Human Tissue Donation: Capacity, Competence and Protection

In the recent case of NHS Foundation Trust v MC [2020] EWCOP 33 Mr Justice Cohen was tasked with deciding whether it was in MC’s best interests to undergo a procedure to harvest peripheral blood stem cells. It was accepted that treatment had no medical or physical benefit to MC, but the stem cells would be donated to MC’s mother suffering from leukaemia: the donation could significantly improve her mother’s prospects of recovery. 

The court was told by leading counsel (both Katie Gollop QC and Bridget Dolan QC) that this was the first time the question of extraction of bone marrow or stem cell donation by someone lacking capacity has come before the Court of Protection, and the first time the Human Tissue Authority (“HTA”) has been involved in a case of this nature. The case is therefore of some significance. There are, however, pre-MCA authorities which deal with the issue. 

The case concerned MC, an 18 year old young woman who lives with her parents and two younger siblings. The judge found that MC lacked capacity to make the decision in question. The judge said that there was a close and loving relationship within the family. 

Beyond that snippet, the factual detail is scant. The judge did not set out what MC’s difficulties were which led her to lack capacity to make the decision whether or not to donate the stem cells. 

The judge adopted a balancing exercise weighing up the pros and cons of each of the options and came down firmly in conclusion that it was in MC’s best interests to donate the stem cells to her mother. 

The judge reminded himself that “interests” is not confined to self-interests. In a case such as this the interests in altruism, MC assisting her mother, and the emotional, social and psychological benefits of having her mother around are plainly relevant. 

The judge conducted a balancing exercise and whilst acknowledging that the proposed treatment was invasive and not entirely without risks, the benefit to MC of having her mother far outweighed the negatives to the treatment. The judge therefore made the order. 

Children?

MC in this case was 18, and so an adult subject to the MCA. 

Interestingly, a point was raised by the Official Solicitor that there are up approximately 65 cases per year where the Human Tissue Authority (“HTA”) gives approval for these types of procedure on children. The Official Solicitor was concerned that whilst there is a process for best interest determinations of those adults without capacity such as the present, the children who fall outside of the MCA do not have similar protection. 

The starting point is the protection given by the legislation. The Human Tissue Act 2004 and its supporting Regulations provide that the donation cannot take place unless by a child or person who lacks capacity unless it is approved by the HTA. The HTA cannot approve unless: (a) no reward has been or it to be given; and (b) it is lawful (ie someone consents or there is authorise lawful authority). 

The Official Solicitor pointed out that nowhere within the process is the donor’s interests paramount: to the Trust it is the donee to whom they owe their duty; the HTA checks only to ensure there is no monetary payment or coercion in the donation. It appears from the case that the assessor from the HTA prepares a report and one of the sections of that report includes a passage headed “best interests” but that is only cursory. 

The Official Solicitor described this as a vacuum. The judge thought that the vacuum was ‘partially but not completely’ filled. It is not entirely apparent from the judgment what he felt filled the vacuum, but it may be that the judge considered that the best interest assessment section within the report met those needs. He gave guidance that there should be a “considered” risk and benefit analysis by the HTA assessor: by that I take that he means something more than the cursory evaluation in the present case. 

The HTA Code of Practice provides that there should be court authorisation where the procedure is proposed for an adult lacking capacity. But what protection does a child have? 

Where a child is over the age of 16, she can lawfully consent to medical treatment in the same way as an adult (s.8 Family Law Reform Act 1996). If she lacked capacity to do so, she would also have the protection of the MCA which applies to those who have attained the age of 16, and so best interest decisions can be made in the Court of Protection. 

Where a child is under the age of 16, she can lawfully consent to medical treatment if she is competent to do so (“Gillick-competent”). A child is Gillick-competent if she “has sufficient understanding and intelligence to enable him or her to understand fully what is proposed” (Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112). The law therefore recognises that if she is Gillick-competent, she could lawfully consent to the procedure and donation of the stem cells. This is also recognised by the HTA Code of Practice.

What if she is Gillick-competent but refuses? There is currently a tension in the law in relation to this, which requires a much more comprehensive exploration than is suitable for this piece. Put shortly, the Court of Appeal in Re W (Medical Treatment: Court’s Jurisdiction) [1993] Fam 64 concluded that even where a Gillick-competent child refuses medical treatment, a person holding parental responsibility could nonetheless consent on his behalf. It is hard to see this view standing up to scrutiny if it were challenged now: particularly in light of the Human Rights Act 1998, and the decision of the Supreme Court in Re D [2019] UKSC 42 (which seems to be contrary in principle to the proposition; and given Baroness Hale’s comments that “whether the consent of a parent remains effective even if a child, with capacity, has refused consent is a more controversial question (which fortunately does not arise in this case)”. 

Whether or not a person lawfully could take stem cells against a Gillick-competent child’s wishes, it is clear that any such decision should be taken by a court and not by clinicians. This is also reflected in the HTA Code of Practice. 

Finally, for those children who are not Gillick-competent, it is likely that it would be a proper exercise of parental responsibility to choose whether or not to give that consent. Where there is a dispute, tan application should be made to the Family Courts to make that determination. 

