Supreme Court to hear case on 16-17 year olds, capacity and confinement
The Supreme Court has granted permission to the Official Solicitor to appeal a ruling that a person with parental responsibility can consent to the confinement of their 16- or 17-year-old child where that child has impaired capacity, it has been reported.
39 Essex Chambers said the appeal over the Court of Appeal decision in D (A Child) [2017] EWCA Civ 1695 would be “the first case before the Supreme Court to consider how the Mental Capacity Act 2005 applies in relation to this age group, and how it interacts with the common law concept of parental responsibility.
“Its implications are not confined to situations of confinement, but also to the delivery of medical treatment to older teenagers.”
39 Essex Chambers’ Alex Ruck Keene and Annabel Lee, led by Henry Setright QC of 4PB, are appearing on behalf of the teenager, D (by his litigation friend, the Official Solicitor).
The hearing is listed for 3 and 4 October.
In D (A Child) [2017] EWCA Civ 1695 the Court of Appeal allowed an appeal by Birmingham City Council on one of its grounds.
This was that Mr Justice Keehan in the Court of Appeal had erred in law in finding that a parent cannot consent to arrangements for a child who has attained the age of 16 which would otherwise amount to a deprivation of liberty.
The then President of the Court of Protection, Sir James Munby, concluded that parents could consent on behalf of their child to what would otherwise be a deprivation of liberty if the child lacked Gillick capacity.
In this case the child lacked Gillick capacity and the parents were able to consent, he found.
See also: Browne Jacobson’s analysis of the Court of Appeal ruling.
