Primacy of guardianship over Mental Capacity Act

 

12th January 2012

C (by the Official Solicitor) v. Blackburn with Darwen BC, A Care Home and Blackburn with Darwen NHS Trust [2011] EWHC 3321 (COP) (Mr Justice Peter Jackson- sitting at Preston). An important case in which C was subject to guardianship under Mental Health Act and required to live in the care home where he was also subject to Sch A1 standard authorisation (or DOL). He sought discharge from the DOL under s. 21A MCA but also a wider best interests declaration that he should reside elsewhere. Peter Jackson J determined that (a) C was not deprived of his liberty (applying Cheshire West) therefore the DOL was discharged; (b) Citing with approval the decision of Charles, J. in GJ v The Foundation Trust the MHA has precedence over the MCA where they clash, including in a case like this - consequently for the Court to make a best interests decision on the issue of residence would be outside its jurisdiction; (c) if the Judge was wrong about (b) he would still consider it to be unlikely, save in the most exceptional circumstances, that the COP would rule against a decision of a guardian because the MHA had its own proper procedure for the creation and discharge of guardianship. Simon Burrows acted for the NHS, instructed by Hempsons of Manchester.

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