Re RK (Minor: Deprivation of liberty)
Summary: This case concerned RK, a 17 year old woman who suffered from autism, ADHD, severe learning disability and epilepsy, and displayed aggressive and self-harming behaviours. RK was moved to care home placements by the local authority under s.20 Children Act 1989 after her family became unable to care for her at home. The issue for the court was whether RK was deprived of her liberty in the care home placements. If she was, then being under 18, the DOLS regime would not apply, and the local authority would have to apply to the court for declarations authorising the placement, with the consequent reviews.
Mostyn J held that there was no deprivation of liberty, either on the facts, or as a matter of law. He held that where a child is placed under s.20 CA 1989 and the parents have a right under s.20(8) CA 1989 to refuse consent to the placement, there can be no deprivation of liberty. Any restriction on RK's freedom was the result of RK's parents exercising parental responsibility by consenting to the placement, and thus the 'subjective' limb of the test for a deprivation of liberty could not be met. Nor was the objective test met, according to the judge, because RK's care came nowhere near involving depriving her of her liberty. RK lived at the residential placement from Monday to Friday but attended school each day. She returned to her parents' home every weekend. While at the placement, she was allowed unrestricted contact with her parents, and was subject to close supervision at all times, but was apparently not restrained or subject to a particularly strict behavioural management regime. The door to the placement was not locked, although if RK had tried to leave, she would have been brought back. In response to a submission that these arrangements amounted to confinement because they restricted PRKs autonomy, the judge said 'I am not sure that the notion of autonomy is meaningful for a person in RK's position.' He concluded:
'I find it impossible to say, quite apart from s20(8) Children Act 1989, that these factual circumstances amount to a "deprivation of liberty". Indeed it is an abuse of language to suggest it. To suggest that taking steps to prevent RK attacking others amounts to "restraint" signifying confinement is untenable. Equally, to suggest that the petty sanctions I have identified signifies confinement is untenable. The supervision that is supplied is understandably necessary to keep RK safe and to discharge the duty of care. The same is true of the need to ensure that RK takes her medicine. None of these things whether taken individually or collectively comes remotely close to crossing the line marked "deprivation of liberty".'
Further, the local authority was not detaining RK under any 'formal powers', as would be the case if, for example, a care order was in place. RK's parents could remove her from the placement if they chose to withdraw their consent to it (even though on the facts of the case, there was no practical possibility of RK's parents doing any such thing without the local authority's assistance and provision of an alternative care package). If RK's parents have decided not to remove her from the placement, the judge found it difficult to see how the State could be said to be responsible for her detention.
Comment: This decision is interesting and potentially problematic. It seems to represent part of a growing unwillingness on the part of the High Court to recognise deprivations of liberty on the objective test. One is reminded of the submission on behalf of the government in the Bournewood case when it reached the ECtHR that HL could not be deprived of his liberty, because if he was, then so were most residents of care homes and hospitals in England. The courts seem keen to ensure that that prediction is not fulfilled, even though HL was indeed found to have been deprived of his liberty.
On the subjective limb, it seems surprising that parents can consent to a placement that entails a deprivation of liberty for any child under 18 who is incapacitated by reason of a mental health problem, with no recognition of the obvious differences between infants and a young adult. The trick is to find a distinction which though artificial is not arbitrary: in this case, the authors fear that adhering to a 'bright line' categorisation sits uneasily with the more nuanced treatment of young adults in other areas of law, not least the MCA itself.
The judge's analysis of the question of State responsibility is also questionable. It does not appear that relevant caselaw was cited which shows that the State does not have to be directly responsible for a deprivation of liberty to be liable under Article 5. The authors find it difficult to understand how the concept of 'formal powers' for detention being necessary to engage Article 5 fits with HL v UK - the very reason the deprivation of liberty safeguards were introduced was that there was a breach of Article 5 where detention occurred without any formal basis or power.
The authors also note that the judge's comment about autonomy not being a meaningful concept for someone in RK's position is likely to raise hackles amongst those who work towards achieving greater independence for mentally disabled adults and young people. Clearly, RK will never achieve the sort of autonomy someone without her disabilities might enjoy. But there are no doubt many ways in which her autonomy can be promoted, and she can be helped to direct the course of her life, even if only in relation to expressing preferences and making choices about simple or immediate matters.
