When a young person over the age of 16, or an adult, does not have capacity about where they should live and the care they receive, the Mental Capacity Act 2005 ensures that these decisions are made in their best interests. Sometimes, people might require a high level of support, to the extent that they might be deemed to be under “constant supervision and control”. Where that is the case, they are said to be deprived of their liberty.
It is a legal requirement that whenever somebody is deprived of their liberty, the local authority must ensure that there is lawful authorisation for this. This is to ensure that the deprivation of liberty does not amount to an infringement of Article 5 of the European Convention on Human Rights (the right to liberty).
A recent Supreme Court judgment, In The Matter Of D (A Child), has given further guidance on this authorisation and is now likely to have practical implications for children with special educational needs aged 16 and over who attend residential schools.
The judgment
The case concerned a 16 year old boy, D, with a diagnosis of Asperger’s Syndrome and who (at the time the initial application to court was made) attended a residential school whose external doors remained locked. D was not allowed to leave the school except for planned activities and was therefore under constant supervision by staff. He was, therefore, deprived of his liberty.
One of the issues which arose was whether, because D was under the age of 18 and therefore still technically a child, his parents could consent to his deprivation of liberty on his behalf, under the principles of parental responsibility, or whether the local authority should be applying to the Court of Protection to obtain authorisation.
This was a complex case which started in the High Court, but then progressed to the Court of Appeal and then the Supreme Court.
In its final judgment, the Supreme Court decided that it would not be compliant with human rights law if the parents of a 16 or 17 year old could consent to deprivation of liberty on behalf of their child. The Supreme Court felt that a 16 year old who did not have a disability and had capacity to make decisions for themselves, would ordinarily be asked to consent to issues concerning their care or treatment, and that on the same basis, parents should not be automatically able to make decisions for 16 and 17 year old children who did lack capacity. It is now clear that the only way for deprivation of liberty to be authorised for 16 and 17 year olds is through an application to the Court of Protection.
Practical implications in an education context
Where a child or young person is under constant supervision at school or is prevented from leaving, this may amount to a deprivation of their liberty. Attention would need to be paid to what level of supervision other children (who were not disabled) might receive and this will depend on the age of the child. For example it is very common for younger children to be prevented from going out on their own, regardless of whether or not they have a disability, and so this would not necessarily be a deprivation of liberty where a child was disabled. However the circumstances change the older the child becomes, and that will affect whether they are considered to be deprived of their liberty or not.
Whilst deprivation of liberty can occur in many settings, it will be a common issue in residential settings, including residential schools, where young people will have a high level of supervision and care, and are unlikely to be allowed to leave the premises without being supervised. Deprivation of liberty is unlikely to occur in the home environment unless there is a high level of state funded care at home.
Where deprivation of liberty might arise, the local authority should ensure that the deprivation of liberty is investigated and authorised. This could involve an application to the Court of Protection, and the young person’s views (and parents’ views) would be obtained as part of this process. Schools should start thinking about how to identify such cases to ensure that local authorities are made aware when a deprivation of liberty might arise.
Our education and public law experts have significant experience dealing with this kind of application and can advise on issues relating to deprivation of liberty.
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