Deprivation of liberty in adults and children
What authority do we have compulsorily to detain children, young people and adults for treatment?
Other than as a sanction for criminal acts, competent healthy adults in England cannot be deprived of their liberty. But children and young people, competent or otherwise, have their liberty curtailed as a matter of course by their parents. The parent would regard this restriction of their child’s freedom as common sense; whilst the law would view the parental restrictions as the exercise of their duty to ensure their offspring’s welfare. On what legal basis can doctors justify depriving patients of their liberty to enable treatment? And to what extent is parents’ curtailment of their offspring’s liberty to enable medical treatment lawful?
The position for adults
Adult patients, 18 years and over, are frequently deprived of their liberty. Adults, whether competent or incapacitated, may be compulsorily detained for assessment and treatment of mental illness under the powers conferred by the Mental Health Act 1983 (MHA 1983). This statute guarantees (amongst other things) that the admission is necessary, and that appropriate treatment is available. The statutory framework surrounding the MHA 1983 ensures that the reasons for a person’s compulsory detention, and its continuance, are regularly and frequently reviewed, providing an essential safeguard for civil liberty. Neither adult nor child can be forcibly detained for the treatment of a non-mental health disorder, such as diabetes, under this Act. This restriction on lawful detention may be modified when a specific physical manifestation of the mental illness requires treatment; for instance, dealing with wounds inflicted as a result of the mental disorder. This principle has been cautiously extended by the courts. A 24 year old psychopathic woman with a compulsion to harm herself stopped eating for this purpose1. The court found her compulsory tube feeding to be a lawful ancillary medical treatment of her mental illness under section 63 of the MHA 1983.
Adults lacking capacity, but whose illness requiring treatment does not fall under the remit of mental health legislation, are dealt with in their best interests under the auspices of the Mental Capacity Act 2005 (MCA 2005). If their liberty must be curtailed to achieve this treatment, the deprivation is made lawful either through the deprivation of liberty safeguards (DOLS)2, or by the direct intervention of a court3, using its inherent jurisdiction (a power to act independently if not otherwise constrained by statute).
The position for children (15 years and below) and young people (16 to 17 years): Statute and courts
In the non-clinical arena, the Children Act 1989 (CA 1989) makes the secure accommodation of people under 18 lawful4. Whilst underpinned by the need to prevent significant harm, this law explicitly enables the State to restrict minors’ liberty, and makes no reference to depriving them of liberty in order to facilitate medical treatment.
For children or young people who have or lack capacity, the detention arrangements under the MHA 1983 are similar to those in adults. They must have a mental disorder that falls under the Act’s definition, and the assessment or treatment that they require must be for this disorder. However, compulsory admission under the MHA 1983 of a minor who is a ward of court requires leave from the court5. Section 63 of the MHA 1983 operates to allow children and young people treatments for physical health problems only to the extent that such treatment is part of or ancillary to the treatment for mental disorder. This is mirrored by judges using the inherent jurisdiction in the absence of statutory power. In a case of a 17 year old in the emergency department after a paracetamol overdose, who was not detained under the MHA 1983, the court found it lawful to restrain her for 21 hours, sufficient only to ensure that an antidote could be administered6.
The MHA 1983 departs from a parent’s residual right to provide consent for the treatment of a minor despite their offspring’s refusal. When considering informal (consensual) admission, the statute prohibits the use of parental consent to override the refusal of a competent young person to agree to these voluntary arrangements7. In the terminology of mental health legislation, an ‘informal’ patient denotes someone who is being treated for a mental disorder and who is not detained (sectioned) under the MHA 1983. The admissions of informal patients are thus not subjected to the regular and frequent scrutiny enjoyed by those patients sectioned under the MHA 1983, performed to ensure that they are not unlawfully detained indefinitely.
The Mental Capacity Act 2005 applies only to patients of 16 years and over who lack capacity. In an emergency, if it is necessary to deprive an incapacitated young person of their liberty so as to sustain life or prevent a serious deterioration (whilst a decision is being sought from a court), then do so. The MCA 2005 makes this intervention lawful8. Incapacitated young people may lawfully be deprived of their liberty for treatment outside of the MHA 1983 under the terms of the MCA 20059 following a relevant decision by a court. However, the DOLS arrangements beloved of clinicians who treat adults cannot be applied to children and young people, since the MCA 2005 10 specifically restricts the DOLS to adults. Thus it must be clearly understood; young people may have their deprivation of liberty declared legal by a court under the MCA 2005, but not by the DOL safeguards.