The Official Solicitor’s skepticism may be well founded in practice. There is, however, a layer of legal protection given by the fact that there has to be some scrutiny and authorisation by the HTA before such a procedure could conceivably take place: as Cohen J says it can only be right that that requires a proper assessment of the benefits and detriments to the donor as well as the donee. Where there is doubt, that should properly be explored by a court who can make a determination with the donor’s welfare at the centre of its decision. 

It seems to me that the reality is likely to be that there will rarely be circumstances where it would not be in a child or incapacitious adult’s best interests to undergo a procedure that could save a close family member. The benefits are likely to outweigh the minor risks and discomfort afforded by the procedure. Nevertheless, there are legal safeguards in place and when in doubt, that doubt should be resolved by application to the court. 

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Court of Protection and Injunctive Relief – Revisited

Do the powers of the Court of Protection extend to granting injunctive relief restraining non-subject individuals from acting in a manner which may cause harm to the vulnerable person with whom the court is concerned? That was the question that had to be answered by Keehan J. in the recent case of A Local Authority v SF (Injunctive Relief) [2020] EWCOP 19. 

After surveying the provisions of the Mental Capacity Act 2005, and the developing jurisprudence, he concluded that it does. 

The case concerned SF, who was vulnerable to exploitation, including sexual exploitation. The local authority, supported by the Official Solicitor, sought an injunction preventing one named individual from attending SF’s accommodation, to protect her from exploitation. An interim injunction was granted early in the proceedings by Williams J. The matter then came before Keehan J., who questioned the jurisdictional basis of the Court of Protection to grant injunctions, including interim, and subsequently discharged the interim injunction. 

At the final hearing Keehan J. was persuaded that the court did have the power to grant injunctions. 

The court considered, in particular, the terms of sections 15, 16 and 17 of the MCA 2005, and section 47 of the Act entitled ‘General Powers and Effect of Orders etc.”. Section 47(1) provides: “the court has in connection with its jurisdiction the same powers, rights, privileges and authority as the High Court”. The High Court emphatically has powers to grant injunctive relief. 

The court considered the developing jurisprudence in respect of injunctive relief being granted by the Court of Protection. In particular: (1) MASM v MMAM (by her litigation friend, the Official Solicitor), MM, London Borough of Hackney & University Hospital NHS Foundation Trust [2015] EWCOP 3 (Hayden J.); (2) Re Leslie Whiting [2013] EWHC B27 (Fam), [2014] C.O.P.L.R. 107; and (3) North Yorkshire County Council v Elliot [2019] EWFC 37. 

In MASM Hayden J. emphasised that the Court of Protection has the same powers of the High Court. In that case, there had been no injunctive relief nor was the contemplation of injunctive relief. The case concerned the possibility of enforcement of a declaration, where a person had acted contrary to intention of the declaration. 

Again, Hayden J. heard the case of Re Whiting. That was an application for committal for contempt of a breach of an injunction made by a district judge in the Court of Protection. The case did not consider, in detail, the basis on which the injunction was granted, although it was clearly under the aegis of the MCA 2005. At the conclusion of the committal proceedings, Hayden J. continued the injunction and therefore implicitly accepted he had such jurisdiction. 

Finally, the Elliot case was also a case for committal for breach of an injunction that had been made by Cobb J. in the Court of Protection, in which he again clearly accepted jurisdiction to grant injunctive relief under the provisions of the MCA 2005. The circumstances of the injunction granted in that case were similar to the present.

Drawing these strings together and having considered the statutory provisions, and the decision of two experienced judges of the High Court who implicitly accepted the jurisdiction, Keehan J. was willing to conclude that the Court of Protection does have jurisdiction to grant injunctions. This is a power which could be granted by the High Court, and had been preserved in the Court of Protection by s.47(1) MCA 2005. His conclusion was fortified by the provisions of s.17(1) MCA 2005 which allowed the court to prohibit contact between a named person and P. 

Contact, Care Homes and Covid

Readers will be glad to hear, with a collective sigh of relief, that this article does not purport to be  further ‘guidance’ on the current situation. We are all thoroughly full to the brim with guidance. I simply hope this can help to illustrate one early example of the court’s decisions which consider best interest decision making where the restrictions which Covid has necessitate are in play. 

The Vice President of the Court of Protection, Hayden J, has had opportunity on two occasions to visit the issue in the case of BP (BP v Surrey County Council [2020] EWCOP 17; BP v Surrey County Council [2020] EWCOP 22). The case was heard on two separate occasions, one at the end of March and again towards the middle of April. 

Background

BP is a man of 83 years and who suffers with Alzheimers. He is also deaf, which impedes his ability to communicate although, with the assistance of a communication board, he is able to do so. He has a loving family, and he is evidently a popular and well-loved man. In June 2019, his circumstances necessitated him moving to a care home. All agree he has been well cared for by the care home. Whilst staying at the care home, BP was lucky to have many visitors from his family and friends. It was a significant part of his routine, and he clearly cherished seeing his family. His daughter described that to BP “family was everything”. 

