannot use force to take the patient there).
• They can require that a doctor, approved mental health professional (AMHP) or another relevant person has access to the patient at the place where the patient lives.

The Guardianship order lasts for 6 months, and can be renewed for a further 6 months, then annually. A person may be discharged from Guardianship for a number of different reasons:

• The reason for placing the individual under Guardianship may no longer be relevant
• The individual may be non-compliant with the Guardianship order
• The individual’s mental health need may have deteriorated
• They may warrant reception under a different Section of the MHA, for example hospital detainment (which may or may not then include transfer to a Community Treatment Order)
• The individual may now be deceased.

There are two parts of the MHA that are related to Guardianship, Section 7 and Section 37. 

Section 7 of the Mental Health Act

To be detained under Section 7 the following criteria apply:

• The person must be suffering from a mental disorder of a nature and/or degree which warrants Guardianship.
• A Guardianship order is necessary in the interests of the person’s welfare or for the protection of other people.

Section 37 of the Mental Health Act

This Section allows a Court to send someone to hospital for treatment, or to make you subject to Guardianship, when otherwise the outcome may have been a prison sentence.