Is it really the case that people with dementia or learning disability are never going to be within the definition of people amenable to guardianship?

No. It is plain that dementia is a mental illness, and in law, the test of that concept is an objective, rather than a professional diagnostic one (>Re W). But it is true that most learning disabled people will be excluded by the statutory provisions setting out the conditions for guardianship, because the guardianship sections in the Act were intended only to cover those who are severely mentally impaired.

The test for guardianship is set out below and is found in s7 Mental Health Act:

A guardianship application may be made in respect of a patient on the grounds that:-

(a) he is suffering from mental disorder, being mental illness, severe mental impairment, psychopathic disorder or mental impairment and his mental disorder is 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.

(3) A guardianship application shall be founded on the written recommendations in the prescribed form of two registered medical practitioners, including in each case a statement that in the opinion of the practitioner the conditions set out in subsection (2) above are complied with; and each such recommendation shall include:-

(a) such particulars as may be prescribed of the grounds for that opinion so far as it relates to the conditions set out in paragraph (a) of that subsection; and

(b) a statement of the reasons for that opinion so far as it relates to the conditions set out in paragraph (b) of that subsection.

The definition of severe mental impairment, and even non-severe mental impairment, for the purposes of guardianship coverage, is very tight. For severe mental impairment or mental impairment to be certified, the clinician has to be able to certify that there is seriously irresponsible conduct or abnormal aggression associated with the individual in respect of whom the application has been made. What stops most clinicians from saying this criterion is made out, is their confusion as to whether they should be assessing the person in notional isolation, as it were, rather than in the setting in which they are currently placed, where their daily living will no doubt be being managed/controlled by their carers, at least to a certain extent.

It is our firm view that the whole point of assessment of someone’s situation, whether for the Mental Health Act powers of sectioning, or guardianship, or ordinary assessment, is that the ‘need’ should be assessed on its own, before the current means of meeting that need are evaluated. Unless that is done, there is no way of deciding, as is required by the terms of the legislation, whether any local authority arranged social services are ‘called for’, or whether guardianship or admission under a ‘section’ is ‘warranted’.

On that basis, the daily living difficulties of persons with medium to severe dementia or learning disability will be much more likely to be able legitimately to be associated with ‘seriously irresponsible conduct’ within the statutory definition (without that term being necessarily pejorative or judgmental).