In D (A Child) (Deprivation of Liberty)  EWHC 922 (Fam), Keehan J has considered the question of the application of the ‘acid test’ to those under 16.
D, the child at the centre of the proceedings, was 15, with a number of difficulties including ADHD, Asperger’s and Tourette’s. He was informally admitted to hospital (‘hospital B’) in 2013 for a multi-disciplinary assessment and treatment. The psychiatric unit had six beds, with a school room attached to the building. It was locked; he could not leave with staff or family member; he was under 30-minute observation but sought out more regular contact with staff. He left the unit daily, accompanied by staff, going off site for activities including in the community on a one-to-one basis.
D was assessed as not being Gillick competent to consent to his residence and care arrangements. In light of the decision in Cheshire West, the hospital Trust issued an application in December 2014 under the inherent jurisdiction of the High Court seeking a declaration that the deprivation of D’s liberty by the Trust was lawful and in his best interests.
The matter came on for final determination before Keehan J on 9 and 10 March 2015. His Lordship was asked to determine the following principal issues:
- Did the placement of D at Hospital B satisfy the first limb of the test propounded by Baroness Hale in Cheshire West?
- If so, did the parents’ consent to his placement come within the exercise of parental responsibility in respect of a 15 year old young person? In other words, were the parents able to consent to what would otherwise amount to a deprivation of liberty?; and
- If not, should the court exercise its powers under the inherent jurisdiction to consider declaring that the deprivation of liberty of D at Hospital B was lawful and in his best interests?
The applicant hospital Trust submitted that D was objectively confined, and that his parents could not consent to this placement because consenting to what would otherwise be a deprivation of liberty fell outside the zone of parental responsibility. The local authority submitted that D was not deprived of his liberty, both (initially) because his circumstances did not amount to a deprivation of his liberty and because the decision of D’s parents to consent to his placement at Hospital B fell within the proper exercise of parental responsibility. None of the other parties (or the children’s guardian) advanced substantive arguments on this issue. Keehan J held the following:
1. The observations of Thorpe LJ in RK v BCC and othrs  EWCA Civ 1305 to the effect that a parent may not lawfully detain or authorise the deprivation of liberty of a child (a) were obiter; (b) did not correctly state the legal position; (c) were arguably inconsistent with the views of Lords Neuberger and Kerr in Cheshire West; and (d) were not binding upon him;
2. The essential ratio of Cheshire West did not apply to the circumstances of D’s case. However:
“42. The protection of Article 5 of the Convention and the fundamental right to liberty applies to the whole of the human race; young or old and to those with disabilities just as much to those without. It may be those rights have sometimes to be limited or restricted because of the young age or disabilities of the individual but ‘the starting point should be the same as that for everyone else’, per Baroness Hale: Cheshire West at paragraph 45.
43. The majority in Cheshire West decided that what it means to be deprived of liberty is the same for everyone, whether or not they have a physical or mental disability: per Baroness Hale in Cheshire West at paragraph 46.”
Therefore, the acid test definitions of a deprivation of liberty applied as much to D as they did to the subjects of the appeals in Cheshire West. In reaching this conclusion, Keehan J expressly rejected the submission that he could and should adopt the ‘relative normality’ approach adopted by the Court of Appeal in P and Q;
3. The essential issue in this case was whether D’s parents could, in the proper exercise of parental responsibility, consent to his accommodation in Hospital B and thus render what would otherwise be a deprivation of liberty not a deprivation of liberty (i.e. mean that the second in Cheshire West is not satisfied);
4. He was ‘wholly satisfied’ that D lived in conditions which amounted to a deprivation of his liberty:
“He is under constant supervision and control. The fact that D enjoys residing in the unit in Hospital B, that he is comfortable there and readily seeks out and engages with members of staff are irrelevant factors when considering whether there is a deprivation of liberty. So too are the facts that the arrangements have been made in his welfare best interests and have been, and are, to his benefit. A gilded cage is still a cage.” (paragraph 52)
5. When considering the exercise of parental responsibility in this case and whether a decision falls within the zone of parental responsibility, it was:
“55. […] inevitable and necessary that I take into account D’s autism and his other diagnosed conditions. I do so because they are important and fundamental factors to take into account when considering his maturity and his ability to make decisions about his day to day life.
