D (A Child ; deprivation of liberty), Re

D was born on 23 April 1999 and is 15 years of age. He was diagnosed with Attention Deficit Hyperactivity Disorder at the age of 4, with Asperser’s Syndrome at the age of 7 and with Tourette’s syndrome at the age of 8.

In March 2012 a referral was made to the Child and Adolescent Mental Health services because of his challenging behaviours at home. His treating community psychiatrist made a referral to Hospital B. On 15 October 2013 he was informally admitted for a multidisciplinary assessment and treatment. D remains at Hospital B to date. In the opinion of his treating psychiatrist, Dr K, D is now fit to be discharged from the hospital. The local authority is in the process of identifying a suitable residential placement and it is hoped that D will be placed by the end of this month.

On 11 December 2014, and in light of the decision of the Supreme Court in Surrey County Council v P, Cheshire West and Chester Council v P [2014] UKSC 19 [2014] AC 896 (‘Cheshire West’), the hospital Trust issued an application 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. On 17 December 2014 Holman J made an interim declaration that the deprivation of liberty was lawful. He further gave directions for the hearing of this application.

I am asked to determine the following principal issues:

On 9 March I heard the parties’ submissions on each of these issues.

The Applicant Trust submits that the circumstances in which D lives at Hospital B satisfy the first limb of the Cheshire West test namely:

“the objective component of the confinement in a particular restricted place for a not negligible length of time.”

Further the Trust submits that D’s parents cannot consent to his placement at Hospital B because such a decision, to consent to what would otherwise amount to a deprivation of liberty, falls outside the ‘zone of parental responsibility’.

Accordingly, the Trust submits the appropriate course is to seek the court’s approval of D’s placement under the inherent jurisdiction of the High Court.

The local authority adopts a diametrically opposed stance. It submits that the circumstances of D’s placement do not amount to a deprivation of liberty. Further, it submits that the decision of D’s parents to consent to his placement at Hospital B falls within the proper exercise of parental responsibility. Accordingly what might otherwise constitute a deprivation of liberty does not do so because the second and third limbs of the test in Cheshire West are not satisfied namely:

“ (b) the subjective component of lack of valid consent; and

(c)

the attribution of responsibility to the state”.

The children’s guardian confined her submissions to observations that D was well placed at Hospital B and was progressing.

D’s mother, W, acted in person. She did not seek to make any submissions. D’s father, M, was unable to appear at this hearing but did not seek an adjournment nor to make any submissions on the principal issues.

D was diagnosed with Attention Deficit Hyperactivity Disorder, Asperger’s Syndrome and Tourette’s Syndrome from a very early age. On admission to Hospital B in October 2013 he was further diagnosed as suffering from a mild learning disability.

His parents struggled for many years to care for D in the family home. He had significant difficulties with social interactions. His behaviour was challenging; he was observed to be physically and verbally aggressive. D would urinate and defecate in inappropriate places. He presented with anxiety and paranoid behaviours. All of this had a marked adverse effect on D’s younger brother R. Medication had limited effects.

In March 2012 D was referred to his local Child and Adolescent Mental Health team. His treating psychiatrist made a referral to Hospital B who agreed to admit D informally for multi disciplinary assessment and treatment.

Hospital B provides mental health services to children and young people aged between 12 and 18. D lives within the grounds of the hospital. He attends an on site school on a full time basis.

His parents and brother visit him at the unit on a regular basis. D frequently speaks to his parents on the telephone. He enjoys home visits usually at a weekend for up to six hours but he is supervised at all times.

Dr K describes D’s life at Hospital B as follows:

“D is residing on X one of the two buildings which make up the adolescent service. Each building is a six-bedded unit. Each young person has their own bedroom, and shares bathroom and living areas with the other patients. There is a school room attached to each building, and all the students receive full time education provided from a special school outreach service.”

“D’s unit is staffed 24 hours a day.

It has a locked front door. D does not leave the ward without a staff member or his family accompanying him. He has been offered opportunity to undertake small tasks by himself, such as emptying the bins, but he says he is scared. Unescorted leave would be considered as part of his treatment package to see how he fares.

