Friday, 6 February 2009

Whose consent?

Where a child requires medical treatment, the old rule was that the parents could consent on his or her behalf. Now, it seems the old rule is also the new rule.

For the last 20 years or so, it has been accepted that a parent can consent to medical treatment for a child. This position is the result of Nielsen v Denmark (1989) 11 EHRR 175 and it will obtain, even if the child is competent and has refused consent. In Nielsen, a boy who did not want to go into a closed psychiatric ward was admitted there with the consent of his mother.

Late last year, the Department of Health cast doubt upon this position, at least in the case of competent children. In the revised Code of Practice to the Mental Health Act 1983, it noted that Nielsen was decided before the Human Rights Act 1998 came into effect and “the trend in recent cases is to reflect greater autonomy for under 18s in law”, and concluded: “it is not wise to rely on the consent of a person with parental responsibility to treat a young person who refuses in these circumstances.” (Department of Health, 2008, Mental Health Act 1983 Code of Practice, paragraphs 36.33 and 36.43)

This conclusion caused dismay among practitioners in child and adolescent mental health. More recently, however, and despite what the Department of Health said, the House of Lords has suggested that Nielsen remains good law.

In Austin v Commissioner of Police for the Metropolis [2009] UKHL 5, their Lordships found, perhaps contentiously, that a woman who took part in the May Day protests of 2001 had not been deprived of liberty when, along with several thousand other people, she was corralled into Oxford Circus by the police and detained there for a number of hours. They said that the purpose of these measures – crowd control – was a permissible one and “in the interests of the community”, so that Article 5 of the ECHR, which enshrines the right to liberty, wasn’t even engaged.

In support of their contention that the purpose of the measures was relevant to the question of whether Article 5 was engaged, their Lordships examined Nielsen and found it to be directly relevant to the case before them. They went as far as to cite with approval the following passage of the judgment in that case: “Hospitalisation was decided upon by [the mother] in accordance with expert medical advice. It must be possible for a child like the applicant to be admitted to hospital at the request of the holder of parental rights”.

If, as seems likely, Nielsen remains – or has again become – good law, the concerns of the Department of Health are baseless and any child, even an unwilling one, may be treated with the consent of his parent.

Wednesday, 4 February 2009

Whose liberty?

Photo: Peter Jordan, PA

The House of Lords recently held that a woman who took part in the May Day protests of 2001, and who was one of several thousand people whom the police confined in Oxford Circus for up to seven hours, was not deprived of liberty. (Austin v Metropolitan Police Commissioner [2009] UKHL 5) The woman lost her case because their Lordships decided that the reason the police did what they did was relevant, and because they accepted that what the police did was proportionate and done in good faith.

Giving the lead judgment, Lord Hope cited a number of cases brought under the European Convention on Human Rights (ECHR), which, he said, established that in deciding whether there is a deprivation of liberty, “Account must be taken of […] the context in which the restriction of liberty occurs” and, therefore, of the purpose of the measures used. (Paragraph 21) Here, the purpose – crowd control – was a permissible one and “in the interests of the community”, so that Article 5 of the ECHR, which enshrines the right to liberty, wasn’t even engaged. This conclusion is likely to be deeply contentious, not least because the authorities do not mention ‘purpose’ at all; rather, they focus on the “type, duration, effects and manner of implementation of the measure in question”. (See, for example: Engel v The Netherlands (1979-80) 1 EHRR 647; Guzzardi v Italy (1981) 3 EHRR 333) These are plainly not the same things.

Lord Hope’s conclusion would appear to owe a great deal to the controversial European Court of Human Rights (ECtHR) decision in HM v Switzerland (2004) 38 EHRR 17. (See: David Hewitt, Whatever Happened to Winterwerp? Solicitors Journal, 10 May 2002, p 436) It did not find favour with Lord Walker, who argued that purpose was irrelevant to the question whether confinement amounted to a deprivation of liberty: “If confinement amounting to deprivation of liberty and personal security is established, good intentions cannot make up for any deficiencies in justification of the confinement”. (Paragraph 44) This, though, was a minority view. The other three members of the Appellate Committee fell in behind Lord Hope and, as she had been in the Court of Appeal - and also, though for slightly different reasons, at first instance - the claimant was unsuccessful.

The possibility that what would otherwise be deprivation of liberty will be prevented from being so by mere good intentions might surprise, and possibly infuriate, the government. Though it could easily have done so, the ECtHR did not reach this conclusion in the ‘Bournewood’ case. There, the Court found that Article 5 was engaged – and had been breached – where Mr L, a man with autism, had been confined to a mental health hospital for three months and prevented from seeing his carers. The Court said this, and not much more, amounted to an assumption of “effective, unqualified control” over the man. (HL v United Kingdom (2004) 40 EHRR 761) Lord Hope did not refer to this aspect of the case.

Because of Bournewood, the government has introduced the Deprivation of Liberty Safeguards (DoLS), which from 1 April 2009 will allow incapable people to be deprived of liberty if certain forms of protection are in place.

It was accepted that the measures used upon Mr L had been in his best interests. If, as the House of Lords has just done, the ECtHR had allowed that fact to prevent Article 5 being engaged, the government would neither have lost the Bournewood case nor been forced to introduce the DoLS. As it is, the DoLS will be relevant where an incapable person is deprived of liberty in his own best interests. Yet if strict observation of best interests will prevent there being a deprivation of liberty, there will be no patient to whom the DoLS apply. Could it be that even before they have come into force, the DoLS are otiose?

And the implications of their Lordships decision go further. If, no matter how constraining they might be, measures taken in the best interests of a patient will never engage Article 5, what is to become of people with mental disorder who are detained under the Mental Health Act? How are they to be protected against unlawful compulsion and what are we to make of the dozens of cases such people have brought, and sometimes won, claiming an impermissible breach of the right to liberty? This baleful question first arose after HM v Switzerland was decided in Strasbourg. It seems it must now be asked again, only this time, much closer to home.