My brother is on a community based CTO in Scotland. Im his named person. I’ve initiated a request for transfer to England and the MHO and RMO response was hes now been classed as having no capacity all of a sudden and we need to apply for a guardianship order. They’ve never processed our transfer request and never provided an answer. There is no guardianship order in place. My britegr has said multiple times he wants to come home but they are using the guardianship order as a block as hes been with them for years and his issues haven’t changed in fact hes become worse but they’ve never previously wanted guardianship to assist him and never mentioned to me that he lacks capacity until I made the request. They wont process the request at all. What can I do. They oppose the CTO transfer and the guardianship. The RMO said there is no clinical reason why he cant transfer and no risks have been raised.
Not sure what’s going on here
The RMO has to take a decision about the transfer regardless of any issues about guardianship. Patients who lack capacity can be transferred without having a guardian.
Perhaps worth asking for clarification ? Are they pointing to some practical problem about your brother having capacity to sign a tenancy in England, or something like that ? If so, that might be a stumbling block to making a transfer happen, but it’s not an excuse for simply refusing to make a decision on the transfer request. And, in any case, it would probably be a matter for English mental capacity law, not Scottish (a Scottish guardianship wouldn’t have effect in England without it being endorsed by an English court).
The Mental Welfare Commission’s advice line might be able to help (though it won’t give specific legal advice) - Contact us | Mental Welfare Commission for Scotland
If you can’t get anywhere with the RMO, you should be able to complain to the relevant NHS Board.
Hi Richard thanks for your reply. I made the request 1 year ago as I’m named person but was ignored. I made complaints and escalated it to the ombudsman and they promised to act on it but never did. Soon after they declared him as having no capacity and said he needs a guardianship order to decide where he lives. They opposed family being the guardian due to us living in England. And now they’re opposing the community based CTO transfer for the same reasons. The RMO said at the tribunal a few weeks back there are no clinical reasons why he cant come back. The statutory duties for the transfer were never considered let alone processed. I contacted the welfare commission and they were baffled by what they were doing and said they’d check both them but they dont really get back in touch with you. Tribunal adjourned until tomorrow due to my appeal and wanting the transfer. The MHO and RMO report the tribunal requested states there are no equivalent provisions in England in order to transfer a community based patient so he would need a guardianship order to allow someone to make the decision over where he lives but of course there have been CTO equivalent provisions in England since 2007! I’ve spoken to our local mental health team who have confirmed they take referrals and currently have vacancies.
Oh I see.
I find it a little hard to believe that a guardianship order is the only way that a transfer could be achieved (for example, there’s a thing called an intervention order for one-off decisions, although that also means going to court).
It also seems odd that they’re saying he needs guardianship, but the local authority hasn’t itself applied for it (which I thought they were meant to do if no-one else will).
But I really don’t know enough the Adults with Incapacity Act in Scotland to be of any use to you. I fear you’re going to need a Scottish incapacity lawyer.
If you don’t actually agree that he lacks capacity to decide whether to move back to England, presumably you could ask for a second opinion, or commission one yourself - though again I don’t know what the process for that would be in Scotland.