Ban On Care Home Visits Not Human Rights Violation
The Court of Protection recently handed down a judgement upholding restrictions and full refusal of family member visits to care homes during the Covid-19 emergency.
The case of BP V Surrey County Council could provide guidance in other contentious deprivation of liberty cases during these extreme times.
The emergency application was made on March 20 on behalf of a deaf 83-year-old man (BP), who was diagnosed with Alzheimer’s disease in December 2018, by his Litigation Friend (LF) and daughter FP.
In line with rapidly shifting government advice, BP’s care home (SH) had made the decision to suspend all visits in order for the home to comply with governmental guidance and protect residents and staff from increased risks of contracting Covid-19.
However, FP made the claim that new constrictions, put in place by the care home, constituted an unlawful interference with BP’s human rights, guaranteed by Articles 5, relating to liberty and security, and 8, regarding a right to respect one’s private and family life, in the European Convention of Human Rights (ECHR).
BP has lived at SH care home since 25 June 2019, having been admitted to hospital five days earlier for severe dehydration.
Since BP’s diagnosis for Alzheimer’s disease in December 2018, his wife (RP) had been his main carer. Whilst the pair were managing with increased care support, BP had become a lot more physically aggressive in his behaviour. Once discharged from hospital, it was agreed he would remain at SH until at least 12 August 2019 ‘as a necessary and proportionate deprivation of his liberty.’
Whilst the standard authorisation was due to expire on 2 February 2020, it was extended until 3rd June 2020, pursuant to the order of HHJ Raeside 6th March 2020.’
The applicants’ argument claims that a complete ban on seeing family members, in addition to a human rights abuse, was also detrimental to BP’s routine, mental health and ability to stave off the impact of Alzheimer’s.
FP stated that BP was a popular man receiving regular visits from his family and friends. This included visits from herself six days a week, whereby she would spend at least an hour per day reading him the newspaper. BP’s son also visited four days a week including a weekly visit with BP’s grandchildren. He also received weekly visits from his other daughters and regular visits from extended family and friends. Stimuli and interactions the care facility are unable to provide.
His daughter argued that cutting off physical contact essentially meant withholding all forms of communication as BP’s deafness makes telephony impossible and the use of video conferencing facilities extremely difficult.
The honourable Mr Justice Hayden conceded that ‘there can be no doubt that the change to BP’s quality of life from 5 o’clock on Friday 20th March 2020 was seismic,’ but the importance of complying with governmental guidance supersedes these concerns at this time.
Justice Hayden ruled that in these unprecedented times, relaxing Article 5 is permitted for a limited period. He therefore argued that the restrictions on visitors was proportionate.
However, the restrictions also impacted the care provision BP was able to receive as Mental Capacity Assessors were also unable to physically visit the home. The ruling required all stakeholders to think of ‘creative’ workarounds.
In the case of GP and mental capacity assessments, the ruling means that assessments can now be undertaken by video as long as:
“the assessor will need to make clear exactly what the basis of the assessment is (i.e. video access, review of records, interviews with others, etc.) Whether such evidence is sufficient will then be determined on a case by case basis. It is noted that GPs are rapidly gaining expertise in conducting consultations by video and may readily adopt similar practices for assessments. Careful consideration will need to be given to P being adequately supported, for example by being accompanied by a “trusted person.” These considerations could and should be addressed when the video arrangements are settled. It should always be borne in mind that the arrangements made should be those which, having regard to the circumstances, are most likely to assist P in achieving capacity.”
In terms of BP, the plan involved combining the use of Skype with his communication board to ensure he is still able to have both familial contact and capacity assessments.
The family will also use daily exercise time to visit BP’s window as this was considered ‘proportionate’ (at the time the decision was made although increased social distancing measures could restrict this.)
Justice Hayden, stated:
“The plan that was ultimately put together provides for BP’s education in to the world of Skype with creative use of a communication board and the exploration of concurrent instant messaging.
“Additionally, the family can, by arrangement, go to BP’s bedroom window which is on the ground floor and wave to him and use the communication board. All this will require time, effort and some creativity.
“I am clear that there is mutual resolve by all concerned. When I asked FP what she thought her father would want if he was addressing this question objectively with his full faculties intact, she unhesitatingly told me that the last thing he would want would be to burden her or her family. Approaching this challenging situation from that perspective appeared to give FP some comfort. I am entirely satisfied that this is a balanced and proportionate way forward which respects BP’s dignity and keeps his particular raft of needs at the centre of the plan.
“Equally, I have no doubt that this application, for all the reasons that I have alluded to, was properly brought.”