Jake Richards, 9 Gough ChambersThis article argues that the suspension on prison visits during this period and the deficiency of measures to mitigate the impact of this on family life and to protect...
Growing up under the Mental Capacity Act: The twilight zone of 16-18 year olds
Sep 29, 2018, 22:31 PM
Mental health, Mental Capacity Act, care orders, Cheshire West, Re MN, Re B-S, Re B, Children Act
How differently does the law treat young people who ‘graduate’ from the family law jurisdiction to that of the Court of Protection? How great a difference in treatment should there be? This article will examine two cases reported in 2015 in an attempt to shed some light on these questions.
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Oct 30, 2015, 08:30 AM
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Most of us are used to the idea that the law treats us differently when we turn 18. We gain greater freedom; we lose access to certain public resources. For those growing up subject to a Care Order, or with a high level of care due to a disability, this transition is all the more complex. These young people move not just from one category to another, but between jurisdictions. How differently does the law treat young people who ‘graduate’ from the family law jurisdiction to that of the Court of Protection? How great a difference in treatment should there be? This article will examine two cases reported in 2015 in an attempt to shed some light on these questions.
Access to public resources
The first case, Re MN  EWCA Civ 411 was widely reported. Sitting in the Court of Appeal, the President of the Family Court and the Court of Protection, Sir James Munby, made an understandable effort to tie the principles and practices of the two jurisdictions together. MN was a ‘profoundly disabled’ young man, lacking capacity to make decisions relating to his care and contact with others. At the age of 8, he was made subject to a Care Order and moved to a residential placement. At the age of 18, the responsibility for funding his placement transferred to the relevant Clinical Commissioning Group (CCG). This included responsibility for funding supported contact with his parents in the community.
The parents wanted contact with MN at their home. The CCG was not offering this as an option. It would have necessitated the employment and training of alternative carers from a third party, and in any event was not considered to be in MN’s best interests. Was the Court’s scrutiny of the CCG’s position any different from that of a family judge assessing the local authority’s care plan in proceedings under the Children Act? Not at all, according to the President:
‘In my judgment exactly the same principles as apply to care cases involving children apply also as to personal welfare cases involving incapacitated adults, whether the case is proceeding in the Family Division under the inherent jurisdiction or, as here, in the Court of Protection .’ (para )
This common ground includes the principle that ‘rigorous probing, searching questions and persuasion are permissible; pressure is not’ (para ).
It is not surprising that the President of both jurisdictions should seek to achieve some consistency between them. But is this the case, and does Strasbourg case-law support the application of ‘exactly the same’ principles to children and disabled adults?
The case cited by the President as the benchmark for the scrutiny of local authority care plans is para  of Re B-S  EWCA Civ 1146, in which rigorous probing and exploration are indeed mentioned. The full paragraph, however, runs as follows:
'It is the obligation of the local authority to make the order which the court has determined is proportionate work. The local authority cannot press for a more drastic form of order, least of all press for adoption, because it is unable or unwilling to support a less interventionist form of order. Judges must be alert to the point and must be rigorous in exploring and probing local authority thinking in cases where there is any reason to suspect that resource issues may be affecting the local authority's thinking.'
The principle implicit in this paragraph is that resource considerations do not justify an otherwise disproportionate interference with a family’s Art 8 rights, and therefore cannot form part of a local authority’s thinking. It is entirely justified in this context, of course, deriving as it does from the Supreme Court’s decision in Re B  UKSC 33, and its prohibition on greater interference with a these rights than is demonstrably necessary.
This principle does not apply in a commissioning context. Here, the public body in question is not simply intervening in the life of one individual, and incurring resource obligations in the process. The CCG exists to serve all the individuals for which it is responsible. In such circumstances, the speech of Lord Bingham in R v Cambridgeshire Health Authority  remains good law, and resources are inevitably part of the CCG’s thinking:
'I have no doubt that in a perfect world any treatment which a patient, or a patient's family, sought would be provided if doctors were willing to give it, no matter how much it cost, particularly when a life was potentially at stake. It would however, in my view, be shutting one's eyes to the real world if the court were to proceed on the basis that we do live in such a world. It is common knowledge that health authorities of all kinds are constantly pressed to make ends meet … Difficult and agonising judgments have to be made as to how a limited budget is best allocated to the maximum advantage of the maximum number of patients. That is not a judgment which the court can make.'