As is the case with so many people in both the Court of Protection and the Family Courts, the pandemic led to a seismic shift in BP’s ability to see his family and friends. The care home took the decision early on, in common with most others, that they would not allow any visits to the home. This included some medical staff and, relevant to the present case, a psychiatrist instructed to assess BP’s capacity to decide on his residence. 

BP’s daughter applied for declarations, in summary, that the care home must reinstate daily visits for the family, failing which BP should move to live with her with a package of care. She also sought declarations that the restrictions imposed by the care home amounted to an unlawful interference with BP’s Article 5 and 8 rights. 

March Hearing

The first reported hearing took place on 25 March 2020, in the early days of the pandemic. Hayden J surveyed the relevant legal provisions, including both the ECHR and authorities, and the UN Convention of the Rights of Persons with Disabilities (“CRPD”). 

He drew attention to the Statement of Principle by Council of Europe’s relevant committee, and in particular that:

“(4) Any restrictive measures taken vis-a-vis persons deprived of their liberty to prevent the spread of COVID-10 should have a legal basis and be necessary, proportionate respectful of human dignity and restricted in time. Persons deprived of their liberty should receive comprehensive information, in a language they understand, about any such measures.

(5) As close personal contact encourages the spread of the virus, concerted efforts should be made by all relevant authorities to resort to alternatives to deprivation of liberty. Such an approach is imperative, in particular, in situations of overcrowding…” (my emphasis added). 

Hayden J. also considered the provisions of Article 15 ECHR which allows for derogation of articles 5 and 8 in “times of public emergency threatening the life of the nation”. On the question of whether the derogation provisions apply, he concluded strikingly: 

“It strikes me as redundant of any contrary argument that we are facing “a public emergency” which is “threatening the life of the nation”, to use the phraseology of Article 15. That is not a sentence that I or any other judge of my generation would ever have anticipated writing. The enormity of it has caused me to reflect, at considerable length, before committing it to print”. 

Having considered those provisions, Hayden J concluded that it was in BP’s best interest to remain where he was, in the care home. Part of that was driven by the fact that the arrangements for BP to return home were impractical: in particular his daughter could not provide him with the constant supervision he would require and there were no carers able to provide that. Some practical arrangements had been made to allow his daughter to see BP, albeit that she still could not be permitted entry and the arrangements required her to sit by BP’s window. 

Hayden J emphasised that Article 5 protected not just the right to liberty, but also security which must be engaged in respect of a vulnerable person in the current circumstances. The interference with BP’s article 8 rights was exacerbated by the fact that he was deaf which restricted his ability to use alternative methods of contact include video calling. Nevertheless, both the deprivation of his liberty and the interference with his article 8 rights were necessary and proportionate. 

The final point of importance which arises from the cases is the process of undertaking capacity assessments. Hayden J considered that, despite the difficulties with BP’s ability to communicate orally and requiring the communication board, it would be appropriate for the assessment to be completed remotely, relying on his Guidance which he had provided only days before. 

April Hearing

The case was restored to court for hearing on 17 April 2020 with a judgment being handed down on 29 April 2020. The situation had developed during that short time. 

BP had suffered some ill health, but fortunately had recovered. Significantly, the impact on BP of his inability to see his family had been profound. He struggled to understand the need for social distancing and the restrictions on visiting, and thought he was being punished. It was thought that this had triggered a depression. 

The parties had agreed, by the time the matter was before the judge, that it was in BP’s best interest to move to live with his daughter, with a package of carers to assist her. 

The final point of note, was that the identified psychiatrist had refused to complete the capacity assessment using remote means. Whilst making no criticism, Hayden J re-emphasised the point that he considers most capacity hearings will have to be conducted remotely in the present circumstances.

Comment

This is not a case which sets out any groundbreaking advancement in law, but it does highlight the practical considerations on the ground. Ultimately, we must all remember that in these cases we are dealing with people, who have frailties. There can be no ‘one size fits all’ model, and parties must be creative to ensure the needs of the individual concerned are met. Unfortunately, BP was unable to comprehend the reasons for restrictions which has led him to become depressed. The court, and practitioners, must be astute to consider developing circumstances and be willing to change their mind. These are uncertain times for all, but the difficulties we are all feeling must be exacerbated fr those who struggle to understand the reasons. 

With the benefit of hindsight it is clear that the initial decision, that BP should remain in the care home, was not the right one. One of the difficulties had been that there were no carers who could provide support to BP. One speculates whether greater efforts could have been made at that earlier stage to find those carers.

In respect of capacity assessments, the case highlights that remote assessments will not always be appropriate. I would suggest practitioners remain astute to the inherent difficulties that remote assessments must entail: it is difficult enough to assess capacity  if the person may have borderline, or fluctuating capacity; the nuance of conversation and understanding could be completely lost in discussion over video (particularly as here with a person who communicates other than orally). We must all be willing to identify when that may be the case. Practitioners must bear firmly in mind the principle of the MCA that 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. We have had an overwhelming amount of guidance in recent times, but we must not let guidelines be so rigorously applied that they lead to unfair results. Let them not become tramlines. 

