This was a hearing to establish whether the long-term hospital detention of a teenage boy was lawful.
By the time he was eight years old, the boy had been diagnosed with Attention Deficit Hyperactivity Disorder, Asperger’s Syndrome and Tourette’s syndrome. At the age of 14, and in view of continuing challenging behavior, his parents sought a mental health placement, and he was subsequently admitted to hospital and placed in a locked ward. He had been detained for 15 months by the time of the full hearing.
Mr Justice Keehan rejected arguments made by the local council that this did not amount to deprivation of liberty:
“The protection of Article 5 of the [European Convention on Human Rights (ECHR)] and the fundamental right to liberty applies to the whole of the human race; young or old and to those with disabilities just as much to those without.”
However, he ruled that the boys’ parents acted within the perimeters of parental responsibility in consenting to his long-term detention.
The mental health trust argued that the parents should not have been able to consent to the boys’ detention, and this was a matter for the state – particularly as they were unable to care for and accommodate him. Hospital doctors were “uneasy about caring for and depriving a child of his liberty, given the length of time and given his age”, the trust explained.
The judge did not accept these, and other, arguments. He praised the actions of the boys’ parents, who had their son’s best interests at heart throughout. Had the boy not been disabled, the detention “would probably amount to ill treatment”:
“The decisions which might be said to come within the zone of parental responsibility for a 15 year old who did not suffer from the conditions with which D has been diagnosed will be of a wholly different order from those decisions which have to be taken by parents whose 15 year old son suffers with D’s disabilities. Thus a decision to keep such a 15 year old boy under constant supervision and control would undoubtedly be considered an inappropriate exercise of parental responsibility and would probably amount to ill treatment. The decision to keep an autistic 15 year old boy who has erratic, challenging and potentially harmful behaviours under constant supervision and control is a quite different matter; to do otherwise would be neglectful. In such a case I consider the decision to keep this young person under constant supervision and control is the proper exercise of parental responsibility.”
The boy turned 16 soon after the hearing, and his detention would, from that point, come under the ambit of the Court of Protection. But this case further highlights the lack of safeguards for children deprived of their liberty on the direction of parents, and the particular vulnerability of disabled children.
It does not appear the guardian representing the child in the hearing addressed his human rights, under the ECHR or the UN Convention on the Rights of the Child and the UN Convention on the Rights of Persons with Disabilities (the latter provides that “the existence of a disability shall in no case justify a deprivation of liberty”). The judge said the guardian “confined her submissions to observations that [the boy] was well placed at Hospital B and was progressing”.
Read the judgment.