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7.8 Mental Capacity Act and Deprivation of Liberty Guidance

SCOPE OF THIS CHAPTER

This chapter sets out how the Mental Capacity Act 2005 applies to children and young people and the application of Deprivation of Liberty safeguards.

This chapter was added to the manual in July 2016.


Contents

  1. Introduction
  2. Children Under 16 Years
  3. Young People Aged 16 - 17 Years
  4. Care or Treatment for Young People Aged 16-17
  5. Legal Proceedings Involving Young People Aged 16-17
  6. Deprivation of Liberty Safeguards


1. Introduction

This guidance looks at the few parts of the Mental Capacity Act that may affect children under 16 years of age. It also explains the position of young people aged 16 and 17 years and the overlapping laws that affect them.

This guidance should be read in conjunction with 'Mental Capacity Act 2005, Health and Social Care Practice Guidelines and for further clarification, Public Guardian 'Code of Practice'.

Within the MCA's Code of Practice, 'children' refers to people aged below 16. 'Young people' refers to people aged 16-17. This differs from the Children Act 1989 and the law more generally; where the term 'child' is used to refer to people aged under 18.

In this guidance, as throughout the Code, a person's capacity (or lack of capacity) refers specifically to their capacity to make a particular decision at the time it needs to be made and the lack of capacity to make a decision is caused by an impairment or disturbance that affects how the mind or brain works.


2. Children Under 16 Years

The Act does not generally apply to people under the age of 16 but there are two exceptions:

  1. The Court of Protection can make decisions about a child's property or finances (or appoint a deputy to make these decisions) if the child lacks capacity to make such decisions within Section 2(1)* of the Act and is likely to still lack capacity to make financial decisions when they reach the age of 18 (Section 18(3));
  2. Offences of ill treatment or wilful neglect of a person who lacks capacity within Section 2(1)* can also apply to victims younger than 16 (Section 44).


3. Young People Aged 16 - 17 Years

Most of the Act applies to young people aged 16-17 years, who may lack capacity within Section 2(1)* to make specific decisions but there are three exceptions:

  1. Only people aged 18 and over can make a Lasting Power of Attorney;
  2. Only people aged 18 and over can make an advance decision to refuse medical treatment;
  3. The Court of Protection may only make a statutory will for a person aged 18 and over.


4. Care or Treatment for Young People Aged 16-17

People carrying out acts in connection with the care or treatment of a young person aged 16-17 who lacks capacity to consent within Section2(1)* will generally have protection from liability (Section 5), as long as the person carrying out the act:

  • Has taken reasonable steps to establish that the young person lacks capacity;
  • Reasonably believes that the young person lacks capacity and that the act is in the young person's best interests;
  • And follows the Act's principles.

When assessing the young person's best interests, the person providing care or treatment must consult those involved in the young person's care and anyone interested in their welfare - if it is practical and appropriate to do so. This may include the young person's parents. Care should be taken not to unlawfully breach the young person's right to confidentiality.

Nothing in Section 5 of the Act excludes a person's civil liability for loss or damage, or his criminal liability, resulting from his negligence in carrying out the act.


5. Legal Proceedings Involving Young People Aged 16-17

Sometimes there will be disagreements about the care, treatment or welfare of a young person aged 16 or 17 who lacks capacity to make relevant decisions. Depending on the circumstances, the case may be heard in the family courts or the Court of Protection.

The Court of Protection may transfer a case to the family courts, and vice versa. This means that the choice of court will depend on what is appropriate in the particular circumstances of the case. For example, if the parents of a 17 year old who has profound learning difficulties cannot agree on the young person's residence or contact, it may be appropriate for the Court of Protection to deal with the disputed issues as any orders made under the Children Act 1989 will expire on the young person's 18th birthday.


6. Deprivation of Liberty Safeguards

Introduction

Deprivation of Liberty safeguards (DoLs) was introduced in April 2009 as part of the implementation of the Mental Capacity Act 2005 (MCA). The aim of DoLs and the related legislation and guidance is to ensure that there is better legal and administrative protection for all those who may for whatever reason lack capacity to consent to the care they are receiving including where they live and how they are cared for on a day to day basis. It makes clear that where a child is on an interim care order of care order a local authority cannot consent to a deprivation of liberty and that where a child is accommodated under Section 20 of the Children Act 1989 whether parents can consent will depend on the particular circumstances of the case. Where parents cannot consent to deprivation of liberty the local authority will have to seek leave from the high Court for the Court to exercise its inherent jurisdiction in order to lawfully deprive a child of their liberty.

“What is a deprivation of liberty”

Three factors determine deprivation of liberty under Article 5 of the European Convention on Human Rights:

  1. The objective element – The person is confined in a particularly place for an extended period of time;
  2. The subjective element – There is no consent either because the person has not consented to, or lacks capacity to consent to, the control placed on them;
  3. The state element – The deprivation of liberty may be on the responsibility of the state, either directly or indirectly.