Lock Up the Kids: Part 2

This is the second of two posts considering the combined impact of two recent cases of the President (sitting in the Court of Appeal, and at first instance) on how the family courts should approach cases where there is an element of confinement of a child our young person (under 18) which may amount to a deprivation of liberty. The first post can be read here.

To recap, in the first post I considered in some detail the case of Re D [2017] EWCA Civ 1695 in which the Court of Appeal tackled the thorny question of whether a parent can provide valid consent to a confinement so that it does not engage Article 5 (spoiler: yes, they can). The President, with whom the other remainder of the court agreed, concluded that the ability to provide valid consent fell within the “zones of parental responsibility” if the child is not competent to make his own decision (that is, he is not Gillick-competent). As a digression, an interesting question which has not yet been answered is whether (even if a child is Gillick-competent) a parent can nevertheless provide valid consent. After all, in the context of medical treatment at least, consent is a ‘flack-jacket’ and a parent can provide sufficient consent, even where a competent child refuses (Re W [1993] Fam. 64). That is a discussion for another time.  

Re A-F

In this article, I consider the subsequent decision of the President in Re A-F (Children) [2018] EWHC 138. In Re A-F, Munby P. was sitting in the Family Division. The President was considering a number of consolidated cases in each of which the child (who had some form of mental disability or impairment) was placed in care, in either foster care or a specialist residential facility. The question before the Court was one that the President had touched upon in Re D but was not before him for consideration in that case and, thus, his comments were obiter. The question is this: where a child is subject to a care order, and placed in foster care, is there a deprivation of liberty? A simple question to pose, but more tricky to answer.

Storck component (c) is clearly engaged as the child is in care, and therefore any confinement would be attributable to the state.

On the question of Storck component (b) the court endorsed what was said by Keehan J in a separate case (Re AB (Deprivation of Liberty: Consent) [2015] EWHC 3125 (Fam)) which is that where a child is placed in the care of the local authority pursuant to a care (or interim) care order, neither the local authority nor parents can provide valid consent to the confinement. That case was cited without comment by the Court of Appeal in Re D. It follows, given the President’s endorsement, that the deprivation of liberty cannot be avoided on the ground of consent.

The only remaining refuge lies with Storck (a). As a reminder, the “acid test” formulated in Cheshire West of whether a person is confined for the purpose of Storck (a) is:

“whether a person is under the complete supervision and control of those caring for her and is not free to leave the place where she lives.” 

There were thus two questions for the Court to address: (1) is a child in care is under the complete supervision and control of those caring for her; and (2) is she free to leave the place where she lives?

Dealing firstly with whether a child is free to leave the place where she lives, the Court held that the realities of modern life are such that a child under the age of 16 has no option but to live at home, and therefore is not, in the sense of the expression used in the authorities, free to leave the place where she lives. The President appears to have established a precedent that the typical child under the age of 16 is not ‘free to leave the place where she lives’. The critical question then in cases of this nature must be whether or not the child is under the ‘complete supervision and control’ of those caring for her.

In Re D the Court posed this quandary:

Take a typical child say three or eight years old (the precise age is immaterial). By typical, I mean a child subject to no physical or mental disabilities who is, broadly speaking, at the same developmental stage as most children of the same age and who is living with parents at home, without any local authority involvement, in the kind of circumstances in which, broadly speaking, most children of that age are accustomed to live in contemporary Britain. Now such a child is living in circumstances which plainly satisfy the Cheshire West “acid test” – the child, to use Baroness Hale’s words, “is under the complete supervision and control of those caring for her and is not free to leave the place where she lives.” But common – sense would plainly indicate that such a child is not, within the meaning of Article 5, deprived of his or her liberty. But – and this is the key question – why not? 

The answer to that question was simple: there was no state involvement and so it could not be a deprivation of liberty (Storck (c) not being satisfied). The question becomes more difficult to answer when the facts are changes slightly, and the same child is in foster care pursuant to a care order. There is then clear state involvement. The issue in that varied factual matrix must then be whether: (a) there is a valid consent; or (b) whether or not the child is, objectively, confined. Having already considered (a), the determinative question becomes (b).

In addressing this issue, the President returned to Cheshire West. His Lordship found assistance in the speech of Lord Kerr. Lord Kerr reminded us that the correct comparator when considering whether someone is confined is someone of similar age, station, familial background, relative maturity and without disability. He continued, at paragraph 78, to say:

All children are (or should be) subject to some level of restraint. This adjusts with their maturation and change in circumstances. If MIG and MEG had the same freedom from constraint as would any child or young person of similar age, their liberty would not be restricted, whatever their level of disability. As a matter of objective fact, however, constraints beyond those which apply to young people of full ability are – and have to be – applied to them. There is therefore a restriction of liberty in their cases. Because the restriction of liberty is – and must remain – a constant feature of their lives, the restriction amounts to a deprivation of liberty. 

Very young children, of course, because of their youth and dependence on others, have – an objectively ascertainable – curtailment of their liberty but this is a condition common to all children of tender age. There is no question, therefore, of suggesting that infant children are deprived of their liberty in the normal family setting. A comparator for a young child is not a fully matured adult, or even a partly mature adolescent. 

