Decision of the Upper Tribunal
(Administrative Appeals Chamber)

Save for the cover sheet, this decision may be made public (rule 14(7) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI No 2698)). That sheet is not formally part of the decision and identifies the patient by name.

This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007:
The decision of the First-tier Tribunal under reference SMP/2014/18287 following a hearing on 17 September 2014 did not involve the making of an error on a point of law. 
Reasons for Decision
A.	What this case is about
1.	This case concerns the relationship between the DOLS regime under the Mental Capacity Act 2005 and the guardianship provisions of the Mental Health Act 1983. In that sense, it is a companion to my decision in NL v Hampshire County Council [2014] UKUT 0475 (AAC), although the issue in this case is different.
B.	History and background
2.	Mr M is subject to the guardianship of Kent County Council. On 24 July 2014, he applied to the First-tier Tribunal asking for the guardianship to be discharged. 
3.	The precise dates and sequence of events is not clear. In particular, the tribunal’s summary differs from the judgment of Moor J when Mr M’s case came before the Court of Protection. I have followed the tribunal; the differences are not material to the issue I have to decide.
4.	Mr M was born in 1972 and has diagnoses of mild learning disability with behavioural difficulties, and paedophilic sexual interest. I take up his history in 2000, when he was transferred to a residential placement. He was received into guardianship first in 2005 and, as it was thought that the procedure had been flawed, again in 2013. The Council as guardian requires Mr M to live in a particular home and to meet with clinicians and therapists for treatment. He was subject to a DOLS from 2011, which was confirmed by the Court of Protection in 2012.
5.	At the hearing, his representative argued that guardianship was no longer necessary, as the interests of Mr M and of the public were sufficiently protected by the DOLS. He would be prevented if he tried to leave the home without permission, so he could not abscond. Moreover, the Council had little influence over Mr M’s life. 
6.	The tribunal rejected that argument, deciding that guardianship was necessary in the interests of Mr M’s own welfare and of children whom he wished to contact. Its reasoning was as follows.
•	There was no dispute that Mr M had a mental disorder.
•	As a result of this disorder, he had set fires, been verbally and physically aggressive, and (most important of all for present purposes) had a sexual interest in children. He hoarded materials relating to children and sought to contact them, for example by dropping notes in the street inviting them to contact him. 
•	The evidence showed that Mr M had capacity to decide where it would be in his best interests to live. He said that he wanted to remain in the home, despite finding it noisy, until somewhere suitable could be found. 
•	The professional witnesses agreed that, if discharged, Mr M would try to leave the home and would not return. 
•	The responsible clinician gave evidence that Mr M’s treatment was available at the home and he would not be able to organise for himself the necessary appointments with the professionals caring for him. He would deteriorate into a chaotic life-style, distracted by his own interests. This would undermine his ability to comply with his treatment or engage with services. He had not yet developed the strategies to avoid his behaviour towards children, which put them at risk and him at risk of retaliation. 
•	The tribunal found that Mr M was an unreliable witness on whether he would remain in the home. He had shown he could be devious in order to pursue his objectives, specifically contact with children. 
•	There were circumstances in which guardianship and DOLS were not both necessary; the Code of Practice recommended that the decision had to be made in the circumstances of each case. This case involved a man who 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. 
C.	Guardianship under the Mental Health Act 1983
7.	Section 7 provides for the circumstances in which guardianship is permissible:
7	Application for guardianship
(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 ... 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.
8.	Section 8 provides the effect of guardianship:
8	Effect of guardianship application, etc
(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, approved mental health professional or other person so specified. 
Section 18(3) provides that a person who leaves the place of residence specified under this section may be taken into custody and returned to the residence. 
9.	Section 66(1)(c) provides that a person subject to guardianship may apply to the First-tier Tribunal. Section 72(4) provides for the powers of the tribunal on an application:
72	Powers of tribunals
…
(4)	Where application is made to the appropriate tribunal by or in respect of a patient who is subject to guardianship under this Act, the tribunal may in any case direct that the patient be discharged, and shall so direct if it is satisfied— 
(a)	that he is not then suffering from mental disorder; or 
(b)	that it is not necessary in the interests of the welfare of the patient, or for the protection of other persons, that the patient should remain under such guardianship.
