Judge: Hayden J
Citation:  EWCOP 17
In this case, Hayden J had to grapple with the impact of COVID-19 in the care home setting. The urgent application arose in the context of an existing s.21A application challenging the DoLS authorisation to which the man in question, BP, was subject, as a result of a decision by the care home in question to suspend all visits from any family members to P and indeed to the others living in the home. The restriction also extended to any other visitors.
As Hayden J noted:
can be no doubt that the change to BP’s quality of life from 5 o’clock on Friday 20th March 2020 was seismic. Additionally, the restriction extended to the Mental Capacity Assessor visiting. Thus, there is need for heightened vigilance to ensure that BP’s fundamental rights are not eclipsed by the exigencies of the Coronavirus pandemic. Fundamental to my consideration of the issues presented by this case is Article 11 UN Convention of the Rights of Persons with Disabilities (‘CRPD’) which provides:
10. The COVID-19 pandemic plainly falls within the circumstances contemplated by Article 11 and signals the obligation on the Courts, in particular, and society more generally to hold fast to maintaining a human rights based approach to people with disabilities when seeking to regulate the impact of this unprecedented public health emergency.
The application brought was for the following:
a) A declaration that if, within 72 hours of SH Care Home being served with a copy of the relevant order it has failed to take steps to facilitate the attendance of Dr Babalola and to reinstate daily family visits to BP, then it is not in BP’s best interests to reside in the interim at SH Care Home;
b) An order that if the above has not been complied with by SH Care Home, the order dated 6 March 2020 extending the standard authorisation be revoked and the standard authorisation shall terminate at the expiry of that 72-hour period;
c) A declaration that the total ban on visits is a disproportionate interference with BP’s rights under Articles 5 and 8 (read with Article 14) of the European Convention on Human Rights;
d) An interim declaration that whilst the restrictions on visits remain in place it is in BP’s best interests to return home with a package of care.
BP, who was diagnosed with Alzheimer’s disease in December 2018 and was deaf, but able to communicate through a “communication board.” Hayden J noted that:
On the evening of 23rd March 2020, the Prime Minister announced, during the course of a public broadcast, stricter measures by the Government relating to COVID-19. The essence of the guidance is that people should stay at home, with very limited exceptions and for very tightly constrained purposes. At his age and with his underlying health problems BP is vulnerable to the most serious impact of the Coronavirus. In my view, it is necessary to state the risk BP faces, were he to contract the virus, in uncompromising terms: there would be a very real risk to his life. Manifestly, there are powerful and competing rights and interests engaged when considering this application.
Having considered decisions of the European Court of Human Rights, the statement of principle of the Council of Europe’s Committee on the Prevention of Torture relating to the treatment of individuals deprived of their liberty in consequence of the COVID-19 pandemic, and Article 25 of the CRPD (the right to health), Hayden J noted that:
The case is, in any event, listed for further directions on 3rd June 2020. Accordingly, the interim declarations relating to BP’s lack of capacity to conduct these proceedings and to make decisions concerning his residence and care remain valid. The focus of the arguments is therefore on whether it remains in BP’s best interest to stay in the care home. It is in this context that I must consider the relevant rights and freedoms that all agree are engaged.
Hayden J outlined the plans that were being developed to seek to secure continuing contact:
The plan advanced by FP [BP’s daughter] was that her father should come and live with her. She has been self-isolating so as to prepare for his return. The arrangement is that Mrs RP would move out, in light of the safeguarding concerns I have referred to above and that FP would care for her father alone. Ideally, care support would reinforce FP’s care but, all recognised that, in the present circumstances, this could not be secured. FP realistically acknowledged that her father is prone to what is termed “misadventure” and should be watched vigilantly. Though she could not quite bring herself to acknowledge it, she recognised that her offer of 24 hour per day single handed care for her father is not, in truth, a realistic option. FP said, “everyone is a loser in this situation!”. Both in and out of court, which in this case meant on or off Skype recording, efforts were made to explore the possibilities for contact. It is not necessary for me to work through them in this judgment. Their significance is that the care staff and the family, with the help of their advocates, began to absorb some of the stark realities of their present situation. A great deal of effort was made to see whether it might be possible to unlock a fire door and provide for a visit at a suitably safe distance. In the end and for a variety of reasons that was not possible. 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. It has been important to recognise that in addition to his Alzheimer’s BP’s deafness is a separate and protected characteristic, as defined in Section 148(7) of the Equality Act 2010. As such, it requires to be identified and considered as a unique facet of BP’s overall needs.
Importantly, Hayden J, reiterating guidance he had previously given on 19 March, considered that:
Accordingly, though I recognise the challenges, I consider that the outstanding assessment by Dr Babalola can be undertaken via Skype or facetime with BP being properly prepared and supported by staff and, to the extent that it is possible, by his family too.
Although the judgment does not expressly provide this, it is clear that the consequence was that the application was dismissed, although with clear judicial approval of the plan drawn up to seek to maintain as much contact as possible between BP and his family.
The outcome of the application was, not, perhaps entirely surprising, although reflective of the changes that have been wrought by COVID-19 – only a few weeks ago, a care home that sought to impose such draconian restrictions would have been the subject of fierce criticism by a court. It is perhaps important to note that the DoLS regime does not, itself, justify restrictions upon contact. The DHSC’s emergency guidance on the MCA and DoLS contains a limited discussion of isolation measures where the person is suspected of having COVID-19, but does not address the basis upon which care homes can properly seek to impose restrictions upon those in BP’s position without recourse to the Court of Protection. Such serious interferences with the right to private and family life under Article 8 ECHR will in very many cases be justified by the threat that would otherwise be posed to the lives of those within the care home, but, as Hayden J recognised, the stakes are indeed very high. As Hayden J also recognised – implicitly – that draconian restrictions upon contact can only be justified where all practicable steps are taken to secure the maintenance of such contact as can be achieved.
It is perhaps also important to highlight that at the point that Hayden J was deciding the application, the full extent of the ravages of COVID-19 within care homes had not yet become clear. It is not all obvious, one might think, that in a situation such as that of BP, the state’s obligations under Article 2 ECHR would not dictate that the DoLS authorisation be discharged and his daughter be provided with the support required to enable her to support him at her home.
 Or, indeed, another court if – as will be the case in many situations – the individual in question does not lack capacity to make decisions as to contact. The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (discussed here) do not give the power to restrict visits.