Whilst not a question before them for consideration, the Court of Appeal in Re D (Munby P. and Irwin LJ, with David Richards LJ declined to express a view) considered that a young child is not ‘confined’ despite living in circumstances which meet the “acid test”.

The President revisited this theme in Re A-F, when it was before him for consideration. He affirmed his comments in Re D. The follow up question was then posed: at what stage (or age) does a set of circumstances which would not in a ‘young child’ amount to a confinement, subsequently become a confinement? At what age does ‘complete supervision and control’ pass from the ordinary to something extra-ordinary so as to become a confinement which may engage Article 5?

Whilst the Court stressed that each case must be considered on a case by case basis, the President did feel able to provide some general guidance, which will be of use to practitioners in future cases:

i) A child aged 10, even if under pretty constant supervision, is unlikely to be “confined” for the purpose of Storck component (a). 

ii) A child aged 11, if under constant supervision, may, in contrast be so “confined”, though the court should be astute to avoid coming too readily to such a conclusion. 

iii) Once a child who is under constant supervision has reached the age of 12, the court will more readily come to that conclusion. 

The situation has now then, fortunately, been clarified to an extent. A child in care under the age of 10 is unlikely to be deprived of their liberty regardless of the level of control and supervision; a child aged 11 may be subject to constant supervision and control such as to lead to the conclusion that he is confined but a court should be slow to reach such a conclusion; and a child aged 12 or over under constant supervision and control is more likely to be confined which may engage their rights under Article 5.

Whether the particular circumstances amount to constant supervision and control must inevitably be considered on a case by case basis, but the authorities seem to suggest that where: a child is supervised on a 1:1 basis around the clock; is not able to leave their home without the consent and supervision of an adult; and may be physically restrained if they so try to leave a Court is unlikely to find it difficult to reach the conclusion they under constant control and supervision.

Anecdotally, many residential placements for elder teenagers have these very high levels of control. Other issues to look out for are whether there are locks on the internal and external doors and when they are activated; how a carer or residential unit will act if the young person attempts to leave (will they employ physical restraint?); what are the staffing levels; what are the restrictions on the young person spending time with the other young people at the home; and what is the restriction or control on the use of internet and mobile phones.

If, having considered those checklists, practitioners come to the view that the child may be under constant supervision and control, it is prudent to bring these matters to the attention of the Court to allow it to be the ultimate arbiter: this protects against risk that the child may be subject to an unlawful placement.

General Guidance

At the conclusion of Re A-F, the Court was invited, and acceded to the invitation, to provide some guidance as to the correct approach to these applications by local authorities, the Court and parties generally. Practitioners would be wise to familiarise themselves with it [paras 47 to 57].

In summary:

1. A confinement will be lawful if it is both necessary and proportionate, and has been authorised by a judge of the Family Division;
2. An application should be made where the circumstances in which the child is, or will be living, constitute at least arguably a deprivation of liberty;
3. There is no need for the court to make an order specifically authorising each element of the circumstances constituting the confinement, but should authorise the deprivation at “X” placement as described in document “Y”;
4. There must be an oral hearing in the Family Division;
5. A Children’s Guardian must be appointed, but if the child is of an age and wishes to express his feelings he should be able to do so in person;
6. Where an order is made, there must be regular reviews and at least once every 12 months. If the local authority considers there needs to be continued authorisation, a fresh application should be made. The judge can direct that subsequent applications be dealt with on the papers in the first instance if there is no significant change in circumstances, with an oral hearing to follow if necessary.
7. The evidence in support of an application should address: (i) the nature of the regime and those features which may involve a confinement; (ii) the child’s circumstances which led to the proposed placement; (iii) why the regime is said to be necessary and proportionate; (iv) the views of the child, the child’s parents, and the IRO; (v) recentl LAC review minutes, and care plan; (vi) evidence of the child’s competence (which may require an expert report);
8. Where there are concurrent care proceedings, the fact that the case may involve a deprivation of liberty should be raised at the earliest opportunity. The Court should list the final hearing before a section 9 judge where possible. Where it is not possible for the final hearing to be listed before a section 9 judge, steps should be taken to arrange a separate hearing as soon as possible and if at all possible within days at most.
9. Typically, there will be no need for the judge hearing the application for authorisation to revisit the matters already determined by the care judge, unless there are grounds for thinking that the circumstances may have changed. The care judge should, wherever possible and appropriate, address as many of these issues as possible in the care proceedings judgment.

I have said it before, and I will say it again, practitioners should be astute and alive to these issues. They are serious issues, and may have serious consequences if they are not identified and dealt with. They may lead to breach of the young person’s rights, and possible exposure of local authorities to damages. Beware!

Lock Up the Kids: Part 1

As we approach the end of #ChildMentalHealthWeek it is only fitting to write a post which touches upon one of the most critical, although often overlooked, aspects of cases in the family court which deal with children with profound mental health difficulties. This is the first part of two posts dealing with deprivation of liberty of the children by the Family Court.

