Parents’ consent to child’s detention ruled legal

The detention of a mentally ill child in a secure hospital can fall within the remit of parental consent – even though it counts as a deprivation of liberty, according to a High Court Case.

In Trust A v X and Others [2015] EWHC 922 (Fam) a 15 year old boy with attention deficit hyperactivity disorder, Asperger’s and Tourette’s Syndromes had been in hospital for a year. The Unit’s staff had kept him under constant supervision and control. The boy’s behavioural disabilities made him very challenging to look after and meant his parents had struggled to look after him.

The Local Authority applied to the court to find out whether the boy’s care counted as a deprivation of liberty and whether it was lawful. It argued that although the boy’s care was a deprivation of liberty, the consent of the boy’s parents to his care arrangements was an essential plank in making the arrangements lawful.

The Hospital Authority argued that the boy had the same rights under the European Convention of Human Rights as an adult – and parental consent was not adequate to override this – particularly because they had given their consent because they could not cope with him. The boy could be both physically and verbally aggressive, paranoid and prone to urinating and defecating in inappropriate places. His presence at home was deemed a threat to his younger brother.

Mr Justice Keehan ruled that the boy’s hospital stay was a deprivation of his liberty but that it was adequate that his parents had consented to this – not least because the parents were acting under medical advice when they consented.  The Judge was, however, careful to say that his ruling should not be regarded as applying to all children aged below sixteen who found themselves in similar circumstances. He said each case would have to be judged upon its facts.

Cases where the mentally ill are detained became more complex after the case Surrey County Council v P, Cheshire West last year. This case, which defined deprivation of liberty as where someone is under continuous supervision and control, said that authorities would need to seek legal clarification in such cases.