Deprivation Of Liberty For 16/17 Year Olds - Supreme Court Decides

Can a parent consent on behalf of their 16/17 year old to care/residence arrangements that would otherwise amount to a deprivation of liberty?

This is the question at the heart of the long running saga of D (A Child) which has finally reached its conclusion today with the highest court in the land ruling that the answer is 'no'. This means that where a 16 or 17 year old lacks capacity to consent themselves to arrangements which meet the 'acid test' for deprivation of liberty (i.e. under continuous supervision and control and not free to leave), parental consent will not stop that amounting to a deprivation of liberty and, unless legally authorised, the deprivation will be unlawful.

We look at the Supreme Court's decision and its implications for those involved in the provision of care for 16 and 17 year olds.

What was the case about?

D was born in 1999 and was diagnosed at a young age with ADHD, Asperger's Syndrome, Tourette's Syndrome and a mild learning disability.

His challenging behaviours meant he needed to be cared for in a placement where he was under continuous supervision and control, in that all external doors were locked, he could not go out unaccompanied and had 1:1 staff support throughout the day plus staff in constant attendance at night.

The nature of these care arrangements meant that D was 'under continuous supervision and control and not free to leave' (under the Cheshire West 'acid test' for deprivation of liberty, taking into account age comparators) and was therefore 'deprived of his liberty' unless it could be said that those arrangements had been validly consented to.

The question was whether his parents could give that consent (given that D lacked capacity to consent himself). If so, there would be no deprivation of liberty in law (for Article 5 purposes). If not, there was a deprivation of liberty that would need to be authorised via the courts given that the Deprivation of Liberty Safeguards under the Mental Capacity Act cannot be used for anyone younger than 18.

The court had already decided when D was still 15 that D's parents could consent to his confinement whilst he was under the age of 16. The more thorny question though, was whether they could do so once he reached 16, given that there are various pieces of legislation (not least the MCA, which applies to those aged 16 and over) which treat 16/17 year olds differently from younger children.

The Court of Protection decided (in January 2016) that D's parents...

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