Munby P. has recently handed down his decision in Re A-F (Children) [2018] EWHC 138 (Fam), the second case in recent months in which he considered how the family courts should approach the confinement of children which may, or may not, amount to a deprivation of liberty engaging Article 5. The first case was Re D [2017] EWCA Civ 1695 – it is a tome running to in excess of 50 pages with a fascinating analysis for any scholar on the development of the rights and obligations which accompany the privilege of holding parental responsibility for a child and young person. The cases, taken together, have clarified many questions which regularly arise to practitioners in the family courts. These two posts will make an effort to draw those strings together.

Background

When questions relating to deprivation of liberty arise, the starting point will often be the speech of Baroness Hale in the important case of Cheshire West. That case summarise the essential characteristics which amount to a deprivation of liberty engaging Article 5 rights, as set out by the ECtHR in Strasbourg in Storck v Germany (2005) 43 EHRR 96. As a reminder those are:

…what is the essential character of a deprivation of liberty? …three components can be derived… as follows: (a) an objective component of confinement in a  particular restricted place for a not negligible length of time; (b) the subjective component of lack of valid consent; and (c) the attribution of responsibility to the state. 

One matter which has received clarity from the President following both cases, is terminology. One cannot but think that this has been a bugbear for Munby P. He makes clear (what ought to have always been clear), and practitioners would be ill-advised to ignore, that there is a distinction between ‘confinement’ and ‘deprivation of liberty’. Confinement is simply the first part of the test of considering whether there is a deprivation of liberty which engages Article 5 (Storck component (a)). Not all confinements will be a deprivation of liberty engaging Article 5 (although every deprivation of liberty will involve a confinement – a bit like the fingers and thumbs conundrum).

The question of deprivation of liberty most often concerns adults and, insofar as lawyers are concerned, will be most widely understood by those who practise in the Court of Protection. For those of us who practise in the Family Court (for whom our civil counterparts would consider that we would not know where to find Bailii or a law library) the question of deprivation of liberty as it relates to children can be somewhat of a minefield.

Is a baby in care who has no control over what he does from day to day deprived of his liberty? Is a 15 year old child who has been grounded for staying out too late? How about the profoundly autistic child who is accommodated under s.20 at a residential school? These are the questions which have been helpfully answered in the two present cases. Read on to be enlightened (or at least to see slightly more clearly through the diluted mud).

Re D [2017] EWCA Civ 1695

It is often helpful to start with the facts. D was a boy who was 16 years old at the time of the judgment. He suffers from Attention Deficit Hyperactivity Disorder (ADHD), Asperger’s syndrome and touretts syndrome. His behaviour was challenging and he was physically and verbally aggressive. He presented with anxiety and paranoid behaviours and his prescribed medications had limited effect. CAMHS admitted D informally to Hospital B at the age of 15. At that time, the matter came before Keehan J sitting as a judge of the Family Division (Re D (A Child) (Deprivation of Liberty) [2015] EWHC 922). Keehan J found that the: (a) the regime at Hospital B subjected D to a confinement; and (b) that the parents were able to (and did) consent to the placement and that consent falls within the ‘zones of parental responsibility’. As such, the placement did not amount to a deprivation of liberty.

The matter returned before Keehan J sitting in the Court of Protection when D had reached the age of 16, which is the case subject to appeal. By this time, D had moved from Hospital B to House A. The parents continued to agree to this move (the child being accommodated with the parents’ consent pursuant to s.20 of the Children Act 1989). The question before the Court was whether D was subject to a deprivation of liberty which engaged his Article 5 rights, and if so whether that deprivation should be authorised by the court.

It was common ground that the circumstances at House A constituted an objective confinement (and therefore Storck compenent (a) was not in dispute). There was an argument, which did not make much ground, that the confinement was not attributable to the state as it was said that the parents could remove the child at any time as he was accommodated under s.20. The Court gave this little muster. The local authority had secured the placement, assessed and secured his care regime, and that it pays all the costs. Therefore, Storck component (c) could not easily assist the Court.

The main thrust of the arguments and discussions in the case turn on Storck component (b). It was argued by the local authority that there was no deprivation of liberty because the parents consented to the child being placed in the unit, and they were able to do so being his parents. It will be recalled that this argument had succeeded before Keehan J in the first of the Re D cases. Keehan J distinguished the matter in the second on the basis of the child’s age (he had now reached 16), and drew solace from the fact that various pieces of legislation including the Mental Capacity Act 2005 and the United Nations Convention on the Rights of the Child draw similar distinctions between children under the age of 16 and those who have reached it.

After a great deal of time considering the authorities dating back to 1857 (it really is a fascinating discussion [paras 50-107]) the Court of Appeal ultimately concluded that it was within the “zones of parental responsibility” for a parent of a child, who did not have the capacity to decide himself, to provide valid consent to confinement sufficient to satisfy Storck component (b).

The Court followed the domestic definition of child, which is anyone under the age of 18. The Court dismissed the approach of fixing an arbitrary age, which is what the learned judge of first instance did, of 16 after which a parent cannot consent on behalf of the child. The Court followed the principles established in the seminal case of Gillick v West Norfolk and Wisebeck Area Health Authority [1986] AC 112 that the parents can exercise parental responsibility until such time that the child attains competence to make decisions for themselves ‘Gillick competence’. The consent, therefore, of the parents to the placement of the 16 year old child who was not Gillick-competent was sufficient and there was no deprivation of liberty.