D.	The grounds of appeal
10.	Mr M’s solicitors put forward two grounds of appeal. 
11.	The first ground was that the DOLS authorised the home in which Mr M was living to deprive him of his liberty. The tribunal would have realised this if it had seen the declaration made by the Court of Protection. So, Mr M was not free to leave the home if he were discharged from guardianship.
12.	The second ground was that the tribunal misunderstood the Court of Protection’s findings on Mr M’s capacity. Moor J had found that Mr M lacked litigation capacity in relation to the issues in the case and the capacity to decide on the restrictions relevant to supporting his residence and care. The First-tier Tribunal, on the other hand, had found that he had capacity to determine where it would be in his best interests to live. There was, therefore, a contradiction in respect of Mr M’s capacity to decide where to live.  
E.	The grant of permission to appeal
13.	The First-tier Tribunal gave permission on the ground that ‘there is an arguable case in law and this is a matter which should be considered by the Upper Tribunal.’
F.	The submissions by the parties
	For the Council
14.	In response to the appeal, the Council has argued that the issue for the First-tier Tribunal was whether Mr M was suffering from a mental disorder such that it was in the interests of his welfare or for the protection of others that he remain subject to guardianship. The tribunal also had a residual discretion to direct a discharge even if those conditions were not satisfied, but Mr M’s solicitors have not made any argument on that discretion. 
15.	The Council supports the tribunal’s findings that Mr M had capacity to decide where to live, but not to decide the level of supervision he required. It was entitled to decide as it did on the evidence. 
16.	Although there is a fine line between the guardianship and the DOLS, there are important differences. 
•	DOLS assumes that the person lacks capacity to make the relevant decisions in their best interests. Guardianship is not based on an assessment of the person’s best interests. 
•	DOLS cannot impose a requirement that the person reside at a particular address, whereas a guardian can. And, I add, section 18(3) allows this to be enforced by taking the person into custody and returning them to their required residence. 
•	DOLS cannot authorise anyone to give, or consent to, treatment for someone with a mental disorder. That is the effect of section 28 of the Mental Capacity Act 2005 read together with Part IV of the Mental Health Act 1983 and the definition of ‘patient’ in section 145(1) of that Act.
	For Mr M
17.	In reply to the Council’s submission, Mr M’s solicitors have argued that, being subject to the DOLS, Mr M is lawfully deprived of his liberty under the Mental Capacity Act. In view of the following passages from the Code of Practice, the tribunal was obliged to consider the practical effect of the DOLS:
26.10 Where patients lack capacity to make some or all important decisions concerning their own welfare, one potential alternative to guardianship will be to rely solely on the MCA – especially the protection from liability for actions taken in connection with care or treatment provided by section 5 of the MCA. While this is a factor to be taken into account, it will not by itself determine whether guardianship is necessary or unnecessary. AMHPs and doctors need to consider all the circumstances of the particular case.
26.13 However, it will not always be best to use guardianship as the way of deciding where patients who lack capacity to decide for themselves must live. In cases which raise unusual issues, or where guardianship is being considered in the interests of the patient’s welfare and there are finely balanced arguments about where the patient should live, it may be preferable instead to seek a best interests decision from the Court of Protection under the MCA.
G.	Analysis 
18.	The First-tier Tribunal is a statutory tribunal established under section 3(1) of the Tribunals, Courts and Enforcement Act 2007. As such, it has only the jurisdiction conferred on it by statute: Evans v Bartlam [1937] AC 473 at 480. In this case, that jurisdiction was conferred by section 72(4) of the Mental Health Act 1983: see paragraph 9. That limits the issues that the tribunal may consider.
19.	This does not mean that other issues, and other legislation, may not be relevant. In particular, whether ‘it is necessary … that the patient should remain under … guardianship’ may require a consideration of the Mental Capacity Act 2005. It is possible that a DOLS may in the circumstances of the case provide sufficiently for the person’s welfare and the protection of others so that guardianship is not necessary for the purposes of section 72(4)(b). I explained the relationship between DOLS and the tribunal’s mental health jurisdiction in DN v Northumberland Tyne and Wear NHS Foundation Trust [2011] UKUT 327 (AAC).
