Supreme Court decision - 16/17 year olds, parents and consent to confinement

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6 min read

We were very pleased, having represented the NHS Trust in the first phase of this matter, to read the Supreme Court’s judgment.

The case primarily relates to whether it is within the scope of parental responsibility to consent to living arrangements for a 16 or 17 year old child that would otherwise amount to a deprivation of liberty, in particular where the child lacks the mental capacity to make the decision for themselves.

In the words of Lady Hale (who has clearly been very busy recently!): “the case is about the interplay between the liberty of the subject and the responsibilities of parents, between the rights and values protected by Article 5 and the rights and values protected by Article 8, and between the relationship of parent and child at common law and the Convention rights.”

Court’s decision

In summary, the Supreme Court ruled that where a 16 or 17 year old child cannot/does not give consent to a care regime that would meet the Cheshire West “acid test” (under continuous supervision and control and not free to leave) this means that court authorisation not parental authorisation is required to make the deprivation of liberty lawful.

Background

D was diagnosed with attention deficit hyperactivity disorder, Asperger’s syndrome and Tourette’s syndrome at various stages of childhood and has a mild learning disability. Aged 14, D was admitted to a hospital providing mental health services for assessment and treatment with the consent of his parents. D lived in the hospital grounds. Notably, the external door was locked, D was checked on by staff every half hour and was accompanied at all times when he left the site.

In 2014, Mills & Reeve acted for the Hospital Trust in issuing an application to the High Court under its inherent jurisdiction seeking a declaration that it was lawful to deprive D of his liberty in this manner (Re D (A Child) (Deprivation of Liberty) [2015] EWHC 922 (Fam)).

Mr Justice Keehan held that, while the situation did amount to the deprivation of D’s liberty, it was within the proper exercise of parental responsibility to consent to his constant supervision while he was under 16. Once he turned 16 D would come under the jurisdiction of the Court of Protection.

It was agreed that D was to be discharged from hospital and Birmingham City Council arranged to accommodate him under section 20 Children Act 1989 as a “looked after child”. On D’s 16th birthday, proceedings were issued in the Court of Protection.

In the Court of Protection, Mr Justice Keehan held that D’s parents could no longer consent to what would otherwise be a deprivation of liberty once D had reached 16. He distinguished the legal status of those who had reached the age of 16 from that of those who had not and reiterated that the Mental Capacity Act 2005 now applied given D’s age.

The Council appealed to the Court of Appeal. Before the hearing, D was transferred to a second, similar residential placement. Once more his parents agreed and Mr Justice Keehan authorised this as being in D’s best interests.

The Court of Appeal agreed with Mr Justice Keehan that D’s accommodation in the hospital and on the residential placements was attributable to the state. The result of the Court of Appeal’s decision appeared to be that parents could consent to a confinement if their child was under 18 and unable to consent themselves. The Supreme Court has overruled this following an appeal by the Official Solicitor.

The Supreme Court allowed the appeal by a majority of 3 to 2. Lady Hale summarised the case as turning on the interaction between parental responsibility (under the Children Act 1989), common law and other relevant statutory provisions and the State’s obligations to protect the human rights of children under the ECHR.

The issue

Lady Hale considered the crux of the issue under Article 5 to be whether the restrictions fall within normal parental responsibility for a child of D’s age; if they do, they will fall within the scope of Article 5, but if they go beyond ordinary parental responsibility, in general terms Article 5 will apply.

Lady Hale found that the degree of restriction D was subject to was not normal for a child of 16 or 17 years old and would have amounted to a deprivation of liberty in the case of a child who did not lack capacity. In considering whether D’s mental capacity made a difference, she discussed that as per the case of Cheshire West and Chester Council v P, the living arrangements of mentally disabled people had to be considered against those that are normal for people who did not have those disabilities, therefore concluding that D’s mental disability did not make a difference.

Lady Hale concluded that it was not within the scope of parental responsibility for D’s parents to consent to a placement that deprived him of his liberty. She concluded that although there was no doubt everyone involved had D’s best interests in mind, this might not always be the case and regard must be had for the safeguards required by Article 5.

Those aged under 16

Lady Hale said that logically, the conclusion she had reached in relation to those over 16 would also apply to a younger child whose liberty was restricted to an extent that was not normal for a child of his age. However, this question did not arise in the case and she was not asked to express a view on this issue.

Lady Black also expressed a desire to leave this separate question “entirely open” to be decided in a case in which it arises. This means that for those aged under 16 the position remains the same in terms of parents being able to consent to a deprivation as the court did not rule on this point. However, these comments would appear to leave open the issue of those under the age of 16 and we anticipate further litigation on this point.

Practical implications

Alex Ruck Keene who acted for the Official Solicitor has helpfully described the implications of the judgment as dramatic but somewhat mitigated by the Law Commission’s Mental; Capacity and Deprivation of Liberty report and the Liberty Protection Safeguards (to come into force in October 2020). These include 16 and 17 year olds within its potential scope. He explained that in light of this judgment, and in preparation for LPS enforcement, public authorities will need to consider the circumstances of 16 and 17 year olds for whom they are responsible and additionally, be alert to “private” confinements of which they know or ought to know of.

Ahead of the LPS, lawful authority for the deprivation of liberty of a person under 18 would need to be provided, subject to the individual circumstances, through a court order from the High Court under its inherent jurisdiction or the Court of Protection, under section 25 of the Children Act 1989 or the Mental Health Act.

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