The questions were whether:
- the criteria of Cheshire West were satisfied;
- the parental consent to accommodation in hospital was a proper exercise of parental responsibility and thus render what would otherwise be a deprivation of liberty not a deprivation of liberty; and
- if not should the court exercise its powers under the inherent jurisdiction and declare that the deprivation of liberty of D at hospital B was lawful and in his best interests.
The local authority took the opposing view, namely this placement did not amount to a deprivation of liberty and that parental consent fell within the proper exercise of parental responsibility. Furthermore it did not amount to a deprivation of liberty within the meaning of Cheshire West, namely:
- the subject of component of lack of valid consent; and
- the attribution of responsibility to the state.
D (having been diagnosed at an early age with ADHD, Asperger’s syndrome and Tourette’s syndrome) was in 2013 diagnosed as suffering from a mild learning disability. Medication had a limited effect and by March 2012 he been referred by his local CAHMS team to hospital who agreed to admit him informally for a multidisciplinary assessment and treatment. D lived within the grounds of the hospital, attended an on-site school on a full-time basis and was placed with young people aged 12 to 18 years. His parents and brother visited him regularly and he was able to speak to his parents on telephone and usually enjoyed a weekend trip home for up to 6 hours but was at all times supervised. The treating psychiatrist described the circumstances of these living arrangements which included his own bedroom, sharing a bathroom and living areas with other patients with units being staffed 24 hours day. It had a locked front door and it was plain that D does not leave the ward without a staff member or family accompanying him. He was on general observations and the psychiatrist was of the view “...that he is under constant supervision and control “. When in the community D was supported one-to-one and it was stated he would get anxious to go out on its own and preferred to be accompanied by staff. Whilst there are weekly multidisciplinary team reviews of D’s care, in addition, on a five or six weekly basis, D is reviewed again by members of the trust and local services including A local authority. The issue still arose as to whether D was being deprived of his liberty. The Trust considered it was inappropriate to use the provisions of the mental health act to place D under section was assessed as not” Gillick” competent to consent to his residence and care arrangements. Also D was not able to agree to his deprivation of liberty.
The judge reviewed the case law and in particular the custodial rights to the exercise by parents. He reviewed the ECHR decision of Nielsen v Denmark and the observations made by Baroness Hale in Cheshire West of the Nielson case. Mr Justice Keehan decided that it did not consider himself to be bound by the observations made by the Court of Appeal and Thorpe LJ in particular in the case of RK v BCC and others 2011 EW CA Civ 1305 (this is a case which concerned the question of whether the accommodation of a child or young person under Children Act 1989 would give rise to a deprivation of liberty). In that case Mostyn J had found on the facts that the circumstances of the young person’s accommodation amounted to a restriction of her liberty and not a deprivation of liberty.
The court was referred to the provisions of the Mental Health Act 1983 section 131 concerning informal admission of patients and in particular those aged 16 or 17 and section 8 of the Family Law Reform Act 1969 and Keehan J concluded that where Parliament has chosen to draw a distinction between a child and a young person who has yet to achieve his/her majority but has attained the age of 16 or 17, the legal authority of a parent to consent to the detention of treatment of a 16 or 17-year-old is severely curtailed if not removed. The threshold though is that of attaining the age of 16.
In the final analysis, both the trust and the local authority accepted that the placement amounted to a deprivation of liberty subject to the issue of consent to the placement. The court at paragraph 52 found that these living conditions amounted to a deprivation of liberty but taking into account the autism and other diagnosed conditions led to the court’s decision that it was an appropriate exercise of parental responsibility in that particular case for the parents to consent to his placement where D would be under constant supervision and control.
The court considered and questioned why it would be on public policy or human rights grounds that these particular parents should be denied the ability to secure the best medical treatment and care for their child and why the state should interfere with the parental role to make informed decisions about their sons care and living arrangements. The court considered that on the facts of that particular case it will be wholly disproportionate to rule that the decision of the parents to place D at Hospital B was not well within the zone of parental responsibility.
Keehan J declined to give any wider guidance in respect of hospital trusts or local authorities for young people under the age of 16 who may be subject to a deprivation of liberty. The reason for this was that invariably the cases will be fact specific and require a close examination of the “concrete” situation on the ground. He noted that once D had attained the age of 16 different considerations would apply as once D is 16 years of age any deprivation of liberty would have to be sanctioned by the Court of Protection pursuant to the provisions of the Mental Capacity Act 2005.
Read the full text of the judgment on Bailii