20.	Ideally, this requires the tribunal, in a case where the issue arises, to be alert to the potential relevance of a DOLS to the issues it has to decide under the Mental Health Act. I accept the differences set out by the Council: see paragraph 16. This list is not necessarily comprehensive. Nor, on the other hand, is it always necessary for a tribunal to consider each difference; that will depend on the circumstances of the particular case. For example, guardianship may not be necessary for a person who is physically unable to leave a care home, whereas this is not necessarily the case for a person who has the will and ability to abscond. In this sense, I accept the argument by Mr M’s solicitors that the it is necessary to take account of the practical effect of a DOLS.
21.	An ideal set of reasons would identify the relevant legal differences and include findings of fact sufficient to show their significance to the legal criteria set out in section 72(4). But the law does not require that tribunals meet such a high standard; it requires only that the reasons be adequate. The issue for the Upper Tribunal is whether, as a matter of substance rather than form, the reasons reach the legal standard. 
22.	The tribunal was aware of the argument that the DOLS was sufficient. It decided that the issue had to be decided on the circumstances of the individual case. That is what paragraph 26.10 of the Code says and what the law would be without the Code. There is no rule that a DOLS always trumps guardianship, any more than there is a rule that guardianship inevitably trumps a DOLS. 
23.	The tribunal’s analysis, identified the conditions that had to be satisfied if Mr M were to remain subject to guardianship. The key to the case was where Mr M would live. It found that he would not remain in the home without being subject to the guardianship. For practical purposes, he might not be able to abscond from the home itself, but he had opportunities to do so when he was on escorted leave. He needed to be in the home, or in a similar environment, if he were to preserve the continuity of his treatment. That treatment was not complete to the point where he was able to control his behaviour towards children. Without that treatment, children would be at risk if he were able to make contact with them. And that would expose him to the risk of retaliation; he had been frightened when a relative had remonstrated with him in the past. Each of those steps is soundly based in the evidence before the tribunal. 
24.	The tribunal’s analysis also justified the need for guardianship despite the DOLS. Again, the key was the power of the guardian to stipulate not just that it would be in Mr M’s best interests to remain in the home, but that he was required to do so. And that carried with it, although the tribunal did not refer to this, the power to ensure his return. It was essential to retain those powers, given that Mr M lacked the capacity to regulate his behaviour without the treatment and supervision for which his continued residence at the home was necessary. 
25.	Bringing together those two strands of analysis on section 72(4) (paragraph 23) and the relationship with the DOLS (paragraph 24), the tribunal’s reasons are in substance adequate to explain and justify its decision. There is no error of law in the decision or in the reasons given for it.
26.	I do not accept the argument put by Mr M’s solicitors that a DOLS is sufficient protection as it allows the home to prevent Mr M leaving. That argument does not deal with the possibility that he may abscond, especially given his wish to live elsewhere and the tribunal’s findings that he is devious in the pursuit of his own objectives. This is a limitation inherent in the nature of a DOLS; nothing in the Court of Protection’s declaration could have affected this reasoning.
27.	Nor do I accept that there is any error in respect of the tribunal’s finding on Mr M’s capacity. Moor J was not considering issues of enforced residence in the sense allowed by guardianship. 
28.	I accept the solicitors’ argument that paragraphs 26.10 and 26.13 of the Code of Practice are relevant. But all they say is that guardianship and a DOLS may or may not both be appropriate, depending on the circumstances of the case. Those paragraphs do not dictate, or even point towards, a particular outcome. That was for the tribunal to decide. 
29.	Standing back from the detail of the arguments and the complexity of the legislation, the two Acts deal with different issues. The Mental Capacity Act deals with the person’s best interests, whereas the Mental Health Act deals with protection of the patient and the public. Each is subject to different adjudication procedures before different judicial bodies. It is fortunate that the flexibility of the tribunal system permits judges to sit simultaneously in both the Court of Protection and the Upper Tribunal, as Charles J is doing at the moment in the KC case, which allows a coordinated approach to their respective issues.  That was not possible in this case. The First-tier Tribunal dealt properly with the issues within its jurisdiction, and in particular with the protective role of guardianship, which is why I have dismissed the appeal. 

Signed on original
on 18 March 2015	Edward Jacobs
Upper Tribunal Judge