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Other than as a sanction for criminal acts, adults with capacity cannot in England be deprived of their liberty. But children and young people, competent or otherwise, have their liberty curtailed as a matter of course by their parents. The parent would regard this restriction of their child's freedom as common sense, while the law would view the parental restrictions as the exercise of their duty to ensure their offspring's welfare. On what legal basis can doctors justify depriving patients of their liberty to enable treatment? And to what extent is parents’ curtailment of their offspring's liberty to enable medical treatment lawful, following the recent decision in Trust A v X & Ors?
The position for adults
Adult patients, 18 years and over, are frequently deprived of their liberty. Adults, with or without capacity, may be compulsorily detained for assessment and treatment of mental illness under the powers conferred by the Mental Health Act 1983 (MHA 1983). This statute guarantees (among other things) that the admission is necessary, and that appropriate treatment is available. The statutory framework surrounding the MHA 1983 ensures that the reasons for a person's compulsory detention, and its continuance, are regularly and frequently reviewed, providing an essential safeguard for civil liberty.
Neither adult nor child can be forcibly detained for the treatment of a non-mental health disorder, such as diabetes, under the auspices of this Act. This restriction on lawful detention may be modified when a specific physical manifestation of the mental illness requires treatment; for instance, dealing with wounds inflicted as a result of the mental disorder. This principle has been cautiously extended by the courts. A 24-year-old psychopathic woman with a compulsion to harm herself stopped eating for this purpose.1 The court found her compulsory tube feeding to be a lawful ancillary medical treatment of her mental illness …