56. An appropriate exercise of parental responsibility in respect of a 5 year old child will differ very considerably from what is or is not an appropriate exercise of parental responsibility in respect of a 15 year old young person.
57. The decisions which might be said to come within the zone of parental responsibility for a 15 year old who did not suffer from the conditions with which D has been diagnosed will be of a wholly different order from those decisions which have to be taken by parents whose 15 year old son suffers with D’s disabilities. Thus a decision to keep such a 15 year old boy under constant supervision and control would undoubtedly be considered an inappropriate exercise of parental responsibility and would probably amount to ill treatment. The decision to keep an autistic 15 year old boy who has erratic, challenging and potentially harmful behaviours under constant supervision and control is a quite different matter; to do otherwise would be neglectful. In such a case I consider the decision to keep this young person under constant supervision and control is the proper exercise of parental responsibility.”
6. Given that it was incontrovertible that D’s parents were acting on medical advice and were making decisions of which he was incapable, in his welfare best interests, to protect him and provide him with the help and support he needed, it would be “wholly disproportionate, and fly in the face of common sense, to rule that the decision of the parents to place D at Hospital B was not well within the zone of parental responsibility.”
7. In the exercise of their parental responsibility for D, D’s parents had and were able to consent to his placement, thereby meaning his placement did not amount to a deprivation of liberty.
Keehan J expressly declined to give wider guidance either as to the approach to be taken by hospital trusts or local authorities in the cases of young people under the age of 16 who are or may be subject to a deprivation of liberty. “These cases are invariably fact specific and require a close examination of the ‘concrete’ situation on the ground” (paragraph 68); further, he declined to comment upon the approach to be taken by the local authority “still less the Court of Protection” once D had attained the age of 16.
Whilst some may well welcome this decision as a sensible curtailment of the scope of the acid test, we must register a significant note of disquiet at the approach taken.
Keehan J – rightly – emphasised the importance of the universality of Article 5 and the right to liberty, regardless of disability, and rejected the invitation of the local authority to apply the ‘relative normality’ test propounded by the Court of Appeal in P and Q. However, he then reached his conclusion on the basis of an approach that compared D’s situation not with that of an ‘ordinary’ child of 15, but with that of a child of 15 with significant disabilities.
This approach appears to contradict the comparator for those under 18 that was identified by Lord Kerr in the Supreme Court at paragraphs 77 to 79, namely “children of their own age and relative maturity who are free from disability” (paragraph 79).
It is arguably predicated on an approach that ends up denying the recognition of D’s right to liberty (albeit by a different route) in precisely the same ways that the Courts of Appeal had done in the cases of MIG, MEG and P. In concrete terms, it resulted in a disabled 15 year old being confined in a psychiatric hospital for fifteen months without any formalised admission procedures indicating who could propose admission, for what reasons, and on the basis of what kind of medical and other assessments and conclusions. There was no requirement to fix the exact purpose of the admission; no limits in terms of time, treatment or care attached to the admission; no independent scrutiny; and D was afforded independent representation to challenge the circumstances. This was justified, in essence, on the basis of the bona fides of his parents and the treating doctors. Readers would be forgiven for wondering whether this does not chime significantly with HL’s circumstances.
Given that Keehan J was absolutely clear that D’s situation amounted – objectively – to confinement and that this confinement was, in part, for purposes of assessment and treatment of his mental disorder, we suggest that this decision is likely to be viewed in due course as being just as – if not more – controversial than the decision in Nielsen. There, a 12 year old boy was hospitalised for five and a half months, at his mother’s request, for therapeutic purposes where the assistance rendered by the authorities was only of a limited and subsidiary nature, in contrast to the present case.
This case also illustrates the potential relevance of Article 8 to the interpretation of Article 5: that is, the lower the threshold for “deprivation of liberty”, the more the State is required to interfere with people’s right to respect for private life, family life and their home, in particular, in order to protect their right to liberty.
A version of this note appears in the April 2015 39 Essex Chambers Mental Capacity Law Newsletter