D has his own bedroom, which he can access whilst he is on the unit at his leisure. He shares a bathroom and residential areas within the building.

D is on general observations. This means that he is checked on every half an hour or so. However, D seeks out contact with staff more regularly within that time and this means that he is under direct observation on a much more regular basis. I am of the view that he is under constant supervision and control.

His school is integral to the building. He goes off site for all relevant school activities such as, to music sessions on site, and to activities which take place in the community, such as shopping and cafes. He leaves the unit on a daily basis, accompanied by staff.

He is independent in his self-care, and requires minimal support for this. He eats a varied diet independently, and is able to vocalise his preferences.

Attempts to engage him in more serious conversation unnerves him, and he will try to deflect the subject, or directly challenge the person, by telling them that he is not happy. I am of the view that this is reflected in the anxiety he has shown around his discharge. My team will need to manage this carefully within the discharge process.

When out in the community, D is supported one-to-one. He has stated that he would be anxious to go out on his own, and prefers to be accompanied by staff. On occasion he has to be reminded about his behaviour when out, as he might stare and pull faces at strangers. He has been encouraged to do some tasks independently, such as emptying the bins outside, but he has stated that he was too anxious to do it by himself and so he is accompanied when doing this.”

In relation to the reviews of D’s progress and the suitability of his continued placement, Dr K reported:

“The Trust undertakes weekly Multidisciplinary Team reviews of D’s care by way of a team review at Hospital B. These involve those involved in D’s care, including myself, nursing staff, speech and language specialists, occupational therapists and representatives from his school (which is on site at Hospital B).

In addition, on a five or six weekly basis, D’s care is reviewed by members of the Trust and local services. This includes A Local Authority, whose representatives are invited to attend. This meeting gives an overview of progress over the last 6 weeks. Historically A Local Authority had not attended as there was no social worker allocated. Those present will discuss D’s presentation in depth and any changes/proposed changes to his care plan and medication. Feedback and input from his family are obtained also and a key component of the meeting is to plan next steps in his care, including discharge planning.”

D is assessed by Dr K as not being ‘Gillick’ competent to consent to his residence and care arrangement or to any deprivation of liberty.

Dr K considers it inappropriate to use the provisions of the Mental Health Act 1983 to place D under section. It is not necessary to detain D in order to treat him.

In August 2014 the clinical team led by Dr K agreed that D was now fit to be discharged from hospital to a residential placement. There has been considerable delay in identifying a suitable residential unit for D. I do not intend to dwell on the reasons for that delay. It is highly likely that D will be subject to a similar regime of supervision and control in that placement as he is at the hospital.

In the case of Cheshire West the Supreme Court considered the issue of a deprivation of liberty in the context of the living arrangements of mentally incapacitated individuals. It was held by the majority that since the term, deprivation of liberty, was to be given the same meaning in domestic law as in Article 5 of the Convention it was to be construed by reference to the relevant jurisprudence of the European Court of Human Rights (‘ECHR’).

Having undertaken a review of decisions of the ECHR, Baroness Hale said:

Baroness Hale considered the decision of the ECHR in the case of Neilsen v Denmark (1988) 11 EHRR 175. There the court found that the hospitalisation of a 12 year old for 5 months was not a deprivation of liberty. It was rather the responsible exercise by his mother of her custodial rights in the interest of the child. Lord Neuberger referred to the decisions in Neilsen as ‘controversial’ [paragraph 72]. Baroness Hale observed that the decision of the court in that case “would appear, therefore….to turn on the proper limits of parental authority in relation to the child” [paragraph 30].

Later in the judgment she said:

Mr McKendrick submits that other obiter comments made in Cheshire West suggest that parents can consent to the deprivation of liberty in respect of their children ‘living at home’ (per Lord Neuberger at paragraph 72) or ‘in the normal family setting’ (per Lord Kerr at paragraph 79).

