Problems with residential and hospital schools

Today the decision of Re: D (A Child ; deprivation of liberty) has been published.  This case is relevant for all children under 16 in residential school placements.

Background

The child (D) in this case has complex special educational needs. He is 15 and has diagnoses of ADHD, Asperger’s syndrome and Tourette’s syndrome. He has significant difficulties with self-care and independent living skills. He also has been assessed as lacking capacity to make decisions for himself.

D was placed in a residential hospital in October 2013. This was for a multi-agency assessment. He was not free to leave the placement but was cared for, supported and educated there. His parents consented to the placement as being in his best interests (a decision which the Court is very supportive of).

The hospital made an application to the Court to authorise D’s placement at the hospital. In light of the decision in Cheshire West, the hospital was concerned that Court approval of the placement was required. This is because Cheshire West could mean that the placement without Court approval was an unlawful breach of D’s human rights.

Without valid authority, the deprivation of liberty would be an unlawful breach of rights making the hospital / school liable for a damages claim by the child.

What the court has said

There are two main questions: (1) could this placement amount to a “deprivation of liberty”; and (2) could parents authorise it, or does it require Court intervention?

The Court agreed that a placement in a hospital school, or any residential placement, where a child is under constant supervision and control, and is not free to leave, amounts to “deprivation of liberty”.

Generally parents have, in line with the Children Act 1989, Parental Responsibility (PR) for their children. This is a responsibility and power to make best interests decisions on behalf of children. PR is considered to decrease as a child gets older, completely ending when the child reaches 18. In this case, as D is 15, the hospital was concerned that the parents’ PR would not be sufficient to authorise the deprivation of liberty.

The Court found that, in this particular case, the parents’ PR was sufficient. The child lacked capacity to make decisions for himself and had severe and complex special educational needs.

The case is very fact specific, meaning that the decision does not apply to all children under 16. What the case does suggest is that in some cases it may be necessary to seek approval from the High Court for children under 16 to be placed in residential schools. Relevant considerations will be:

• Whether the child is under constant supervision and control
• Whether they are free to leave
• Whether parents have consented to the placement
• The reason for the placement / deprivation of liberty
• The nature of the child’s special educational needs
• Whether the child has capacity
• The child’s age

The younger the child and/or the more complex their special educational needs the more likely it is that parents’ PR will be sufficient to authorise the deprivation of liberty. However, the older the child and the less severe their needs, the more likely a Court application will be needed.

It is worth remembering that for children and young people over the age of 16, any placement which could be “deprivation of liberty” will require authorisation from Court of Protection. This could include residential schools.

This is a developing issue within special educational needs law and it would seem that specialist advice is appropriate in all situations. Parents, schools, local authorities and hospital trusts all need to be alert to this issue.