Judge: Hayden J
Citation:  EWCOP 22
This is the second decision concerning an 83 year old man, BP. It follows the earlier one on 25 March 2020, the first time that the Court of Protection had to consider the impact of COVID-19 in the care home setting. At the earlier hearing, Hayden J had refused the application made by BP’s daughter and litigation friend (FP), for a declaration that it was in his best interests to return home and into her care. At that stage, Hayden J had identified that there:
However, and perhaps slightly surprisingly given the above, the matter came back before Hayden J on 17 April, by which agreement had been reached that:
It appears that – thankfully – the care home was, at the time of the judgment, still COVID-19 free. The judgment also shows the (understandable) impact upon BP, and others in his position, of social distancing. At paragraph 6, Hayden J noted that all agreed that “BP has struggled to cope with or understand the social distancing policy which it has been necessary to implement. FP said that she believes her father thinks that he is being punished in some way. This, to my mind, reinforces the view of Dr Brett Du Toit that BP has little insight into his own health and his dementia. It is thought that the deprivation of contact with his family has triggered a depression. BP has been prescribed anti-depressant medication.” Neither the care home nor the family had tried to instigate video conferencing, because FP had attended (it appears) daily, to sit outside the French windows of her father’s room, communicating with him as best she could. The staff at the Care Home told FP that her father derived comfort from her visits, though FP was uncertain about this herself.
At the previous hearing, Hayden J had held that the outstanding assessment of capacity (required for purposes of the s.21A application) could be completed remotely. However,
Hayden J also took the opportunity to clarify observations that he had made in his earlier judgment about derogation from the ECHR, making clear that he had intended to – and in fact – had notified the Government in order that the Government might itself might decide whether to issue a notification of derogation.
That (assuming that all goes to plan) BP will be able to move to his daughter’s care (it appears, although it is not entirely clear, in his own home) is undoubtedly hugely significant for him, although the precise basis of the arrangement is specific to the facts of his case. Of broader significance – beyond the recognition of the impact of social distancing on individuals with dementia – is the reinforcement of the message by Hayden J that assessments (of capacity, but also other relevant assessments) will have to proceed, even if by increasingly pragmatic/creative methods.