BP v Surrey County Council & Anor (2)
Summary
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:
- were fundamental difficulties with FP's plan. FP had been unable, due to the present health crisis, to identify any package of professional support. BP's lack of understanding of his own health issues occasionally causes him to overestimate his practical abilities and, as such, puts him in physical danger. Plainly FP would not have been able to care for and supervise her father in such circumstances for any length of time. BP's wife, Mrs RP, did not, at that stage, support the plan.
- BP would be able to move to his daughter's care. This will require assessment of BP's needs within his home and some adjustments to his accommodation. I have been told that it has been possible to identify carers who will assist FP. There was some debate as to how long this process would take but it is ultimately a balance between a comprehensive assessment of BP's needs and a recognition that his best interests now lie in a return home as soon as possible.
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,
- On the 6th April 2020, Dr Babalola indicated that he was not prepared to assess BP's capacity using remote means. The challenges presented by the potential arrangements are self-evident and I entirely understand why Dr Babalola felt uncomfortable. The Care Home was not prepared to accede to Dr Babalola's suggestion that he attend and wear suitably protective clothing. I make no criticism of that decision indeed, it strikes me as entirely appropriate. The Care Home has remained Covid free (in so far as it is possible to be sure) thus, the risk was not to Dr Babalola from the residents but the risk he might have presented to them. In my Guidance, dated 19th March 2020, I addressed some of the concerns identified by the professions and observed the reality that for the time being many, perhaps most, capacity assessments would require to be undertaken remotely. I stated, "there is simply no alternative to this, though its general undesirability is manifest". I further emphasised that with "careful and sensitive expertise" it should be possible to provide sufficient information. I specifically contemplated that video conferencing platforms were likely to play a part in this process as they now do in so many other spheres of life and human interaction. If BP had remained at the home it would have been necessary to instruct a different assessor. I remain of the view that creative use of the limited options available can deliver the information required to determine questions of capacity. It may be that experienced carers well known to P and with whom P is comfortable can play a part in facilitating the assessment. Family members may also play a significant role in the process. I am aware that in many areas of the country innovative and productive approaches of this kind are proving to be extremely effective.
Comment
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.