In what will be an important and ground-breaking decision, the case of Re D was the subject of an appeal before the Supreme Court last week.
The case concerned D who is a 19-year-old male diagnosed with ADHD, Asperger’s and a learning disability. However, the case first started when D was 16 years old when the local authority, Birmingham City Council, made an application to the Court of Protection seeking orders authorising D’s deprivation of liberty in a hospital. Keehan J held, at first instance, that D was subject to continuous control and not free to leave the hospital, that he lacked capacity to consent to those arrangements himself and that those arrangements were imputable to the state. As part of this decision, he also held that the agreement of the parents was not sufficient for authorities to rely upon as authorisation for the arrangements and therefore that an application to the court would be required.
Birmingham City Council successfully appealed this judgment and the Court of Appeal held (http://www.bailii.org/ew/cases/EWCA/Civ/2017/1695.html) that where a 16 or 17 year old cannot make the decision for himself (the wording that Munby LJ used was where a young person lacks “Gillick capacity”), the consent of someone with parental responsibility would be sufficient to authorise what would be otherwise a deprivation of liberty. This practical implication of this was that in such circumstances it would negate the need for court to authorise the arrangements.
The decision of the Court of Appeal was a controversial one. Whilst some welcomed an easing of the burden on already over-stretched local authorities, others were concerned that young persons’ rights were not be properly protected and there was also uncertainty about the wider ramifications that the decision may have in scenarios involving medical treatment, for example.
The decision of the Supreme Court, once available, will therefore be the final say on where the balance should lie and should provide some welcome clarity on the law relating to deprivation of liberty for young people and scope of parental responsibility.
This case has also attracted widespread media attention for the fact that three of the five judges hearing this case have been women. It is the first time that there has been a female-majority on the bench either in the Supreme Court or its predecessor, the House of Lords. This must be seen as an important milestone, particularly in light of previous comments from the first ever female president of the Supreme Court, Lady Hale, about the need for more diversity at the judiciary.
Before moving to MJC Law, Lauren Crow had conduct of the Re D case as the solicitor instructed by the Official Solicitor on behalf of D, which included the appeal before of Court of Appeal and advising on the appeal to the Supreme Court.