I’ve been trying to find out if a person can be on a CTO based on a s37(n) and simultaneously a guardianship under Part 2 of the Act.
S8(5) says guardianship extinguishes any previous Part 2 order, and the Reference guide Chapter 26.136 suggests that a part 2 guardianship wouldn’t extinguish a Part 3 CTO.
Section 40(5) says a guardianship order extinguishes any previous hospital order, but presumably this means a Part 3 guardianship order?
I have a few questions.
What was the sequence of events? Was the Guardianship up and running prior to the notional 37?
Or were the Guardianship and CTO considered at the same time to support discharge?
What is the Guardianship adding to the aftercare plan what the CTO cannot provide?
Thanks for responding
The Guardianship allows an enforceable condition of residence, and the CTO is really just to encourage the reluctant 117 authorities to provide community support.
Currently only the s37(n) is in place.
Guardianships order is to put someone in a place of residence (because the patient is not willing to go and deemed to have capacity) and cannot co-exist with a hospital order as Guardianship is for community settings. The CTO is a treatment (not residential) order, to “impose” treatment (as an analogue extension of a Section 3 of the MHA), with CTO you can recall to Hospital if needed for treatment. I believe is feasible and lawful to do it although does not look ideal, nor good practice, although, depends on the circumstances and the risks involved.
Hypothetically and in that note, you could also put a DOLS.
So a Guardianship is to put a patient somewhere to live, CTO to assure treatment and a DOLS to prevent him to leave the premises. This is obviously all hypothetical.
For the reasons you give, I agree it’s legally possible to have a Part 3 CTO and a Part 2 guardianship in parallel, provided the CTO is in place first.
At first sight it seems anomalous, because you can’t do the same if both the CTO and guardianship are under the same Part.
But it is consistent with the approach throughout the Act that Part 2 applications should not be able to interfere with Part 3 orders.