Click here for further information and please also see The Law Society, Deprivation of liberty: a practical guide.

Implications for Practice

The criteria for consideration of whether Deprivation of Liberty Safeguards should apply are:

  1. “Local authorities are under a duty to consider whether any children in need, or looked-after children, are, especially those in foster care or in a residential placement, subject to restrictions amounting to a deprivation of liberty;
  2. The Cheshire West criteria must be rigorously applied to the individual circumstances of each case;
  3. The comparison to be made is not with another child of the same age placed in foster care or in a residential home, but simply with another child of the same age;
  4. A deprivation of liberty will be lawful if warranted under statute; for example, under s.25 of the Children Act 1989 or the Mental Health Act 1983 or under the remand provisions of LASPO 2012 or if a child has received a custodial sentence under the PCCSA 2000;
  5. Where a child is not looked after, then an apparent deprivation of liberty may not in fact be a deprivation at all if it falls within the zone of parental responsibility exercised by his parents (see Re D). The exercise of parental responsibility may amount to a valid consent, with the consequence that the second limb of Cheshire West is not met. In those circumstances, the court will not need to make any declaration as to the lawfulness of the child's deprivation of liberty;
  6. Where a child is a looked-after child, different considerations may apply, regardless of whether the parents consent to the deprivation of liberty;
  7. Where a child is the subject of an interim care order or a care order, it is extremely unlikely that a parent could consent to what would otherwise amount to a deprivation of liberty. In those circumstances, a local authority cannot consent to a deprivation of liberty;
  8. The local authority must first consider whether s.25 of the Children Act is applicable or appropriate in the circumstances of the individual case. This will require an analysis of:
    1. Whether any of the regulations disapply s.25;
    2. Whether the intended placement is accommodation provided for the purposes of restricting liberty and, thus, secure accommodation within s.25; and
    3. Whether the test set out in s.25.1(a) or (b) is met.
  9. If it is not, then the s.100(4) leave hurdle is likely to be crossed on the basis that any unlawful deprivation of liberty is likely to constitute significant harm;
  10. Irrespective of the means by which the court authorises the deprivation of a child's liberty, whether under s.25 or the inherent jurisdiction, the local authority should cease to impose such deprivation as soon as (1) the s.25 criteria are not met, or (2) the reasons justifying the deprivation of liberty no longer subsist. Authorisation is permissive and not prescriptive.”

If you think the above criteria are potentially met the a DOL assessment must be completed and legal advice sought. Click here to view the template for this assessment.

If, following a DOL assessment, it is identified that the case meets the acid test then a capacity assessment must also be completed. Click here to view the template for this assessment.

Points for social work practice

  • Where a child aged under 16’s placement involves a deprivation of liberty, this must be properly authorized;
  • Where the child is subject to a care order, the local authority cannot consent to – and thereby authorize – the deprivation of liberty. To permit this would deny the child the safeguards against arbitrary detention required by Article 5 of the European Convention on Human Rights;
  • The position in relation to deprivation of liberty within a Section 20 (voluntary accommodation) arrangement is less clear-cut. In some cases, the child’s parent/s can properly consent to deprivation of liberty – for example, the judge said: “an agreed reception into care of a child, that is beneficial and for a short-lived period, where the parent and local authority are working together co-operatively in the best interests of the child”. However, a parent could not give a valid consent to deprivation of liberty in a Section 20 placement “as a prelude to the issue of care proceedings” and where the local authority contend the ‘significant harm’ threshold is met;
  • The High Court judge, Justice Keehan gave guidance on the management of local authority placements in which a child is or may be deprived of liberty. Local authorities must consider whether children in need, or looked-after children, are in placements amounting to deprivation of liberty. The issue cannot be ignored;
  • The test for determining whether a deprivation of liberty exists is that set out in the Supreme Court’s decision in the Cheshire West case. Is the child subject to continuous supervision and control and are they free to leave?
  • Children who live with their parents – and are not ‘looked after’ – are not unlawfully deprived of their liberty if the arrangement is consented to by a parent if consent is given in the proper exercise of parental responsibility;
  • For children under a care order (or certain Section 20 placements), lawful authority for deprivation of liberty cannot be supplied by either the local authority or the parent/s. Court approval is required;
  • Court approval will either be given in the exercise of the court’s statutory power to approve use of secure accommodation (Section 25 of the Children Act 1989) or under the High Court’s inherent jurisdiction;
  • An additional set of criteria must be met in order for secure accommodation to be used under Section 25 of the Children Act 1989;
  • The High Court is likely to give a local authority permission to make an inherent jurisdiction application in a case falling outside the Section 25 criteria.

End