Competent young people cannot be deprived of their liberty under the MCA 2005, since it only applies to those lacking capacity. As noted above, those competent with mental illness may be dealt with under MHA 1983. Nevertheless, the inherent jurisdiction of the High Court may be used to achieve the detention. English courts have consistently overridden the refusal of consent by 16 and 17 year olds when considering compulsory feeding or blood transfusion. In the recent case of a 16 year boy11, the court did not challenge his competence, but nevertheless his refusal of transfusion was overridden, and was declared compulsory in the last resort.
The position for children: Parental consent for deprivation
A recent High Court case leads us once more to consider the role of parents in depriving their children of liberty. Keenan J has held in the case12 of a 15 year old boy ‘D’ with learning difficulties that his parents could provide lawful consent for his informal admission to a closed psychiatric unit. The court was told that it was not necessary to detain D in order to treat him, thus the MHA 1983 provisions were inapplicable.
Previous courts, European13 and domestic14, have held that a parent may impose, or authorise the imposition of, restrictions on their child’s liberty. But such restrictions must not equate to a deprivation of liberty of the child. Keenan J’s judgement indicates that D’s parents’ consent nullified any assertion that he was being deprived of his liberty (in the legal sense that his human rights were being abused). Falling outside the MCA 2005 due to age; outside the MHA 1983 due to informality; outside the CA 1989 since not premised on accommodation with the purpose of restraint; D benefits from no formal safeguards to ensure that review of his detention is guaranteed, save for the goodwill of his parents and his doctors.
Although an appeal is not yet lodged, it seems likely that the case will receive further judicial scrutiny. Those interested in children’s rights may wonder whether it is wise to allow the State to detain a child without the safeguards that are enjoyed by the incapacitated adult, or by patients of any age who are compulsorily detained under the MHA 1983. It was following a similar adult case15 that the DOLS were introduced to ensure that proposed deprivations of liberty in incapacitated adults were authorised, in those cases where hospital admission fell outside the formality of the mental health legislation. These rules followed judgements in our domestic courts and then the European Court of Human Rights, enabling minute scrutiny of the legal basis for the detention of incapacitated people of 16 years and over.
It is accepted that D’s detention was legitimised by the consent of his parents, acting in good faith, in much the same way as parents’ consent makes lawful the major surgery and clinical interventions that doubtless have enduring effects on the child’s welfare. On the other hand, depriving a child of his liberty for an unspecified and unmonitored period has connotations of abuse of his human rights beyond those normally associated with physical treatments, and thus perhaps merits wider debate.
Children and young people may be deprived of their liberty if the deprivation is in their interests, but the circumstances that make these acts lawful vary according to the clinical circumstances that prevail at the time. Accordingly, the legal basis for our clinical actions needs clearly to be understood, and is broadly covered by the three statutes discussed, together with the operation of the inherent jurisdiction. It will be interesting to see whether parental consent will remain another lawful basis for depriving children of their liberty for the purposes of treatment in English law.
- B v Croydon HA Fam 133 CA
- Mental Capacity Act 2005 Schedule A1
- Mental Capacity Act 2005 s4A(3)
- Children Act 1989 s25
- Mental Health Act 1983 s33
- An NHSFT v P EWHC 1650 (Fam)
- Mental Health Act 1983 s131(4) inserted by Mental Health Act 2007 s 43
- Mental Capacity Act 2005 s4B
- Mental Capacity Act 2005 s4A(3)
- Mental Capacity Act 2005, s4A(5), to be read alongside Schedule A1 s13
- Re P (Medical treatment: Best interests)  EWHC 2327 (Fam)
- Trust A v X & A Local Authority &Ors  EWHC 922 (Fam)
- Neilson v Denmark  11 EHRR 175
- Re K  2WLR 1141
- R v Bournewood Community and Mental Health NHST, ex p L  1 AC 458
Department of clinical law