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When can a 'young person' be deprived of their liberty under the MCA 2005?

Our People - Lilian Efstathiou
30 April, 2021

The Mental Capacity Act 2005 (“MCA”) applies to all people aged 16 years or over who live in England and Wales and who lack the mental capacity to make decisions for a specific matter, because of an impairment of, or a disturbance in the functioning of, the mind or brain.[1] The MCA is intended to protect and support people who lack the mental capacity to make their own decisions about a variety of matters such as their care arrangements.

Under the Act a, “young person” is a someone aged 16 or 17 years old. A, “child” is defined to mean a person under the age of 16 years old. [2] This is different from the Children Act 1989 where the term, ‘child’ refers to people aged under 18. [3] 

Every person, whatever their circumstances, has the right to “Liberty and security” in accordance with Article 5 ECHR. If your child who is 16 or 17 years old, lacks the mental capacity to make their own decisions, is living under continuous supervision in a community/residential placement and is not free to leave, then they might be deprived of their liberty.

Deprivation of liberty can take place in residential or community settings or other settings for which the State is responsible (foster care or supported living accommodation). But when does the court need to authorise a deprivation of liberty? Can a parent consent to a deprivation of liberty on behalf of a young person?

People with parental responsibility for a young person may impose, or authorise the imposition of, restrictions on behalf of the young person. However, the decisions that a person with parental responsibility can make are those decisions that are seen to sit within the zone of parental control and must not amount to a deprivation of the young person’s liberty.

When considering whether a decision comes within the zone of parental control, two points should be considered:[4]

  1. Is the decision one that a parent should reasonably be expected to make?
  2. Are there any factors that might undermine the validity of this particular person’s parental consent?

The Supreme Court has decided in the case of Re D (A Child: Deprivation of Liberty) [2015] that parental authority is not to be used to authorise the deprivation of a young person’s liberty where a young person does not capacity to consent to arrangements that amount to a deprivation of liberty.[5] It was recommended that any deprivation of liberty for a young person needs to be authorised by the Court of Protection in accordance with the provisions of the MCA. Further, in the case of Birmingham City Council v D and W [2016] it was held that it is not sufficient to rely on parental consent when a young person who is 16 years old is confined and is under continuous supervision and such a case will always require Article 5 safeguards and an application to the Court of Protection for authorisation. The deprivation of liberty would still need to be authorised by the court even where a young person is in the care of a local authority and subject to an interim care, or care order. [6] If in doubt whether the individual circumstances of the young person amount to a deprivation of liberty, the Cheshire West criteria should be borne in mind.[7]

As such, when a young person lacks the mental capacity to make decisions about their care and arrangements and their circumstances may amount to a deprivation of their liberty, these will need to be authorised by the Court of Protection (or under the MHA 1983 if they are detained in hospital and meet the criteria for detention). The Deprivation of Liberty Safeguards are not applicable to young people aged 16 and 17 years old as they only apply to people who are aged 18 and over.  Further, it is important to note that the MCA does not apply to people under 16 years old, and so the deprivation of liberty of children under 16 should be dealt with by the Children Act 1989 or by an application for authorisation under the inherent jurisdiction of the High Court.

If you consider that your child’s circumstances may amount to a deprivation of liberty, make sure you have obtained legal advice and support and speak with professionals involved in their care as to whether an application to the court should be considered.

[1] Mental Capacity Act 2005, section 2(1)

[2] MCA Code of Practice, Chapter 12

[3] Children Act 1989, schedule 1, para 16.

[4] MHA Code of Practice, 19.41

[5] Re D (A Child: Deprivation of Liberty) [2015]

[6] AB, (a child Deprivation of Liberty) Re [2015]

[7] P v Cheshire West and Chester Council and P and Q v Surrey County Council [2014]

Lilian Efstathiou is a solicitor working in the Court of Protection and Wills, Trusts & Probate departments.

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