The Supreme Court was all over the news last week after they ruled that Boris Johnson’s suspension of Parliament was unlawful. Two days later the judges were back in court to deliver another important Judgement. In the long anticipated judgement, of D (A Child), Supreme Court ruled that parents cannot consent to living arrangements for a 16 or 17-year-old child which would otherwise amount to a deprivation of liberty.

Essentially, this means that parents cannot okay arrangements that would amount to a deprivation of liberty for their 16 or 17 year old children who lack capacity to consent to those arrangements themselves.  If such an arrangement is not legally authorised, the deprivation will be unlawful. Whether a care arrangement is or is not a deprivation of liberty, is determined by  the ‘acid test’ as previously set out by the Supreme Court.

What is a Deprivation of Liberty and Why Does it Matter?

That probably sounds like a lot of legal jargon, but basically it comes down to this: through our Human Rights Act, we all have the right to Liberty, including children.  However, this is not an absolute right, meaning a person’s right to liberty can be limited in certain, very specific circumstances. These include the imprisonment of people convicted of crimes, or detention under the Mental Health Act. Depriving someone of their liberty can be a big interference with their life and their rights so the appropriate legal safeguards must be followed. If the safeguards are not followed, even when the situation is one that liberty can be restricted, such a restriction would not be lawful.

In 2014 the Supreme Court delivered the Cheshire West judgment which introduced the ‘acid test’ to work out when there has been a deprivation of liberty in a care setting. The 'acid test' for deprivation of liberty is whether the person is under continuous supervision and control and is not free to leave. The following are not relevant:

(a) the person's compliance or lack of objection;

(b) the relative normality of the placement (whatever the comparison made); and

(c) the reason or purpose behind a particular placement.

Due to the potential vulnerability of people in a care setting decision-makers should err on the side of caution in deciding what constitutes a deprivation of liberty. You can read our blog on the Cheshire West case and its impact here.

If the circumstances in which this person is living in meet the “acid test” (they are subject to continuous supervision and control and not free to leave) they are being deprived their right to liberty. This means the relevant procedures, which is currently the Deprivation of Liberty Safeguards (DoLS) but will soon be replaced by the Liberty Protection Safeguards (LPS), need to be implemented to protect their rights. This must be the position because human rights are universal, which means they belong to all people equally; they are not different for different people. As Lady Hale said in the Cheshire West case, if something would be a deprivation of liberty for her, so too it would be for a disabled person or any other. The deprivation may be permissible, if the right safeguards are followed, but it is still a deprivation.

Background to the Case

D, now 20 years old, has attention deficit hyperactivity disorder, Asperger’s syndrome and Tourette’s syndrome. He also has a mild learning disability. He initially lived with his parents in the family home. However when he was he was 14, D was informally admitted to a hospital for multi-disciplinary assessment and treatment.

He lived in a unit in the hospital grounds and attended a school there. The external door to the unit was locked and D was checked on by staff every half hour. If he left the site, he was accompanied by staff on a one to one basis. The Family Division of the High Court found that this living situation amounted to a deprivation of D’s liberty. They said the arrangement was “within the zone of parental responsibility” for D’s parents to agree to what would otherwise be a deprivation of liberty. However, when D reached 16 he would come under the jurisdiction of the Court of Protection and this means a different regime would apply, largely contained in the Mental Capacity Act.

Court of Protection Decision

By the time the High Court judgement was made, D’s clinical team had decided that he should be moved to a residential placement. When D turned 16, Birmingham City Council (who had arranged the residential placement) applied to the Court of Protection for declaration that D would not be deprived of his liberty at the residential placement because his parents could consent to it. All involved agreed that D’s living arrangements in the residential placement would amount to deprivation of liberty if his parents had not consented. The Court of Protection found that D’s parents could no longer consent to what would otherwise be a deprivation of liberty now that D had reached 16.

The Judge reasoned that Parliament had, on numerous occasions, distinguished the legal status of those who had reached the age of 16 from that of those who had not. In particular, the Mental Capacity Act 2005 applies to people who have reached the age of 16.

Court of Appeal

Birmingham City Council appealed the decision to the Court of Appeal. Before the hearing D was transferred to a new residential placement, however, the day to day situation was the same as the previous placement. His parent’s consented to the new placement. In the time between the Court of Appeal hearing the case and the judgement being given, D turned 18 and parental responsibility for him ceased.

The Court of Appeal found that the Court of Protection had been wrong to hold that a parent could not consent to what would otherwise be a deprivation of the liberty of a 16 or 17- year-old child who lacked the capacity to decide for him/herself. They reasoned that the exercise of parental responsibility comes to an end, not on the child’s attaining a fixed age, but on his attaining “Gillick capacity”.  Gillick capacity (or competency) is when the young person has enough understanding and intelligence to fully appreciate what is involved in their treatment, and they are therefore legally  able to consent for themselves. The Court also stated that the statutory provisions referred to by the Court of Protection which distinguished the legal status of those who had reached the age of 16 from that of those who had not did not have any bearing on this particular case.

The Supreme Court

The main issue before the Supreme Court was: is it within the scope of parental responsibility to consent to living arrangements for a 16 or 17-year-old child which would otherwise amount to a deprivation of liberty within the meaning of the right to liberty (Article 5, as set out in the HRA)?

The Supreme Court concluded that it is not within the scope of parental responsibility for parents of a 16/17 year old to consent to living arrangements which deprive that young person of their liberty.

In her judgement Lady Hale points out that the Gillick test is not directly relevant here as that is about consent to treatment and not deprivation of liberty. She states that allowing parental consent to living arrangements for a 16 or 17-year-old child which would otherwise amount to a deprivation of liberty:

“would be a startling proposition that it lies within the scope of parental responsibility for a parent to license the state to violate the most fundamental human rights of a child: a parent could not, for example, authorise the state to inflict what would otherwise be torture or inhuman or degrading treatment or punishment upon his child.”

Therefore, it is not within the scope of parental responsibility for D’s parents to consent to a placement which deprived him of his liberty. Although in D’s case there was no doubt that everyone involved had D’s best interests at heart, this may not always be the case. Safeguards are needed to ensure that those with parental responsibility exercise it in the best interests of the child. Lady Hale goes on to say:

“Logically, this conclusion would also apply to a younger child whose liberty was restricted to an extent which was not normal for a child of his age, but that question does not arise in this case.”

However, this was not directly dealt with in this case and the other judges are keen to keep the question open.

What does this mean in Practice?

This means that even if a parent(s) (or person with parental responsibility) consents to the living arrangements for a young people of 16 or 17 who lack capacity to consent to those arrangements themselves, court authorisation will now have to be sought.  If court authorisation is not sought, the arrangements will not be lawful.

As mentioned previously, the Deprivation of Liberty Safeguards (DoLS) will soon be replaced by the Liberty Protection Safeguards (LPS). Although the Mental Capacity Act applies to over 16s, the DoLs only applied to over 18s, creating a legal gap of protection for 16 and 17 year olds. The new LPS will also apply to 16 to 17 year olds, further closing this legal gap.