On 2 April 2020 Hayden J handed down a judgment dated 25 March 2020 in the case of BP v Surrey County council & RP  EWCOP 17 concerning the suspension of contact in a care home during the COVID-19 pandemic. This was followed by a further written judgment dated 17 April 2020 which serves to clarify the reported judgment in relation to the law of derogation: BP v Surrey County Council & RP  EWCOP 22.
Both are extremely important decisions resulting from the COVID-19 pandemic concerning, arguably, society’s most vulnerable.
Judgment dated 25 March 2020
The application concerned BP, who is 83 years old. BP was diagnosed with Alzheimer’s disease in 2018. He is deaf and communicates using a communication board. BP lacks capacity to make decisions about his accommodation and care needs. Consequently, BP was placed in SH care home, this having been authorised as a necessary and proportionate deprivation of his liberty in June 2019.
In response to COVID-19, SH care home suspended all visits from family members. Prior to this, BP received regular visits from his family including 6 visits a week from FP. BP’s deafness meant that he did not use a telephone, face time or Skype. Hayden J opined “there can be no doubt that the change to BP’s quality of life from 5 o clock on Friday 20 March 2020 was seismic”. Additionally, the restriction extended to the Mental Capacity Assessor visiting.
The application, brought on behalf of BP through his litigation friend, his daughter FP, contended that the constrictions imposed by SH care home constituted an unlawful interference with his rights under Articles 5 (right to liberty and security) and 8 (right to respect for private and family life) of the European Convention on Human Rights (“ECHR”).
FP asserted that if the restrictions imposed by the care home continued then it would be in BP’s best interest to return home with a package of care. Due to the health crisis, FP was unable to identify any package of professional support.
The Court had to grapple with whether it was in BP’s best interest to return home and into the care of his daughter in the interim, taking into consideration all of the relevant rights and freedoms.
Applicable law & rights and freedoms
The starting point is Article 5 ECHR. Article 5(1) has been interpreted by the European Court of Human Rights as imposing “positive obligations 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”. The other key convention rights are Articles 8, and 14 of the ECHR, which provides that “the rights within it shall be secured to all, without discrimination, including on the grounds of disability.”
Article 15 permits derogation from Articles 5 and 8 on certain grounds. The Court determined that the COVID-19 pandemic constituted a “public emergency, threatening the life of the nation”.
Fundamental to the Court’s consideration was Article 11 of the UN Convention of the Rights of Persons with Disabilities (‘CRPD’). Hayden J stated “the COVID-19 pandemic plainly falls within the circumstances contemplated by Article 11 and signals the obligations on the Courts, in particular, and the society more generally to hold fast to maintaining a human right based approach to people with disabilities when seeking to regulate the impact of this unprecedented public health emergency”.
Further, Hayden J also considered Article 25 of the CRPD which states that “persons with disabilities shall be provided with the same range, quality and standard of free or affordable health care and programmes as provided to other persons”. Hayden J opined that “Article 25 resonates with the fundamental principles of the Mental Capacity Act 2005. In the context of Coronavirus, the State’s obligation is to ensure equality for people with disabilities and to guard against them being inadvertently left behind by a system which deprioritises them in the urgency of a response to crisis”.
The Court also considered recent guidance from the European Committee for the Prevention of Torture which states that “restrictive measures taken vis-à-vis persons deprived of their liberty to prevent the spread of COVID-19 should have a legal basis, be necessary, proportionate, respectful of human dignity and restricted in time”.
Ultimately the Court determined, and FP acknowledged, that her proposal to single-handedly care for her father 24 hours a day was unrealistic. FP stated in evidence “the last thing he [BP] would want would be to burden her or her family”.
A plan was agreed between the parties to enable BP to have contact with family members, including through the use of Skype with the use of his communication board and for family members to go to BP’s bedroom window to wave at him.
The Court was satisfied this was a balanced and proportionate way forward which “respected BP’s dignity and keeps his particular raft of needs at the centre of the plan”.
Matters did not end there for BP, however.
Judgment dated 17 April 2019
The matter was listed for a directions hearing before Hayden J to address a number of issues. On the morning of the hearing the parties reached an agreement that BP would be able to move into his daughter’s care. The circumstances had changed since the matter was last in court.
Additionally, it was thought that the deprivation of BP’s contact with his family had triggered a depression, which had required the prescription of anti-depressant medication. There was consensus that BP had struggled to cope with or understand the social distancing policy which had been necessary as a result of COVID. FP stated that she believed her father had felt that he was being punished in some way.
Although a move into FP’s care would require assessment of BP’s needs within the home and some adjustments to his accommodation, with some debate as to how long the process would take, 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”.
Hayden J also referred to his Guidance, dated 19th March 2020, which addressed some of the concerns identified by the professions in respect of capacity assessments in light of the difficulties posed by COVID-19, and observed the reality that for the time being many, perhaps most, capacity assessments would require to be undertaken remotely. Although Hayden J noted that remote assessments were simply not ideal, with “careful and sensitive expertise” it should be possible to provide sufficient information, and that video conferencing platforms were likely to now play a part in this process as they now do in so many other spheres of life and human interaction.
Hayden J also clarified paragraph 27 of his earlier judgment and helpfully summarised the law of derogation: only a High Contracting Party, which the court is not, can derogate from the European Convention on Human Rights.
This article ‘COVID-19, care homes and contact: BP v Surrey County Council & RP’ was written by Naima Asif. To enquire about instructing Naima or any other member of our Court of Protection Team, please contact our clerking team via our switchboard on 020 7353 0711 or email: firstname.lastname@example.org