Related Sector: Health & Social Care
In the matter of D (a child) 2019 UKSC 42 (Hale, Carnwath, Black, Lloyd-Jones and Arden SCJJ)
The Supreme Court on the 26th September 2019 delivered a landmark judgment on deprivation of liberty in the context of Article 5 involving 16/17 year olds
The details of this case emerged first in 2015 and involved a 15 year old child, D, who was diagnosed with attention deficit hyperactivity disorder, Asperger’s syndrome, and Tourette’s syndrome. He also had a mild learning disability. During his childhood his parents struggled to look after him in the family home due to the many difficulties presented by his challenging behaviour. Eventually, in October 2013 when he was 14, due to his parents being unable to cope any longer, he was informally admitted to a psychiatric hospital for multi-disciplinary assessment and treatment.
The hospital trust responsible for his care and treatment identified that he was objectively confined and due to the care and treatment being imputable to the state applied to the High Court under the inherent jurisdiction for authorisation. The Trust were unsure whether the parents could subjectively consent to D’s confinement.
In Re D (A Child) (Deprivation of Liberty)  EWHC 922 (Fam) Keehan J held that the fact that his parents were consenting to the confinement meant that this met the subjective element of the legal criteria meaning he was not deprived of his liberty.
D was then subsequently discharged from hospital and confined in a residential placement with his parents’ agreement under section 20 of the Children Act 1989. The restrictions D was placed under included the external doors being locked, D not being allowed out unsupervised, one to one support during waking hours and staff were in constant attendance overnight. The Local Authority who had placed D felt that although this amounted to objective confinement, the parents could subjectively consent to the placement meaning therefore that this again was not a deprivation of liberty.
In Birmingham City Council v D  EWCOP 8 Keehan J held that D’s parents’ continuing consent to the arrangements could not be relied upon after he turned 16 which would have satisfied the subjective element and prevent his circumstances being seen as a deprivation of liberty for purposes of Article 5 ECHR.
Court of Appeal
In D v Birmingham City Council  EWCA Civ 1695 the Court of Appeal overturned this decision which was controversial and the decision was immediately appealed.
D (A Child) UKSC 42 the Supreme Court declared that D was at all the material times to be seen as deprived of his liberty for purposes of Article 5 ECHR.
KEY ISSUE IN THE CASE
Whether or not a parent within the zone of their parental responsibility can consent to a deprivation of liberty for a 16 or 17 year old who lacks the capacity to consent to the accommodation for their care and treatment.
As Lady Hale identified, the case was about:
3. […] 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. The principal issue can be simply stated: 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 article 5
The Supreme Court has held where a 16 or 17 year old child cannot (or does not) give their own consent to circumstances satisfying the ‘acid test’ in Cheshire West, and if the state either knows or ought to know of the circumstances, then the child is to be seen as deprived of their liberty for purposes of Article 5 European Convention of Human Rights, and requires the protections afforded by that Article. That is so whether or not their parent(s) are either seeking to consent to those arrangements if imposed by others or directly implementing them themselves.
Article 5 requires three limbs, or 3 basics to be satisfied which then enables us to identify if there is a deprivation of liberty which falls within its scope
(a) the objective element of confinement in a particular restricted place for a not negligible length of time;
(b) the subjective element of lack of valid consent; and
(c) that the confinement is imputable to the state ie the state is responsible
Lady Hale considered the crux of the issue under Article 5 to be:
39. […] whether 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 limb (b) of the Storck criteria […]).
In contrast to the Court of Appeal, she found that “quite clearly,”
the degree of supervision and control to which D was subject while in Placement B and Placement C was not normal for a child of 16 or 17 years old. It would have amounted to a deprivation of liberty in the case of a child of that age who did not lack capacity. The question then arises what difference, if any, does D’s mental disability make?
Lady Hale found, further, that there was no support in Strasbourg case-law for a parent (or anyone else) to give substituted consent so as to take a confinement out of the scope of Article 5 ECHR. She considered that, in cases where it was said that valid consent had been given, “it is because the evidence showed that the person concerned was willing to stay where he or she was and was capable of expressing that view” (para 42).
Birmingham had, at an earlier stage, argued that the fact that D was placed subject to the agreement of his parents (recorded under s.20 Children Act 1989) meant that the confinement to which he was subject was not imputable to the state. Before the Supreme Court, Birmingham abandoned that argument, “rightly so,” according to Lady Hale:
43. […] Not only was the State actively involved in making and funding the arrangements, it had assumed statutory responsibilities – albeit not parental responsibility – towards D by accommodating him under section 20 of the Children Act 1989, thereby making him a “looked after child”. Even without all this, it is clear that the first sentence of article 5 imposes a positive obligation on the State to protect a person from interferences with liberty carried out by private persons, at least if it knew or ought to have known of this: see, for example Storck, para 89.
All three requirements for a deprivation of liberty had been met, a conclusion Lady Hale considered to be:
45. […] consistent with the whole thrust of Convention jurisprudence on article 5, which was examined in great detail in Cheshire West. But it is reinforced by the consideration that it is also consistent with the principle of non-discrimination in article 2.1 of the United Nations Convention on the Rights of the Child, which requires that the rights set out in the Convention be accorded without discrimination on the ground of, inter alia, disability, read together with article 37(b), which requires that no child shall be deprived of his liberty unlawfully or arbitrarily, and article 37(d), which requires the right to challenge its legality. It is also consistent with article 7.1 of the United Nations Convention on the Rights of Persons with Disabilities, which requires all necessary measures to ensure the full enjoyment by children with disabilities of all human rights and fundamental freedoms on an equal basis with other children.