The position has been clarified that a parent of a child who is not looked after by the local authority can exercise their parental responsibility to provide valid consent (and thus ensuring any confinement is not a deprivation of liberty) up until such time that the child either reaches 18 or attains Gillick-competence. For practitioners, the effect of the decision will depend entirely on the circumstances in which the confinement is considered. One of the many occasions in which these questions arise are in respect of teenage children who a local authority may seek to place in a residential unit which would severely restrict their liberty but which is not ‘secure accommodation’ within the meaning of the relevant legislation. In such a case, the Court would have to consider whether the child is Gillick-competent and if she is, and declines to grant consent, the confinement would be a deprivation of liberty and thus would require the authorisation of the Court.

The second scenario in which practitioners may face this is in a case where the child is profoundly disabled in such a way so as not to be Gillick-competent. In such a case the consent of the parent is valid such as to avoid a deprivation of liberty.

A word of warning: this state of affairs applies only to children who are not looked after under a care (or interim care) order. In Re AB (Deprivation of Liberty: Consent) [2015] EWHC 3125 (Fam) Keehan J held that where a child who is placed under a care order neither the local authority nor parents can provide valid consent to the confinement. That case was cited without comment by the Court of Appeal in Re D. In Re A-F, which will be considered in the next post, Munby P. again referred to the case of Re A-F and this time with approval; it must be taken to be the correct state of law for any cases at first instance.

Those who face these questions (particularly when acting for a local authority) should be astute to ensure that they are put before the Court; failure to do so may lead to a breach of the child’s human rights and exposure to damages.

I hope this has provided some clarity. The next post will consider the more recent decision of Re A-F which gives helpful guidance on Storck component (a) and whether a child in care, and under complete supervision and control, is thus deprived of their liberty (hint: it depends on his age). The case also provides some very helpful guidance on procedural aspects with which we should all familiarise ourselves.

Securing Secure Accommodation

Many will be slow to forget the remarks of Sir James Munby P. in Re X (No 3) [2017] EWHC 2036 (Fam) (3 August 2017) when commenting on the availability of secure accommodation for children suffering from mental health issues:

The lack of proper provision for X – and, one fears, too many like her – is an outrage.

That case was a terribly sad one: the young girl at the centre of it had a clear and genuine desire to end her own life and had made a number of attempts to do so. She needed specialist provision to protect her from herself. She was due to leave her current provision who had said they simply could not continue to meet the child’s needs. Their professional view was “to send her back to any community setting, especially [her home town] ‘is a suicide mission to a catastrophic level’. Staff do not think it will take more than 24 to 48 hours before they receive a phone call stating that X has made a successful attempt on her life”. The specialist provision she required was simply unavailable because of lack of resources for people with mental health difficulties, and especially young people with those needs.

The case garnered a great deal of press attention given the President’s strong remarks that society will have blood on our hands if, as a result of the lack of proper provision, the she were to succeed in her efforts to take her own life. A placement was ultimately secured, but only after converting an adult psychiatric intensive care unit into a children’s low secure unit following influence from senior figures in the NHS and the medical profession.

This theme was revisited by Hayden J only weeks later (24 August 2017) in Re F [2017] EWHC 2189 (Fam). The Court determined that a 14 year old boy was a danger to himself and other young people, and so necessitated the provision of secure accommodation to protect himself and the public more broadly. Again, there was no beds available due to the shortage. The judge directed that a copy of that judgment be sent to the Secretary of State for Education.

On 13 September 2017, a similar case was heard by HHJ Rowe QC as the Designated Family Judge for West London (Re M [2017] EWFC B61). The child in this case, a 15 year old boy, had a history of absconding from his family. When absconding, he placed both himself and others at risk of significant harm. The Court had determined that he required a psychiatric examination in order to determine his long term placement options, and what was ultimately in his best interests. His being accommodated in secure accommodation would help facilitate this assessment. Once again, there were no beds available for this troubled boy despite every effort being made by the local authority.

Those who practise in public children cases will readily acknowledge that these cases are not by any stretch exceptional. It is often the case that local authorities simply cannot find beds for children who need these specialist provisions. A vicious circle follows when a bed is found, but the child is missing and so that bed is lost. When the child is located, there are no beds and so the cycle repeats. The President recognised this in a reported judgement regarding X in Re X (No 4) [2017] EWHC 2084 (Fam):

I cannot escape the powerful feeling that, but for my judgment, the steps subsequently taken would have been neither as effective nor as speedily effective as appears to have been the case. This, however, is not a matter for congratulation; on the contrary, it is, of itself, yet further cause for concern. The provision of the care that someone like X needs should not be dependent upon judicial involvement, nor should someone like X be privileged just because her case comes before a very senior judge. I emphasise this because a mass of informed, if anecdotal, opinion indicates that X’s is not an isolated case and that there are far too many young women in similar predicaments. How are they to be protected?

