In the matter of D (A Child) [26.09.19]
The recent Supreme Court case of Re D (A Child) will have some immediate practical and cost implications for public bodies that commission services for 16 and 17 year old young people, particularly local authorities and NHS Clinical Commissioning Groups.
The case has a long legal history. D had been diagnosed with attention deficit hyperactivity disorder (aged four), Asperger syndrome (aged seven) and Tourette’s syndrome (aged eight). He lived with his parents until the age of 14 when he was informally admitted for assessment and treatment, living on the grounds of a mental health unit. His external door was locked and he was checked every half an hour. Outings and home visits were supervised.
In 2015 D was 15 years old. The relevant hospital Trust sought a court declaration that his confinement be authorised. In the High Court, Keehan J held that Article 5 of the European Convention of Human Rights, which protects against the unlawful deprivation of liberty, was engaged and his parents could consent to his confinement, but when he turned 16 his care was under the jurisdiction of the Court of Protection. D later moved to a residential placement funded by Birmingham City Council (BCC).
On his 16th birthday, BCC sought a declaration in the High Court that D was not deprived of his liberty because his parents consented to it. In summary, Keehan J held that they could not consent, there were lots of examples where the law treated 16 and 17 year olds differently, and the Court of Protection had jurisdiction, so a best interests test applied.
BCC appealed. They argued the legal concept of ‘parental responsibility’ included the ability of parents to consent to the confinement of 16 and 17 year olds who were not Gillick competent (Gillick competency being where a child achieves sufficient understanding and intelligence to understand fully proposed medical treatment). Further, that common law parental responsibility had not been eroded by the Mental Capacity Act 2005 (MCA) – if it had been eroded, it only substituted lack of capacity for lack of competence in the Gillick sense.
The Equality and Human Rights Commission (as intervenor) argued that parental responsibility should not allow parents to remove Article 5 protections from non-Gillick competent young people, to do this would be discrimination. In summary, the Court of Appeal decided that where a young person cannot make a decision for themselves (i.e. because they are not Gillick competent) then parental responsibility is sufficient, even if the Cheshire West ‘acid test’ is met and it is imputable to the State. This judgment was to some extent a relief for public bodies as it removed the need for costly court applications. However, the Official Solicitor appealed to the Supreme Court.
Lady Hale (with whom the majority of Supreme Court Justices agreed) identified the crux of the matter (at paragraph 39) as follows:
Do the restrictions fall within normal parental control for a child of this age or do they not? If they do, they will not fall within the scope of Article 5; but if they go beyond the normal parental control, Article 5 will apply (subject to the question of whether parental consent negates [a subjective lack of valid consent]…).
In summary, the Supreme Court found that nothing in European Court of Human Rights case law allowed parental consent to oust Article 5 rights and the fact that a young person lacked mental capacity to consent to their confinement was not relevant to whether they were deprived of their liberty. Further, the Supreme Court found that it was not within parental responsibility for D’s parents to have consented to his deprivation of liberty when he was a young person. Lady Hale said at paragraph 49 of her judgment:
“Although there is no doubt that they, and indeed everyone else involved, had D’s best interests at heart, we cannot ignore the possibility, nay even the probability, that this will not always be the case. That is why there are safeguards required by Article 5. Without such safeguards, there is no way of ensuring that those with parental responsibility exercise it in the best interests of the child, as the Secretaries of State acknowledge that they must”.
It is now clear it is the State (and not the parents) that authorises deprivations of liberty for young people who lack the mental capacity to consent to the same. It should be noted that the Supreme Court made it very clear that this case only relates to living arrangements, and the law relating to other matters (for example, medical treatment) is not affected.
So, what does this mean in practice? Public bodies that assess and commission services for 16 and 17 year old clients should consider making court applications for State authorisation for any such clients who lack capacity and whom they know are deprived of their liberty. This is especially so, given that the new Liberty Protection Safeguards (expected to come into force in October 2020) will apply to 16 and 17 years olds, unlike the current Deprivation of Liberty Safeguards which they will replace. In addition, NHS Trusts that rely on parental consent to accommodate and confine 16/17 year old informal patients should consider making applications as well.
