Does a mobile signify liberty?

An update from a regular series written by Mr Robert Wheeler, director, department of clinical law, where he considers various aspects of clinical law that our nursing and medical staff rely on when caring for patients.

Does access to your mobile telephone signify your liberty? A recent judgement considered whether a local authority, seeking to restrict a child’s use of her mobile phone, was infringing her liberty.

The child, P had just turned sixteen at the time of the court hearing. She had ADHD and was ‘working at the level of a 7-year-old child’. Her Children’s Guardian (appointed to put before the court anything which he or she considers to be in the best interest of the child) described P as a ‘…funny, likeable, and kind young person with skills in the creative arts, including making TikTok videos, and a love of animals’. P presented as a person with a sense of humour, not shy in expressing her personality. She had suffered physical abuse from her father and been involved in ‘violent incidents’ when her mother, seeking to keep P safe, had attempted to look at her phone.

At the age of 13, P was frequently missing from home during a one-year period. But when she saw her family, she threatened them with a knife, and repeatedly harmed herself. During her absences, she placed herself at risk of organised criminal gangs, risking sexual exploitation. When she was fourteen, she was placed in local authority children’s homes, but then was admitted to hospital on several occasions after attempts at suicide. In intervening periods, she tried to harm herself in multiple, diverse, ways. Faced with this miserable litany of utter distress, the mental health services concluded that P did not meet the criteria for admission to a Tier 4 CAHMS bed, and the local authority were left to care for her in a children’s home.

The local authority had undertaken an assessment of P’s welfare. This demonstrated the risks (and benefits) of P’s telephone and social media contacts with her friends and associates. Unsupervised at night, P’s use of her phone would encourage her to become aggressive and would allow her to post recordings of staff online, that she had made without their permission. Both P and the staff could be put in danger, if the individuals with whom she shared the recordings posed a risk towards them. There were also concerns that P may be seeking emotional support by befriending individuals online who she did not know. There was evidence that at least one of these individuals was advising P on tactics of ‘restricting holds’, enabling her to escape from safety, thus, to fall into the hands of predators.

For these reasons, an order of the court authorised restrictions on P, to include limiting her access to social media, her telephone, tablet and laptop to the extent that she was excluded from her devices daily between 22.00-08.00, and that supervision and further restrictions would apply in daylight hours.

One question for the court was whether this amounted to a deprivation of liberty. It was very plainly an interference with P’s autonomy, insofar as the restrictions limited her personal freedom of will. The court reflected on the Storck criteria (decided in the European Court of Human Rights) whereby there must be three components present to ‘diagnose’ a deprivation of liberty:

(i) Objective evidence of confinement in a particular restricted place for a non-negligible length of time

(ii) A subjective component of lack of valid consent

(iii) The State being responsible for the confinement.

It was acknowledged, of course, that conditions (i-iii) were met with respect to P’s confinement in a children’s home, but it would be wrong for an authorisation for incarceration ‘...to spill over into authorising steps’ other than those resulting in confinement. So, were the restrictions on her use of the mobile by themselves indicative of deprivation of liberty? The court found that a restriction on the use of a mobile did not echo in terms of bodily confinement. A Supreme Court judgement was recited, noting that the ultimate question relates to loss of physical liberty.

For these reasons, P’s case gives clinicians and parents some certainty that whilst we may be curbing our patient’s (or our children’s) autonomy by removing their mobiles we are not, in so doing, trampling on their human right to liberty.

Robert Wheeler
Department of clinical law