One explanation for the contrast between this representation of commissioning principles, and the welfare principles outlined by Munby in Re MN, is the different focus of the respective judgments. The appeal in Re MN concerned the role of both the CCG and the local authority in MN’s care. However, the majority of the judgment deals with the restrictions placed by the local authority on parental involvement in MN’s ‘intimate care.’ This was the aspect of the case which concerned intervention in MN’s family life, as opposed to the funding of his care.
It is therefore less surprising that the judgment includes multiple references to Article 8 ECHR, but none to Article 5. The latter is of course the provision which led to the establishment of the Court of Protection via the Bournewood case, and then threw its gates wide open in Cheshire West. It is the right to liberty which underpins the Mental Capacity Act 2005, just as the right to family life under Art 8 informs much of the Children Act 1989. It is also the right to liberty which, in Cheshire West, was construed by Lady Hale as the right (to the greatest degree possible) to be treated like everyone else of the same age and situation, regardless of any disability.
Where, then, does this leave our young person? They may simply move from a residential children’s placement to an adult residential placement (as was the case with MN). They may indeed continue to have a care plan devised, implemented and reviewed by a number of professionals. But they will no longer be subject to a Care Order, with the corresponding duty on the local authority to promote contact with their parents under s 34 Children Act 1989. In principle, once they turn 16 no restriction of their liberty can be authorised by their parents. They come under the auspices of the Court of Protection and, with it, the safeguards built into the Mental Capacity Act. And if they move into the NHS continuing healthcare system aged 18, resources are relevant when their healthcare is commissioned.
It may sound as though young people lose out in this transition, and perhaps to some extent they do. But the alternative is worse: to be treated like looked after children for the rest of their lives goes contrary to the heart of the non-discriminatory principles of the Court of Protection. As Lady Hale said in P v Cheshire West:
‘It is axiomatic that people with disabilities, both mental and physical, have the same human rights as the rest of the human race. It may be that those rights have sometimes to be limited or restricted because of their disabilities, but the starting point should be the same as that for everyone else.’
This principle arguably applies to commissioning decisions as well as deprivations of liberty. Disabled and non-disabled adults alike draw from a pool of resources, allocated according to clinical need. These needs may be greater on account of their disability, but it is misleading to think of these adults as children under lifelong wardship, whose care plans can be kept free of resource considerations.
In the event, Sir James Munby did not overrule, or even criticise, the CCG’s decision not to fund supported contact between MN and his parents. However, his reasoning remains of wider interest, and in his own words, ‘raises fundamental questions as to the nature of the Court of Protection’s jurisdiction.’ As young people mature, close relationships with immediate family form a new balance with the growing importance of independence. In the same way, a child’s Article 5 rights begin to take precedence over the Article 8 rights of their parents. It follows that different legal principles should apply.
Deprivation of liberty
On a final note, an interesting counterpoint can be found in the judgment of Keehan J in Trust A v X & Anors  EWHC 922. As mentioned above, when a child turns 16 any deprivation of their liberty can no longer be authorised by their parents. Prior to this point, however, such authorisation may fall within the ‘zone of parental responsibility.’ In determining the scope of this zone, Keehan J acknowledged, careful consideration must be had to:
‘(i) the child’s right to liberty under article 5 ... (ii) the parent’s right to respect for family life under article 8.’ (para )
On the facts, the Court found that the deprivation of the 15-year-old child’s liberty did fall within this zone of parental responsibility. Keehan J held that an analogy with the approach under the Mental Capacity Act would not be of assistance:
‘When D attains the age of 16 his future accommodation and any deprivation of liberty involved will be matter for the Court of Protection to consider. The fact that a different regime and different considerations will apply once D has become 16 should not, in my judgment, affect the approach I should take during any period when he is not 16.’ (para )
It could be argued that the different considerations within the two statutes stem from a difference in underlying principle. Even the concept of ‘welfare’ is assessed through different considerations. Under s 1 Children Act, the court can make a pseudo-parental determination of a child’s ‘needs’ and how best to meet them, as well as considering any other characteristics of the child it feels are relevant.
Under s 4 Mental Capacity Act, the emphasis is more on whether P will regain capacity to make the relevant decision, and if not what is the greatest extent to which he can practicably participate in the decision-making. That these considerations incline so much more towards respect for the autonomy of the individual is unsurprising in an Act underpinned throughout by Art 5 ECHR. It is worth noting how great a difference this can make in practice. Those involved in planning the care of young people with disabilities have every reason to ensure that any transitions are carefully managed. As far as the law is concerned, however, the principles on which their care is funded and authorised can change within the 24 hours of a birthday.