A recent case in the Court of Protection about a sixteen year old boy in residential care, shows how complex mental health law can be when it comes to age limits. Before saying something about this case, try these questions:
- What is the minimum age limit for someone to be subject to decision making under the Mental Capacity Act?
- What is the minimum age for someone to be subject to the Deprivation of Liberty safeguards?
- What is the minimum age for someone to be subject to the Mental Health Act?
Answers later but first the issues in this case were a young boy with attention deficit hyperactive disorder and a mild learning disability who was placed in residential care after a period in hospital. The case is Birmingham City Council v D and you can read the case at: http://www.bailii.org/ew/cases/EWCOP/2016/8.html) This boy was just turned 16 years of age and didn’t have the mental capacity to consent to the care arrangement, wasn’t free to leave the care home, and was under constant supervision – thereby meeting the famous ‘acid test’ of being deprived of your liberty. However, and here’s the answer to question 2, the Deprivation of Liberty of Safeguards only apply to people over the age of 18, and so this case went to the Court of Protection, where any complex cases concerning mental capacity need to go to. The local authority in the case argued that because he was only 16 his parents could consent to the care home arrangement because they had parental responsibility. However the judge rejected that argument. He said that because the Mental Capacity Act applies to people over the age of 16 – and there’s the answer to question 1- parents cannot give consent for their child. This is the biggest significance of this case, parental responsibility does not stretch to consenting to your 16 or 17 year old being deprived of their liberty.
Detention in hospital
This case was mainly about the issues involved in the Mental Capacity Act, and deprivation of liberty. However prior to moving into residential care, this boy was in hospital and was then just 15. The consultant treating him decided the Mental Health Act was not appropriate to be used. There’s the answer to question 3. There is no minimum age at which someone can be detained in hospital under the Mental Health Act, so it was a possible route for those involved in his care to take. However, just to make things more complicated – people cannot be received into guardianship under the Mental Health Act until they are aged 16.
David Beckingham – QCS Expert Mental Health Contributor
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