The concerns of the President must be echoed loudly and frequently. These cases come before the courts every day, most often before district and circuit judges. Would any director of NHS England, the Deputy Mental Health, Programme of Care and High Secure Lead, or the President of the Royal College of Psychiatrists have acted personally and so quickly as they did for X if the remarks had been made by those judges rather than the President of the Family Division? Unlikely. But should it take the President to make these unprecedented comments to find these provisions? Absolutely not.

The test for authorising the use of secure accommodation is a stringent one, and so where secure accommodation is authorised it is because of real need to protect the child or other people. The Court must be satisfied (s.25 Children Act 1989):

(a) that:

(i) he has a history of absconding and is likely to abscond from any other description of accommodation; and

(ii) if he absconds, he is likely to suffer significant harm; or

(b) that if he is kept in any other description of accommodation he is likely to injure himself or other persons.

Most social workers recognise the Draconian nature of these orders, and so it is only where it is thought necessary that a local authority considers making these applications – truly a last resort. It makes it even more worrying that there is such a scarcity of resources.

In each of these cases, the Court has laid the blame at the door of the Secretary of State for Education. It is vital that steps are urgently taken to address this need. The consequences of failure to do so for some of the most vulnerable children in our society can be life or death. Theresa May has pledged to tackle the woefully inadequate provisions for those in our society who suffer from mental health difficulties. Little appears to have been done to meet that promise to date. It was shown in X that it can be done; although the ad hoc nature of provision in that case is not something that ought to be encouraged. The promises that have been made must be met.

Late though it has come, the judiciary must continue to highlight these failings to the executive, and must do so publicly. Only then perhaps will the public recognise that real harm that is being caused, and will the executive take steps to remedy it.

A tale of dissatisfaction

What is to happen when one half of a married couple is assessed to lack capacity to consent to sexual intercourse? And what are the consequences of failing to act appropriately? Those are the questions that were answered by Sir Mark Hedley in CH v A Metropolitan Council [2017] EWCOP 12.

The facts of the case are rather unique. CH, a man with Downs Syndrome, married his wife in 2010. They lived together from that time and happily had an intimate relationship. That is until March 2015 when, as a result of the couple seeking fertility treatment, CH’s wife was advised that CH did not have capacity to consent to sexual intercourse, and that by continuing sexual relations she may be committing a serious criminal offence. Naturally, CH’s wife did not want to suffer the consequences of that and so moved out of the marital bedroom and “reduced any physical expression of affection”.

The psychologist who assessed CH as lacking capacity advised that he may be able to gain sufficient understanding for him to have capacity if he undertook a course in sex education. Rather unfortunately, the Local Authority failed to take steps to implement this advice. This then led to a dry spell for CH and his wife until March 2017 (some 2 years later), when after having issued proceedings, the necessary courses were undertaken by CH and he was finally assessed to have capacity.

It was not disputed that CH’s Article 8 rights had been breached by the Local Authority. An offer of £10,000 of damages (along with an apology and costs) had been made by the Local Authority to compensate for this, and CH’s legal advisers thought this an acceptable agreement. Given CH lacked capacity, an approval hearing was convened for the Court to consider whether the agreement was in CH’s best interests. The Court ultimately concluded that it was.

The damages agreed represent an award for a period of approximately 12 months. CH brought separate proceedings against the Local Authority in the Court of Protection, and the sex education course finally began in June 2016. This was followed by a second course because further work was needed before CH was considered to have gained capacity. The Court accepted that the Local Authority would need some time to set up the course, and therefore considered the breaches to be of a 12 month duration.

What can be taken from this frustrating saga?

Firstly, heed section 1(3) of the Mental Capacity Act 2005 which provides:

“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.”

It is not enough to simply assess a person’s capacity. Consideration must (imperative) be given to what steps can be taken to help a person make a decision. And when you get that advice, act on it – and swiftly.

Secondly, if you are a public body and you do not act on advice, and as a result there is a breach of rights, be prepared to put your hand in your pocket. The £10,000 awarded in this case was described to be towards the lower end of the range of reasonable damages. The Court was willing to agree it on the basis that the Local Authority had also agreed to pay the costs in the Court of Protection proceedings (£21,600), plus the pre-action costs of these proceedings (£7,395), and the actual costs of these proceedings (not quantified). Therefore, in total, the blunder cost the Local Authority well in excess of £38,000.

Finally, a rather interesting point was made by the Court which I repeat:

“Before turning to the proposed settlement itself one further observation may be ventured. This case is unusual; indeed thus far it may be unique in being applied to a settled, monogamous and exclusive married relationship. In those rare cases where the courts have made declarations of incapacity to consent to sexual relations, they have generally been cases of restraining sexual disinhibition to protect from abuse or the serious likelihood of abuse. However, logically the question of capacity must apply also to married relations and the criminal law makes no distinction between settled relations and sexual disinhibition or indeed between sexual relations within or outside marriage. Society’s entirely proper concern to protect those who are particularly vulnerable may lead to surprising, perhaps even unforeseen consequences. Such, however, may be the price of protection for all”.

Fortunately, all ended well. We are told that CH and his wife resumed a normal conjugal relationship, which subsisted.