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The Upper Tribunal in GW v Gloucestershire County Council decided earlier this year that both Guardianship and DOLS can operate together.
The appeal was brought by GW who had Huntington’s disease. She lived in a nursing home. She was received into Guardianship in January 2013 and Deprivation of Liberty was authorised by the Court of Protection in February 2015. It was argued that, in view of the latter, the former was no longer necessary.
The First-Tier Tribunal had, amongst other things, noted that the Court of Protection authorisation did not included powers conferred by section 18 Mental Health Act 1983 (MHA) which was important as the patient was becoming increasingly challenging and her carers had recently had to contemplate seeking help from the police to get her to return to the home.
The Upper Tribunal was of the view that the FTT explained clearly what powers were available to the patient’s guardian and why they were valuable in addition to the powers under the Mental Capacity Act 2005 (MCA) so the appeal was dismissed.
Clearly each case is different but please do not hesitate to contact our healthcare team who regularly deal with the interface between the MHA and MCA should you have any queries.
Partner and Head of Health & Care
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