Court of Protection case summary
This case will be of interest because it changes the position in respect to deprivation of liberty for Young Persons (16 – 17 year olds).
In the matter of D (A Child)  EWCA Civ 1695 (Court of Appeal)
Consent (meaning that the Subjective Element of a DoL is not met) can be provided from the following for a young person:
Scope of Parental Responsibility:
Confirmed the previously understood position that:
Changed the previously understood position to confirm that:
Acknowledged but did not specifically uphold or overturn:
Sir James Munby (President of the Court of Protection), Lord Justice Richards and Lord Justice Irwin sitting in the Court of Appeal ("CoA")
Hearing: 8-9 February 2017, Judgement: 31 October 2017 (56 pahe judgement).
This was the Appeal (launched by Birmingham City Council) from Mr Justice Keehan's earlier decisions about D:
CoA proposed the following terminology:
CoA raised the following point as a possibility – it did not decide the point finally either way:
CoA acknowledged Mr Justice Keehan's decision (but did not confirm or overrule either way) that:
CoA confirmed Mr Justice Keehan's decision that:
CoA overturned Mr Justice Keehan's decision that:
A parent with Parental Responsibility can provide consent to a confinement that would otherwise be a DoL (thereby rendering the Subjective Element unmet and meaning it is not a DoL which requires regularisation) for a child or a young person lacking Gillick competence - if it is within the Scope of Parental Responsibility (which is dependent on that child/Young Person, that parent and the particular circumstances).
This is because:
This appeal arises from Mr Justice Keehan's decision in Birmingham City Council v D and W  EWCOP 8 (when D was 16 and in a residential community setting), which in turn followed his earlier decision in Re D (A Child: Deprivation of Liberty) (2015) EWHC 922 (Fam) (when D was 15 and in a hospital setting).
D is 16 years old suffering from ADHD, Asperger's, Tourette's and a mild Learning Disability. He has significant difficulties with social interactions and displays behaviour that challenges (physical and verbal aggression).
In October 2013, aged 14, he was admitted to a CAMHS hospital ("Hospital B") in circumstances which amounted to a confinement. He was assessed as being not Gillick competent.
On 31 March 2015, when D was 15 years old, Mr Justice Keehan directed that:
D turned 16 on 23 April 2015 and Birmingham City Council applied to the Court of Protection. D was discharged from Hospital B and placed in a specialist residential placement. This was commissioned by the Local Authority but D's parents agreed to him being accommodated there under s.20 Children Act 1989 (Local Authority's duty to provide accommodation for a child/YP who needs it – cannot be used where someone with Parental Responsibility objects).
It was agreed that D's placement was a confinement (Objective Element of a deprivation of liberty).
The Local Authority argued that D's placement was not a DoL which required regularisation, for two reasons:
The Official Solicitor on behalf of D disagreed:
In November 2015, Mr Justice Keehan concluded in Birmingham City Council v D and W  EWCOP 8 that:
On 23 November 2015, D transferred to another placement, where his DoL was authorised by Order from Mr Justice Keehan.
The Local Authority appealed the decision, arguing that Mr Justice Keehan was wrong on three grounds (CoA's decision is highlighted in bold):
The Equality and Human Rights Commission was permitted to intervene (take part in) in the appeal.
|Person||Conditions||Yes or No?||Override YP's capacitated refusal|
|YP||if capacitated in accordance MCA 2005/Gillick competent||Yes||N/A|
|Parent||with Parental Responsibility and if YP is not Gillick competent and if it is within the Scope of Parental Responsibility for that YP, in those circumstances and for that parent||Yes||No|
|Local Authority||with Parental Responsibility||No||No|
|Court||Court of Protection (if incapacitated) or Inherent Jurisdiction (with capacity)||Yes||Yes|
This case summary was written by Hannah Taylor, Senior Associate Please contact Hannah for further information.
Bevan Brittan's Clinical Risk Team have prepared a comprehensive Knowledge Pack which offers guidance to commissioners, providers and care co-ordinators on the use of CCTV. The Pack is aimed at care environments with service users who lack capacity to consent to their care regime.
Please contact Hannah Taylor if you would like to receive the Knowledge Pack or wish to discuss the Use of CCTV in Care Packages any further.