The Court of Protection has allowed a local NHS Trust to treat an autistic teenager even though it involves a “deprivation of [his] liberty”.
The boy functioned quite well up until 2007 when he began to struggle. He displayed “psychotic symptoms and a high level of aggressive behaviour” which led to his detention under the Mental Health Act.
In 2011, he experienced a “catastrophic decline” in his overall health. Doctors carried out a number of tests to determine the cause of his health problems but could not find an answer. There were still a number of conditions which could be responsible, but the only way to identify them was for the boy to have a CT or MRI scan.
However, in order to perform the necessary scans, the boy would have to be put under an anaesthetic because “he simply would not stay still” without it. They also proposed that some dental work should be carried out while the boy was under to fix some cavities. This was necessary, the Trust claimed, because “calamitous results” could occur if his teeth are left untreated.
Such treatment would amount to a ‘deprivation of liberty’ for the boy, so the Trust applied to the Court of Protection for permission to go ahead. Under Article 5 of the European Convention of Human Rights, everyone is entitled to “liberty and security of person”. Sometimes doctors believe it is necessary to restrict the liberty of people who cannot make decisions for themselves, as a result of illness or disability, in order to carry out medical procedures of various kinds, or keep them safe from harm.
Mr Justice Mostyn said that the Mental Health Act had “a thicket of legislative drafting which seems to be designed to confuse” when it came to such applications. This Act contains various legal safeguards to protect the rights of vulnerable people unable to make their own decisions.
After a close examination of the provisions in the Act, the judge ruled that he was “wholly satisfied that [the teenager] is eligible for the treatment which is being proposed and therefore for a deprivation of liberty”.
The full judgment is available online here.