Deprivation of Liberty and Young People

What is a deprivation of liberty?

Article 5 of the European Convention on Human Rights (ECHR for short) states that everyone has the right to liberty and security of person. It continues to state that no one shall be deprived of their liberty unless it is in accordance with a procedure prescribed by law.

The Deprivation of Liberty Safeguards (often referred to as DoLS) is the legal procedure for when it is necessary to deprive a person, who lacks capacity to make decisions about their care and/or treatment, of their liberty in order to keep them safe.

A person is considered to be deprived of their liberty if, where they are residing, they are subject to continuous supervision and control and are not free to leave. A deprivation of liberty could occur in any setting – including a hospital, a residential placement, an educational facility or the young person’s own home.

Is a young person being deprived of their liberty?

Not every action that interferes with a young person’s liberty amounts to a deprivation of liberty. For example, if a young person is not able to move freely for a short period (minutes or hours), this will only be a restriction upon their liberty. How long this period will be considered to be only a restriction upon liberty as opposed to deprivation of liberty depends upon the circumstances.

In the Cheshire West case ruling, the Supreme Court set out that a deprivation of liberty arises when these three conditions are met:

> the person is in a particular restricted place/confined for a not negligible length of time

> the subjective component of lack of valid consent

> the State is responsible for the confinement

These are also sometimes referred to as the ‘Storck limbs/components’, as they were first identified in the ECHR case of Storck v Germany (2005). These components are just as relevant to determining whether children and young people are deprived of their liberty as they are to adults.

However, a question raised in the courts is if the tests for deciding the first and second conditions (confinement and the lack of valid consent) are met should differ for under 18s given the decision-making role of their parents, please note the courts have focused upon the scope of persons with parental responsibility as opposed to carers.

Confinement -

In cases of deprivation of liberty or adults, the confinement question is answered by considering whether the person is under ‘continuous supervision and control’ and ‘not free to leave’ as set out in the acid test in Cheshire West.

When approaching the confinement question for under 18s, the courts have highlighted the need for a different approach to the aforementioned elements of the acid test, and take into account the restrictions that parents place on their children as part of their usual parenting responsibilities.

The Supreme Court clarified the confinement question in Re D (A Child) ([2019] UKSC 42)

Confinement will be determined by applying the same test for 16 and 17-year-olds as applied to adults - whether the young person is under continuous supervision and control and not free to leave (the acid test).

Although the Supreme Court considered that the key question is whether the restrictions fall within the usual parental control for a child of that age, it is clear from the judgment that a 16-year-old who is under continuous supervision and control and is not free to leave will be confined.

Consent -

For adults the lack of consent question is answered by considering whether a person is capable of consenting to the confinement and gives such consent; in circumstances where a person lacks the capacity to consent, no one else can consent on their behalf.

In cases involving children and young people, the role of parents has also been identified as relevant to the lack of consent, and an issue as whether parents can consent to their child’s confinement where the child is unable to make such a decision.

These considerations have led to a difference in the law’s approach between young people aged 16-17 and children under 16. If the young person has capacity to consent to the confinement and gives their consent, there will be no deprivation of liberty - whereas if the young person does not consent to the confinement, the young person will be deprived of their liberty.

If the young person is unable to consent to the confinement it will not be possible for the young person’s parents to consent to the confinement on their child’s behalf. Accordingly, the young person will be deprived of their liberty.

What needs to be done if it looks like the young person is being deprived of their liberty?

A person, including children and young people, deprivation of liberty can be authorised either by an order of the court or the Mental Health Act 1983 (only in relation to psychiatric admissions).

Court order - If a young person is deprived of their liberty, in most cases it will be necessary for an application to the court to be made in order for that deprivation of liberty to be authorised. Which court is to be applied to will depend on the young person’s circumstances, but the appropriate court is likely to be the Court of Protection.

When an application is made to court, it will be necessary to explain the basis upon which it is said the young person is deprived of their liberty and including why they cannot consent.

The Court of Protection can make declarations and decisions in relation to those aged 16 and above who lack capacity to make specific decisions.

Mental Health Act 1983 - If a young person requires admission to hospital for assessment and treatment for a mental disorder, it will not be necessary to go to court if the criteria for admission under that Act are met.

For further information please do not hesitate to contact us, or refer to this practice guidance resource.