Court of Appeal decision in the Matter of D ; DoLs applications on the increase and the Governments response to Law Commission report on Mental…
- Parental consent and deprivation of liberty of 16 and 17 year olds – the Court of Appeal decision in In the Matter of D  EWCA Civ 1695
- Latest DoLS applications up 11%
- Government interim response to Law Commission report on mental capacity and deprivation of liberty
Parental consent and deprivation of liberty of 16 and 17 year olds – the Court of Appeal decision in In the Matter of D  EWCA Civ 1695
In a decision which will be welcomed by local authorities, the Court of Appeal has allowed an appeal by Birmingham City Council against a decision that a disabled 16 year old, known as D, without capacity to make decisions about his residence and care, was deprived of his liberty in a residential placement when his parents had agreed to that placement.
The key aspect of the judgment was the issue of whether a parent can consent to arrangements for a 16 year old which would otherwise be a deprivation of liberty, per the criteria set down in the Cheshire West case (Cheshire West and Chester Council v P  UKSC 19). The Court of Protection had previously found that parental consent was not sufficient once a child turned 16 but the Court of Appeal disagreed, finding that a child’s ability to make decisions was not just about their age but involved issues around maturity and understanding. It therefore had to be dealt with on a child-specific basis.
Once a child turned 16, the issue of whether parents could consent to what would otherwise be a deprivation of liberty depended on whether the child was ‘Gillick competent’, which is the well-established concept governing children and young people’s ability to make their own decisions. Gillick competence or capacity requires the child to have sufficient understanding and intelligence to understand fully the decision which is to be taken, with the matter of them attaining the age of 16 being irrelevant to this consideration. The result of the appeal here therefore was that D’s parents were able to consent to what would otherwise have been a deprivation of liberty since D was not Gillick competent.
Local authorities will be relieved to know that, in cases concerning 16 and 17 year olds lacking capacity, parental consent to what would otherwise be a deprivation of liberty is sufficient.
Latest DoLS applications up 11%
The number of Deprivation of Liberty Safeguards (DoLS) applications submitted in 2016/17 increased to 217,000, compared with 196,000 the previous year, figures just released by NHS Digital show…. READ MORE