Mental health law briefing 229 – The zone of parental control: Deprivation of Liberty update
In June 2015 we reported upon an important court judgment1 setting out the circumstances in which a hospital may rely upon parental consent authorising a child’s confinement within that hospital for the purpose of treatment.
The Honourable Mr Justice Keehan, who presided over the above case, concluded that the hospital could rely upon parental consent to mandate the confinement of that child (who was at the time 15 years old), into the care of the hospital for treatment in circumstances where that child was not himself of sufficient maturity or understanding to make the decision himself. The judge noted that the zone of parental authority in situations such as this was not open-ended and would need to be considered in the context of the presenting situation. He observed that parental decisions concerning a five year old are likely to require and justify a greater degree of restriction than those relating to a 15 year old. The judge said the same principle may apply to children affected by differing degrees of need.
The case of this particular child (now aged 16) came again before Mr Justice Keehan in November 2015, and the decision2 has recently been handed down.
The application to the Court of Protection (who now had jurisdiction as the Mental Capacity Act (MCA) applies to those who are over the age of 16 and lack the capacity to make the decision in question) was brought by the Local Authority on the back of plans to move the now 16 year old child out of the hospital and into a residential placement where the circumstances of care were likely to fulfil the objective component of confinement. The Local Authority continued to argue that it could rely upon the parents’ consent in order to mandate the circumstances of care and related confinement which, but for that consent, would amount to an unlawful deprivation of that child’s liberty.
The Local Authority also sought to argue that, as the child was subject to section 20 of the Children Act (placed into the care of, and accommodated by, the Local Authority with the consent of the child’s parents), the confinement was not ‘imputable to the state’ but came about as a result of the parental decision and was not therefore a breach of the child’s fundamental right to liberty as guaranteed by Article 5 of the European Convention on Human Rights (ECHR).
The official solicitor (representing the child as litigation friend) argued that the judge had been wrong in his first decision to find that the hospital could rely on parental consent, and that a parent could never consent to the confinement of their child.
Finding of the court
In considering the opposing arguments, Mr Justice Keehan determined that he had been right to consider that a parent could consent to the confinement of their child in the circumstances before the court at that time. He confirmed that parents in the exercise of their parental duty will often need to restrict and limit the movements of their child, the degree to which this is necessary will gradually lessen over the course of the child’s maturation, and that, citing the example of a boarding school, the parent has it within their power to permit another to limit that child’s movements in the interests of that child, where that child is not able to make the decision themselves.
However, crucially, he disagreed with the Local Authority that it was possible, in the situation that now presented, for the parents to consent to the continuing confinement of their son owing to the fact that he was now 16 years old. In particular, he was persuaded by the argument that the Mental Capacity Act 2005 (MCA) expressly extends itself to 16 year olds. The MCA does not permit a decision-maker to deprive a person of their liberty – which can only be done in these circumstances by way of a statutory authorisation under the Deprivation of Liberty Safeguards (DoLS), or be authorised by the Court of Protection directly.
The judge dismissed the argument that the child was not deprived of his liberty owing to the operation of s20 of the Children Act. He said that the Local Authority had made the arrangements for the child’s accommodation and confinement and that the arrangements were imputable to the authority/state and could not be ducked by way of parental agreement.
The judge went considerably further on this point, indicating that even where the arrangements for the confinement/treatment of a child were made on a purely private basis (i.e. without any state involvement whatsoever), the state would be under a positive obligation under Article 5 of the ECHR (the right to liberty), to protect the person so confined and that the arrangement would therefore be imputable to the state where the state knew of the arrangement or ought to have known.
He also reaffirmed his view, given in a different case3, that where the child was accommodated by way of an interim or full care order (meaning that the Local Authority acquires parental responsibility), the Local Authority does not have the power to consent to the confinement of the child in circumstances that would otherwise amount to an unlawful deprivation of that child’s liberty.
The Local Authority attempted to resist these findings, citing resource implications. On this occasion, and where matters concern the fundamental guarantees of liberty under Article 5 of the ECHR, the judge found that it would not be possible for the Local Authority to rely upon a lack of resources as a means of abrogating its duties under the Human Rights legislation.
Implications for providers
This quite simply means that where you are responsible for providing care to a young person aged 16 or 17 who lacks capacity, is likely to be deprived of their liberty, and where you are reliant on parental consent, then it will now be the case that in order to maintain the child in such circumstances for the purpose of necessary treatment, one of the statutory mechanisms for authorisation such as DoLS, the Mental Health Act or authorisation from the Court directly will be required.
Steps should be taken urgently to review the circumstances of care, considering in particular with the commissioner and those close to the person concerned whether there are any less restrictive alternatives. Where there are not, and where neither the DoLS nor MHA are likely to apply, we would suggest that the commissioner should be asked to make arrangements for a court application and/or make funds available to indemnify the provider to initiate proceedings itself.
1 Re D aka Trust A v X (by the child’s guardian), a Local Authority, Y, Z  EWHC 922 (FAM)
2 Birmingham City Council v D (by his Litigation Friend, the Official Solicitor), W  EWCOP 8
3 A Local Authority and D and Others  EWHC 3125 (Fam), also known as AB (A Child: Deprivation of Liberty)
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.