Deprivation of Liberty round up

Court of Appeal decision in the Matter of D ; DoLs applications on the increase and the Governments response to Law Commission report on Mental…

  1. Parental consent and deprivation of liberty of 16 and 17 year olds – the Court of Appeal decision in In the Matter of D [2017] EWCA Civ 1695
  2. Latest DoLS applications up 11%
  3. Government interim response to Law Commission report on mental capacity and deprivation of liberty

Parental consent and deprivation of liberty of 16 and 17 year olds – the Court of Appeal decision in In the Matter of D [2017] EWCA Civ 1695

Overview

In a decision which will be welcomed by local authorities, the Court of Appeal has allowed an appeal by Birmingham City Council against a decision that a disabled 16 year old, known as D, without capacity to make decisions about his residence and care, was deprived of his liberty in a residential placement when his parents had agreed to that placement.

In detail

The key aspect of the judgment was the issue of whether a parent can consent to arrangements for a 16 year old which would otherwise be a deprivation of liberty, per the criteria set down in the Cheshire West case (Cheshire West and Chester Council v P [2014] UKSC 19). The Court of Protection had previously found that parental consent was not sufficient once a child turned 16 but the Court of Appeal disagreed, finding that a child’s ability to make decisions was not just about their age but involved issues around maturity and understanding. It therefore had to be dealt with on a child-specific basis.

Once a child turned 16, the issue of whether parents could consent to what would otherwise be a deprivation of liberty depended on whether the child was ‘Gillick competent’, which is the well-established concept governing children and young people’s ability to make their own decisions. Gillick competence or capacity requires the child to have sufficient understanding and intelligence to understand fully the decision which is to be taken, with the matter of them attaining the age of 16 being irrelevant to this consideration. The result of the appeal here therefore was that D’s parents were able to consent to what would otherwise have been a deprivation of liberty since D was not Gillick competent.

Local authorities will be relieved to know that, in cases concerning 16 and 17 year olds lacking capacity, parental consent to what would otherwise be a deprivation of liberty is sufficient. 

Latest DoLS applications up 11%

The number of Deprivation of Liberty Safeguards (DoLS) applications submitted in 2016/17 increased to 217,000, compared with 196,000 the previous year, figures just released by NHS Digital show.

Mental Capacity Act (2005) Deprivation of Liberty Safeguards (England) 2016/17 shows the number of applications completed was 152,000 - an increase of 45 per cent on 2015/16 when 105,000 were completed, indicating that four new applications were being made for every three being completed. The Supreme Court decision in Cheshire West lowered the threshold for what constituted 'deprivation of liberty', a significant factor in the higher number of DoLS applications over the last three years.

Government interim response to Law Commission report on mental capacity and deprivation of liberty

On 30 October 2017, Parliamentary Under-Secretary of State for Health, Jackie Doyle-Price, in a written statement to the House of Commons, announced the publication of the government's interim response to the Law Commission report on mental capacity and the deprivation of liberty.

In the interim response, the government recognises that the current system is "increasingly unsustainable" and may divert resources from frontline care if it continues in its current form. It also confirms that it is committed to reform of mental health legislation and ensuring that "parity of esteem is at the heart of treatment". The government states that it plans to engage with stakeholders to look at how change can be implemented, particularly by speaking to carers and families of those who have been deprived of their liberty. Finally, it notes the wider recommendations made by the report in relation to mental capacity, for example, proposed changes to the best interest test. 

The interim response also confirmed that the government would make a final response to the report in Spring 2018 dealing with its specific recommendations in more detail. 

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