Lady Hale returned back to the concept of parental responsibility to ask whether there was any scope for the operation of parental responsibility to authorise what would otherwise be a deprivation of liberty?
There were two contexts in which this might arise, she considered:
1. Where the parent is the detainer or uses some other private person to detain the child. However, as Lady Hale observed, “in both Nielsen and Storck it was recognised that the state has a positive obligation to protect individuals from being deprived of their liberty by private persons, which would be engaged in such circumstances.”
2. Where the parent seeks to authorise the state to do the detaining. However, Lady Hale considered it 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.” Even if that proposition might not hold good for all the Convention rights, in particular the qualified rights which may be restricted in certain circumstances, “it must hold good for the most fundamental rights – to life, to be free from torture or ill-treatment, and to liberty. In any event, the state could not do that which it is under a positive obligation to prevent others from doing.”
Lady Hale therefore concluded that it was:
49. [….] not within the scope of parental responsibility for D’s parents to consent to a placement which deprived him of his liberty. 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.
Lady Black and Lady Arden agreed with Lady Hale’s reasoning and conclusion therefore decision by majority. Two dissenting Justices.
The practical implications of this judgment will require public authorities to sit up and take note in relation to 16/17 year olds.
Thankfully the Law Commission’s Mental Capacity and Deprivation of Liberty report led to the inclusion of 16/17 year olds within the potential scope of the Liberty Protection Safeguards. This is only of course on the basis that the 16/17 year old lacks the mental capacity to consent to their accommodation for their care and treatment.
The judgment acknowledges the ‘nuancing’ of the acid test used in relation to younger children in Cheshire West, but the message is very much to the effect that there is little nuancing to undertake in relation to those aged 16 or 17. In other words, the acid test is likely to apply to a 16/17 year olds, subject only to the group of young people distinguished in the case of Ferreira in relation to life-sustaining emergency medical treatment in an ICU.
WHAT STEPS SHOULD PUBLIC AUTHORITIES BE TAKING?
- Consider the circumstances of all the 16/17 year olds for whom you have responsibility, whether that be under the Children Act 1989, the Social Services and Well-Being Act (Wales) Act 2014, the Children and Families Act 2014, the NHS Act, or otherwise.
- Be alert to situations where ‘private’ confinements may be under way in relation to 16/17 year olds in their own homes, or in private schools/colleges, because (as Lady Hale has re-confirmed) state imputability arises where the state knows or ought to know of such private confinement.
- If the circumstances of a 16/17 year old meet the ‘acid test’ and they cannot or do not consent to their confinement, then if either those circumstances cannot be changed, or they cannot be supported to consent (freely) to them, lawful authority will be required to deprive them of their liberty (precisely who will need that authority will depend upon the facts of the case).
At present the only “procedures prescribed by law” that can operate to provide the necessary lawful authority are:
(a) The MHA 1983, where this applies – a consequence of this judgment, and of the nature of most psychiatric hospitals/units, most of which give rise to confinement, is that it is most unlikely that there will be any place for informal admission for 16/17 year olds on the basis of parental consent;
(b) Section 25 Children Act 1989, where relevant, and bearing in mind the detailed observations by Lady Black about its scope;
(c) Court of Protection Order
(d) Inherent Jurisdiction of the High Court
Whether to issue in the Court of Protection or the High Court under its inherent jurisdiction will depend upon the facts of the case, but as a general rule it is more likely that the right court will be the Court of Protection. If the right court is the High Court, then the procedure will be as set down by Sir James Munby P in Re A-F (Children) (No 2)  EWHC 2129 (Fam).
Remember though there are two grounds upon which a deprivation of liberty could be justified, and it is important to be clear which ground you intend to rely on as this will dictate the evidence required and the test relied upon.
Article 5(1)(d) – the detention of a minor by lawful order for the purpose of education supervision or his lawful detention for the purpose of bringing him before the competent legal authority or
Article 5(1)(e) – the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants
GOING FORWARD AND GETTING READY FOR OCTOBER 2020
- From October 2020, the situation of 16/17 year olds lacking capacity to consent will fall to be considered under the Liberty Protection Safeguards.
- This judgment reinforces the need for children’s services in local authorities and NHS bodies with responsibility for under 18s to undertake the necessary work to prepare for the LPS
We have been waiting a very long time for this judgement partly due we are guessing to Brexit, but the outcome was widely anticipated and therefore is not surprising at all.
Any public authority with responsibility for 16/17 year olds who lack the capacity to consent to their accommodation for their care and treatment which amounts to a deprivation of liberty will require the protection of the Liberty Protection Safeguards as their confinement falls within the scope of Article 5 of the ECHR
Are you ready strategically and operationally for the impact of this judgment?
Author: Sue Inker, Bond Solon Subject Matter Expert and Adult Social Care Trainer
This article was first published on Friday 27th September 2019.