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Deprivation of liberties and the under 18s

Young man with Down's Syndrome, smiling, touching foreheads with father

When does care become a deprivation for a young person under 18 years of age? When is care ‘necessary’ and how do we define what counts as ‘necessary’? Are a young person’s right so different from that of an adult? These are all questions that some of us wrestle with on an almost daily basis – and yet at the same time, it is evident that in some cases, these questions are not given the attention that they deserve.

After all, there is no age limitation of the European Convention on Human Rights (ECHR) or indeed the UK’s Human Rights Act (1998). Therefore, Article 5 a ‘Right to Liberty and Security’ still applies to under 18s, though it must also be viewed in mind of the Children’s Act (1989) and other relevant legislations. 

As a result of developing case law, the new Mental Capacity Code of Practice with Liberty Protection Safeguards will expand to encompass those aged 16 and above in a wider range of settings including educational placements and community settings such as shared lives.  

In this blog, we will explore what is presently in place for those aged under 18 in the Mental Capacity Act, and what will come into force once the new Code of Practice is introduced.

Lawful deprivation of liberty

As it stands, a young person may be lawfully detained under current legislation if necessary and appropriate:

Legal Trainer Belinda Schwehr provides a detailed guide to this topic, which I highly recommend reading. There are many complexities that need great care and consideration for each individual situation, and I would always encourage appropriate consultation with the Social Work team or other appropriate bodies to ensure the correct channels are used.

In the current situation, parental responsibilities hold if a young person under 16 does not fall under any formal care orders. Thus, parent(s) hold authority to authorise a deprivation of liberty in terms of hospital care or day centre. However, it should be noted that this is ‘regardless of the child’s personal mental capacity’ and does not seem to take into account the law in similar areas of capacity for medical treatment such as that which falls under Gillick Competency or Fraser Guidelines.

Updates from the Court of Protection

Building on existing legislation around the lawful deprivation of liberty, in the case of D (2019) the Supreme Court concluded that a parent cannot consent to a deprivation of liberties in the role of parental responsibility. Hence, a Court of Protection order for a deprivation of liberty (or inherent jurisdiction) would be required if a young person 16-18 years of age is both not under a care order and lacks the mental capacity to consent to their care and treatment. This has been further observed in the case heard before Mr Justice Keehan in 2016 amongst other examples.

Again, we should emphasise here that this is a very complex area that needs due diligence and care in handling, as other legislation may be more appropriate to the case or have an impact. Once the new Mental Capacity Code of Practice comes into play, those 16-18 will be included under the umbrella for the new Liberty Protection Safeguards if they are so determined to lack capacity for care and treatment, meeting relevant criteria. 

Recommended reading: Cases and resources

Bolton Council v KL (2022) addresses the deprivation of liberties of a young person aged 16-17, providing direction to the Court of Protection in handling these cases. In particular regard for ‘streamlining application process’, yet recognising this is not fit this vulnerable age period, being unsustainable, providing guidance in the matter and future developments.  Especially in consideration of transition of services and possibly placement, causing increased risk to ‘decision making falling between cracks’. In addition to which Senior Judge Hilder further noted issues of representation amongst other factors, in consideration of a litigation friend and/or 1.2 independent advocate representative.

NHS Trust vs Manchester Council vs ST EQHC 719 recognises the ‘shocking’ circumstances that gave rise to this case being brought before Honourable Mr Justice MacDonald. The case concerned ST, a 14 year old child, who has a diagnosis of ‘Autistic Spectrum Disorder, moderate learning disabilities and challenging behaviours’. The purpose was an application for inherent jurisdiction to authorise a Deprivation of Liberties through the NHS trust rather than the social worker from the local authority as is the normal precedence. There is a noted lack of ‘concrete information’ or action highlighted by Manchester City Council amongst other concerning matters of disproportionate deprivations and care towards ST. The case is summarised on one article by Helen Pidd who describes how ST was found to have been both unlawfully detained and restrained while in the hospitals care, which Judge MacDonald described as ‘brutal and abusive’ and ‘manifestly unsuitable’. In conclusion an immediate appropriate community placement was directed while a suitable educational placement was identified.

Tameside MBC vs Am & Ors EWHC 2472 (2021) – resulted in an update to inherent jurisdiction applications for a deprivation of liberties authorisation in unregulated placements. This case has been discussed by Tania Richards, who reports how a this can be lawful if, and only if, there is no alternative. 

Others include, but are not limited to:

Still work to do…

This vital area of safeguarding and support for the under 18s needs more action to make it accessible to those using the system. This includes easy-read guides and independent advocacy support to aid the individual through these processes.

When the LPS comes into force, some of the burdens upon the Court of Protection will be eased through this streamlining, enabling greater focus upon those cases of the highest need and complexity. The LPS is hoped to ensure closer monitoring and accountability, to help safeguard those most vulnerable, empowering their voice to be heard within these processes.

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