This session looked at the legal background to capacity, safeguarding and human rights.

1. Capacity and deprivation of liberty
Mental health matters – Exeter, 6 February 2018

2. The legal background
• Mental Capacity Act 2005
• Gillick v West Norfolk & Wisbech Area Health
Authority [1986]
• European Convention of Human Rights
• Deprivation of Liberty Safeguards
• P v Cheshire West / P and Q v Surrey County
Council [2014]

3. The different courts

4. The different courts
Court of Protection
– Jurisdiction over the MCA (16+)
– Decisions on financial or welfare issues - capacity, best interests, deprivation
of liberty
High Court
– Cases involving children
– MHA / interface issues
– Inherent jurisdiction
Criminal Courts
– Ill-treatment / wilful neglect of a person who lacks capacity or suffers from a
mental disorder
– Gross negligence manslaughter
Coroners court

5. Mental capacity
Basic Principles – s.1 MCA 2005 (16 +)
• A person must be assumed to have capacity unless it is
established that he lacks capacity
• A person is not to be treated as unable to make a decision
unless all practicable steps to help him to do so have been
taken without success
• A person is not to be treated as unable to make a decision
merely because he makes an unwise decision

6. How is capacity assessed?
The two stage test for capacity:
“a person lacks capacity…if at the material time he is
unable to make a decision … in relation to the matter
because of an impairment of, or a disturbance in the
functioning of, the mind or brain”
Note:
time specific: “at the material time”
decision specific: “in relation to the matter”

7. Inability to make a decision
A person is unable to make a decision for himself if they cannot:
– Understand the information relevant to the decision;
– Retain that information;
– Use or weigh that information as part of the decision making process;
or
– Communicate their decision (by whatever means)
Remember – do not assume a person lacks capacity just because their
decision is unwise or not one you would make…

8. Parental responsibility
Children Act 1989 s. 3(1)
“means all the rights, duties, powers, responsibilities and
authority which by law a parent of a child has in relation to
the child and his property”
Note as well s. 3(5):
where you do not have PR but you have care of the child you
“may ….. do what is reasonable in all the circumstances of
the case for the purpose of safeguarding or promoting the
child’s welfare”

9. Gillick competency
Children under 16 can consent if they have
sufficient understanding and intelligence to
fully understand what is involved in a
proposed treatment, including its purpose,
nature, likely effects and risks, chances of
success and the availability of other options

10. Decision making
• Under MCA – 16 and 17 year olds presumed to have capacity to
make decisions
• Person with PR can make decisions on behalf of child
• BUT parental responsibility still applies up to age 18 - their refusal
of treatment can in some cases be overridden by a parent,
someone with PR or a court
An NHS Foundation Trust v P [2014]
Court exercised its ‘inherent jurisdiction’ to override the
competent decision of a 17 year old girl who was refusing life
saving treatment after an overdose

11. Decision making
Decision of an adult with capacity cannot be overruled
If an adult lacks capacity – back to MCA basic principles:
• An act done, or decision made … for or on behalf of a person
who lacks capacity must be done, or made, in his best
interests
• Before the act is done, or the decision is made, regard must
be had to whether the purpose for which it is needed can be
as effectively achieved in a way that is less restrictive of the
person's rights and freedom of action

12. Deprivation of liberty
ECHR Article 5 (1):
“Everyone has the right to liberty and security of person. No one shall be deprived of
his liberty save in the following cases and in accordance with a procedure prescribed
by law …
(e) the lawful detention … of persons of unsound mind …”
ECHR Article 5(4):
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to
take proceedings by which the lawfulness of his detention shall be decided speedily by
a court and his release ordered if the detention is not lawful”
Article 5(5):
“Everyone who has been the victim of arrest or detention in contravention of the
provisions of this Article shall have an enforceable right to compensation”

13. A procedure prescribed by law
• Deprivation of Liberty Safeguards – part of the
Mental Capacity Act – 18+, lacks capacity and
in a registered care homes or hospital
• Court approval / ordered
• Mental Health Act 1983 – strict criteria for
detention and only where suffering from
mental disorder

14. What is a deprivation of liberty?
Cheshire West [2014] - the “acid test”:
“… features which have been consistently regarded as ‘key’ in the
[ECHR] jurisprudence … that the person concerned was
under continuous supervision and control and was not free to
leave”
“… human rights are for everyone,
including the most disabled members of
our community, and … those rights include
the same right to liberty as everyone else”

15. Factors not relevant to whether there is a DoL
• The person’s disability
• “relative normality”
• the quality / appropriateness of the placement “a gilded cage is
still a cage”
• Awareness of the DoL
• Compliance
• Reason or purpose behind the placement
“because of the extreme vulnerability of people like P, MIG
and MEG, I believe that we should err on the side of caution
in deciding what constitutes a deprivation of liberty… They
need a periodic independent check on whether the
arrangements made for them are in their best interests…”

16. A more nuanced acid test for children?
All children are (or should be) subject to some level of
restraint, which adjusts as they grow up and their change of
circumstances
No question therefore that young children are deprived of
liberty in a family setting

17. The zone of parental responsibility
Trust A v X and others [2015]
• D, a 15 year old boy with ADHD, Asperger’s, Tourette’s and
learning disability, presenting with challenging behaviour
• In hospital with a plan to discharge to a residential placement
• Under continuous supervision and control and not free to leave
Cheshire West did apply, even though D under 16
Case and fact specific but Judge was satisfied that “the decision to
keep this young person under constant supervision and control is the
proper exercise of parental responsibility”

18. The saga continued
Birmingham City Council v D [2016]
• D then discharged to the residential placement and turned
16
• Still under continuous supervision and control and D not free to
leave
• The same judge held that things are different when a young person
turns 16 and it was not enough to rely on parental consent where
the acid test is met and would always need a court application
And now…

19. And continued…
In the matter of D (a child) [2017]
• Court of Appeal overturned this decision
• Again, fact and circumstance specific, but no ‘magic’ in the
age of 16
• For under 18s who are ‘confined’ and unable to consent,
parents can give a valid consent if it is an appropriate
exercise of parental responsibility
• Would need court oversight where there is an interim / final
care order if P unable to consent
• Or where P can consent and objects

20. In the matter of D
“there is no longer any 'magic' in the age of 16, given the principle
that 'Gillick capacity' is 'child-specific', the reality is that, in any
particular context, one child may have 'Gillick capacity' at the age of
15, while another may not have acquired 'Gillick capacity' at the age
of 16 and another may not have acquired 'Gillick capacity' even by
the time he or she reaches the age of 18”
“parental responsibility is, in principle, exercisable in relation to a
16- or 17-year old child who, for whatever reason, lacks 'Gillick
capacity’ ”

21. Find out more
www.brownejacobson.com

22. Talk to us
Mark Barnett | 01392 45 8768 | mark.barnett@brownejacobson.com
Please note
The information contained in these notes is based on the position at January
2018. It does, of course, only represent a summary of the subject matter covered
and is not intended to be a substitute for detailed advice. If you would like to
discuss any of the matters covered in further detail, our team would be happy to
do so.
© Browne Jacobson LLP 2018. Browne Jacobson LLP is a limited liability
partnership.