26 May, 2020
The Court of Protection has recently been faced with this issue in the matter of BP v Surrey County council & RP  EWCOP 17.
It is undoubtedly widely accepted that the restrictions imposed by the Government on 23 March 2020 as a response to Covid-19 have had an impact on everybody's freedom, not least those residents within care homes who are no longer able to have the same level of contact with their family.
There are two Human Rights that have arguable been most affected; the right to liberty and security and the right to respect for private and family life (Articles 5 and 8 of the European Convention on Human Rights "ECHR").
Article 5 ECHR imposes a "positive obligation to put in place measures providing effective protection of persons at risk, including reasonable steps to prevent a deprivation of liberty of which the authorities have or ought to have knowledge" (Hayden J at Paragraph 14 of BP v Surrey County Council & RP)
Article 8's requirement to provide "respect" has reinforced the positive obligations on the state, rather than simply requiring them to refrain from interfering with the right to private and family life. It is no surprise then that there are increasing attempts to widen Article 8's remit to social and economic claims on individual's welfare.
Now you might be wondering how the Government has even been able to impose such restrictions that it has. However, Article 15 ECHR allows for derogation from the aforementioned rights in times of public emergency that threatens the life of any nation. It cannot be doubted that Covid-19 falls within this classification.
But how does this all affect society's most vulnerable; those in care homes with disabilities, dementia, or additional needs?
The Court has handed down two Judgments in BP v Surrey County Council & RP; one on 25 March 2020 and the other on 17 April 2020.
BP is an 83-year-old resident in a care home, who was diagnosed with Alzheimer's disease in 2018. In addition to suffering with this disease, he is deaf and communicates with his family and care workers through the use of a communications board. BP's deprivation of liberty was authorised in June 2019 as a result of his lack of capacity.
Like many care homes, BP's home suspended all visits from family members as a result of the risks posed by Covid-19. BP enjoyed regular visits from family members and friends; his son visited 4 times a week, granddaughter every Wednesday, and FP, his daughter, visited him 6 days a week since he was admitted in June 2019. It is noted within the Judgment at paragraph 8 that BP is "self-evidently a popular and much-loved man".
It should also be noted that the restriction extended to the Mental Capacity Assessor visiting too and the Court acknowledged that there was a "need for heightened vigilance to ensure that BP's fundamental rights are not eclipsed by the exigencies of the coronavirus pandemic" (paragraph 9 of the Judgment).
FP acted as BP's litigation friend and argued that the suspension of contact constituted an unlawful interference with BP's Article 5 and Article 8 rights. Her view was that BP's interests would be best met if he were permitted to return home to her care, with a package of support provided
BP's family was unable to identify an available or suitable package of support, and FP, "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" as at paragraph 36 of the Judgment.
A plan was agreed, in the 25 March 2020 decision, for BP to have contact with his family through Skype, with the use of the communication board. The family were also able to wave at BP through his bedroom window.
Hayden J acknowledged at Paragraph 36 "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".
Within a matter of weeks BP's circumstances had changed. BP suffered as a result of the change in contact with family; he was in a depression and was prescribed medication, and he struggled to understand the social distancing policy to the extent it appeared he felt he was being punished.
It was therefore agreed by the parties that BP would move out of the home and live with FP. A Judgment was handed down on 17 April to this effect.
Hayden J held that it was 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".
These Court decisions show that the best interests of individuals can change rapidly and care homes need to be constantly reviewing what is in the best interests of each of their residents. This undoubtedly must come down to each resident's individual needs. Indeed, it was noted that BP's deafness is a separate characteristic from his Alzheimer's and was to be considered as a "unique facet" of BP's overall needs.
The care home needs to be mindful of the ever-changing needs of their residents, engage with the resident's family and work together to formulate a plan. In short there is no "right answer" as to what care homes should do; it is a balancing act and both families and staff are making their way through obstacles they could never have predicted facing in the past.