I was referred to the case of RK v BCC and othrs [2011] EWCA Civ 1305which was concerned with the question of whether the accommodation of a child or young person under s20 CA 1989 could give rise to a deprivation of liberty. The Court of Appeal agreed with the conclusion of Mostyn J that on the facts of the case the circumstances of the young person’s accommodation amounted to a restriction of her liberty and not a deprivation of liberty.

In the course of giving the judgment of the court, Thorpe LJ said at paragraphs 14 and 15:

Mr Cowen, who appeared for the local authority in RK, submitted that, on further reflection, the concession was wrongly made and the consensus was erroneously achieved. I am told that no authorities were cited to the Court of Appeal in support of the concession. The observations of Thorpe LJ set out above and in particular the passage ‘ a parent may not lawfully detain or authorise the deprivation of liberty of a child’ were made obiter. With great respect to Thorpe LJ, I doubt the same correctly states the legal position. This bold statement is arguably inconsistent with the views expressed by two of the Supreme Court Justices in Cheshire West: see paragraph 26 above.

The Court of Appeal referred to the ‘deprivation of liberty of a child’ without any qualifications to the child’s age or maturity. It is obvious that young children will be under the ‘complete supervision and control’ of the parents and ‘will not be free to leave’ the family home without supervision. Such a state of affairs would certainly not amount to a deprivation of liberty. In the premises I do not consider myself to be bound by the observations made in RK.

In Re K (A child) (Secure Accommodation Order: Right to Liberty) [2001] Fam 377 the Court of Appeal considered whether s 25 CA 1989 was incompatible with Art 5 of the Convention. The court concluded it was not. In the course of giving judgment Butler-Sloss P said:

In giving a concurring judgment Judge LJ (as he then was) said:

The observations of both Butler-Sloss P and Judge LJ were made and must be read in the context of the provisions of a secure accommodation order which is recognised to be a draconian order. It must be granted sparingly and only where, of course, the statutory criteria of s25 (1) (a) and (b) 1989 are satisfied namely:

In my judgment the decision in Re K is limited to the interpretation of s 25 CA 1989 and the compatibility of that statutory provision with article 5 of the Convention. The references to the ambit of parental responsibility were obiter. In any event I do not derive any assistance from the decision and observations made in Re K in deciding whether D’s parents on the facts of this case were entitled to consent to his detention in Hospital B.

The point has been made in the course of submissions that D will be 16 very shortly on 23 April when a different approach and statutory regime applies. Thus once D is 16 years of age any deprivation of D’s liberty would have to be sanctioned by the Court of Protection pursuant to the provisions of the Mental Capacity Act 2005.

I have been referred to the provisions of s131 MHA 1983 which states:

Further s8 FLRA 1969 provides that:

These provisions are just two examples of where Parliament has chosen, in a number of areas, to draw a distinction between a child and a young person who has yet to achieve his/her majority but who has attained the age of 16 or 17. Thus the legal authority of a parent to consent to the detention or treatment of a 16 or 17 year old is severely curtailed, if not removed.

The threshold is attaining the age of 16. The fact that a young person is 16 minus 23 days is irrelevant as far as the effect of those provisions is concerned.

In the ultimate analysis counsel for the Trust and counsel for the local authority accepted that the circumstances in which D was accommodated amounted to a deprivation of liberty subject to the issue of consent to the placement.

Mr Cowen, on behalf of the local authority sought to contend that:

I do not accept any of those propositions. 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.

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.

I accept the essential ratio of Cheshire West does not apply to the circumstances of this case. Nevertheless, in my view, the acid test definitions of a deprivation of liberty apply as much to D as they did to the subjects of the appeals in Cheshire West.

In the premises I do not accept the local authority’s third submission that I should reject the approach of the Supreme Court in Cheshire West and apply the Court of Appeal’s test of ‘relative normality’. I do not understand the logic of the submission that I should hold that the decision of the Supreme Court does not apply to the facts of this case but then resurrect and apply the test propounded by the Court of Appeal which was expressly rejected by the majority of the Supreme Court.

The essential issue in this case is whether D’s parents can, 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 (ie the 2^nd limb in Cheshire West is not satisfied).

