A client had an acquired brain injury and was sectioned under the Mental Health Act 1983. On discharge, his local authority became his guardian for the purpose of deciding where he should live. However, it also subjected him to a deprivation of liberty at the home where it placed him (which the Court of Protection later discharged). The authority argued that the question of where he should live was not a matter for the Court of Protection, but was solely for the guardian to decide. The expert advice was that the man lacked capacity to make these kind of decisions for himself.
The Court agreed that it had no jurisdiction under the MCA to overrule a guardian’s decisions on residence. This may mean that authorities may make more use of guardianship to avoid the Court of Protection. However the judge did comment that, if there is conflict between a guardian and the person with mental disorder, about matters such as his residence, that could indicate that guardianship may not be the best way of handling matters.
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