Mental Capacity Update

26 September 2019 – 39 Essex Chambers

The Supreme Court has held (by a majority) where a 16 or 17 year old child cannot (or does not) give their own consent to circumstances satisfying the ‘acid test’ in Cheshire West, and if state either knows or ought to know of the circumstances, then the child is to be seen as deprived of their liberty for purposes of Article 5 European Convention of Human Rights, and requires the protections afforded by that Article. That is so whether or not their parent(s) are either seeking to consent to those arrangements if imposed by others or directly implementing them themselves. This decision resets the position to where it stood prior to the decision of the Court of Appeal in 2017, and will require public bodies to consider whether they need to make applications to either the Court of Protection or High Court to ensure that 16/17 year olds for whom they have direct or indirect responsibility are lawfully deprived of their liberty. In due course, the situation of 16/17 year olds lacking capacity to consent applying the MCA 2005 will fall to be considered under the Liberty Protection Safeguards, and the judgment therefore reinforces the need for children’s services in local authorities and NHS bodies with responsibility for under 18s to undertake the necessary work to prepare for LPS come 1 October 2020.

Click [here] for the background to the decision, the reasoning of the majority (Hale, Black and Arden SCJJ) and the minority (Carnwath and Lloyd-Jones SCJJ), discussion of some issues not addressed, and final practical implications. We will in the next Mental Capacity Report provide commentary upon the decision.

Alex Ruck Keene and Annabel Lee appeared for the Appellant D by his litigation friend the Official Solicitor, and Tor Butler-Cole QC for the Intervener Equality and Human Rights Commission.

Our Court of Protection team can provide expert advice and assistance in relation to specific cases that may now arise in consequence of the decision, about strategic matters to respond to the judgment, and to prepare for the LPS. Please contact

Ed. As ever, I would like to express my thanks and gratitude to specialist barristers:

Alex Ruck Keene
Victoria Butler-Cole
Neil Allen
Annabel Lee
Nicola Kohn
Katie Scott
Katherine Barnes
Simon Edwards (P&A)

for their kind permission to publish a link to the case summaries above which first appeared in Mental Capacity Law Newsletter, October 2019, published by 39 Essex Chambers.

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