Mr McKendrick draws a distinction between the circumstances of the child in Neilsen and those of D. I agree with those submissions. In any event, and for the avoidance of any doubt, I have not had regard to the ‘controversial’ majority judgment in Neilsen in coming to my decision in this case.

Mr McKendrick reminds me that Dr K does not consider D to be Gillick competent to consent to his residence, treatment or care. He referred me to the provision of the new MHA Code of Practice which comes into effect on 1 April 2015. Paragraphs 19.47 – 19.48 provide:

The Trust submitted that D’s parents cannot consent to a deprivation of his liberty in Hospital B for 11 reasons:

The Trust concludes its submissions as follows:

When D attains the age of 16 his future accommodation and any deprivation of liberty involved will be matters for the Court of Protection to consider. The fact that a different regime and different considerations will apply once D has become 16 should not, in my judgment, affect the approach I should take during any period when he is not 16.

On the facts of this case I am wholly satisfied that D lives in conditions which amount 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.

D was admitted to Hospital B on the recommendation of his treating clinicians because of his autism and his other conditions. The fact that his parents were (understandably) struggling to cope with caring for him at home was but one factor which culminated in the clinical decision to informally admit him to the hospital.

I wish to pay tribute to D’s parents who have throughout acted in what they considered to be in the best interests of their elder son. They have, at all times, paid the closest interest in his care at the hospital and they have worked in co-operation with the clinicians, staff and carers at the unit. They have attended, or at least one of them has attended, the periodic reviews held at the hospital.

When considering the exercise of parental responsibility in this case and whether a decision falls within the zone of parental responsibility, it is 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.

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.

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.

The parents of this young man are making decisions, of which he is incapable, in the welfare best interests of their son. It is necessary for them to do so to protect him and to provide him with the help and support he needs.

I acknowledge that D is not now cared for at home nor ‘in a home setting’. His regime of care and treatment was advised by his treating clinicians and supported by his parents. They wanted to secure the best treatment support and help for their son. They have done so. It has proved extremely beneficial for D who is now ready to move to a new residential home out of a hospital setting. What other loving and caring parent would have done otherwise?

Those arrangements are and were made on the advice of the treating clinicians. All professionals involved in his life and in reviewing his care and treatment are agreed that these arrangements are overwhelmingly in D’s best interests. On the facts of this case, why on public policy or human rights grounds should these parents be denied the ability to secure the best medical treatment and care for their son? Why should the state interfere in these parents’ role to make informed decisions about their son’s care and living arrangements?

I can see no reasons or justifications for denying the parents that role or permitting the state to interfere in D’s life or that of his family.

I accept the position might well be very different if the parents were acting contrary to medical advice or having consented to his placement at Hospital B, they simply abandoned him or took no interest or involvement in his life thereafter.

The position could not be more different here. D’s parents have regular phone calls with him. They regularly visit him at the unit. Every weekend D has supported visits to the family home. He greatly enjoys spending time at home with his parents and his younger brother.

In my judgment, on the facts of this case, 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.

I am satisfied that the circumstances in which D is accommodated would amount to a deprivation of liberty but for his parents’ consent to his placement there.

I am satisfied that, on the particular facts of this case, the consent of D’s parents to his placement at Hospital B, with all of the restrictions placed upon his life there, falls within the ‘zone of parental responsibility’. In the exercise of their parental responsibility for D, I am satisfied they have and are able to consent to his placement.

In the case of a young person under the age of 16, the court may, in the exercise of the inherent jurisdiction, authorise a deprivation of liberty.

I do not propose to give wider guidance in respect of the approach 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.

For the same reason I do not consider it would be appropriate for me to comment on D’s care in the new proposed residential unit. The local authority has not yet identified a suitable unit and I do not know what D’s day to day life will consist of or of the restrictions that will be placed upon him. Accordingly I am unable to determine whether the regime at that unit could or would amount to a deprivation of his liberty.

I consider it well beyond the remit of this judgment to comment on the approach of the local authority, still less that of the Court of Protection, once D has attained the age of 16; it would not be appropriate for me to do so.