Parental consent for their child's deprivation of 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.

In 2015, the High Court was asked to consider the role of parents in depriving their children of liberty. Keehan J held that the parents of a 15 year old boy, ‘D’, with learning difficulties could provide lawful consent for his informal admission to a closed psychiatric unit. D had been diagnosed with attention deficit hyperactivity disorder when he was four, Asperger’s syndrome at seven and Tourette’s syndrome at eight, together with a mild learning difficulty.

Despite many difficulties managing his behaviour, D’s parents looked after him at home until he was 14, when informal admission to a hospital for assessment and treatment became necessary. The hospital provided mental health services for children and adolescents; D was accommodated in a building with an integral school. The external door was locked and D was checked by staff every 30 minutes. The court was told that it was not necessary to detain D in order to treat him, thus the MHA 1983 provisions were inapplicable. D’s parents provided consent for these arrangements.

Previous courts, both European and domestic, have held that a parent may impose (or authorise the imposition of) restrictions on their child’s liberty. But such restrictions must not equate to a deprivation of liberty of the child. Keehan J declared that D’s parents’ consent nullified any assertion that he was being deprived of his liberty (in the legal sense that his human rights were being abused). He also declared that it fell ‘within the zone of parental responsibility for his parents to agree what would otherwise be a deprivation of liberty; it was a proper exercise of parents' responsibility to keep an autistic 15-year-old boy who had erratic, challenging and potentially harmful behaviours under constant supervision and control’.

Falling outside the MCA 2005 due to age, outside the MHA 1983 due to informality, and outside the Children Act 1989 since not premised on accommodation with the purpose of restraint: D benefitted from no formal safeguards to ensure that review of his detention is guaranteed, save for the goodwill of his parents and his doctors.

For this reason, Keehan J made it very clear that once D reached 16, he would come under the jurisdiction of the Court of Protection, and the question of whether his detention could be legitimised solely on the basis of his parents’ consent would require further consideration.

It is accepted that D’s detention was legitimised by the consent of his parents, acting in good faith, in much the same way as parents’ consent makes lawful the major surgery and clinical interventions that doubtless have enduring effects on the child’s welfare. On the other hand, depriving a child of their liberty for an unspecified and unmonitored period has connotations of abuse of their human rights beyond those normally associated with physical treatments, and thus perhaps merits wider debate.

The case was duly reconsidered when D became 16. He lacked capacity to consent to deprivation of his liberty, and Keehan J again heard the case, concluding that D’s parents could not consent for the deprivation of a 16 year old, largely because Parliament had on many occasions distinguished the legal status of people who had reached 16 from that of younger children. His decision was appealed, eventually heard in the Supreme Court.

The majority judgement was handed down by Lady Hale ‘...that it was not within the scope of parental responsibility for D’s parents to consent to 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 (The Right to Liberty). Without such safeguards, there is no way of ensuring that that those with parental responsibility exercise it in the best interests of the child...’

With the advent of the Liberty Protection Safeguards, anticipated in October 2020, the role of parental consent will be overtaken by the new statutory arrangements for deprivation of liberty in 16 and 17 year olds. What remains to be seen is whether the Supreme Court’s disinclination to entrust decisions involving liberty may be tested in younger children; and whether this ‘erosion’ of the scope or zone of parental responsibility may extend to decisions relating to medical treatment.

Robert Wheeler
Department of clinical law
February 2020