Background
BP is an 83-year-old gentleman diagnosed with Alzheimer’s disease. He is deaf but communicates via a communication board. He resides in a care home and usually receives a high frequency of visits from family and friends. The Covid-19 pandemic resulted in the suspension of all visits from family and friends. Though the care home had introduced the use of telephone, FaceTime and Skype contact for its residents, BP could not use these forms of contact due to his deafness and was, therefore, severely disadvantaged by the visitation suspension. BP’s deafness is a protected characteristic and a unique factor of his overall needs.
BP’s matter was already before the Court of Protection, and an urgent application was made to consider whether, in the context of the new restrictions, it would be in his best interests to be discharged from the care home to reside with his daughter at her home.
Both Article 5 and Article 8 of the European Convention of Human Rights (ECHR) were engaged; BP’s right to liberty and family life were clearly affected. Hayden J held that “there can be no doubt that the change to BP’s quality of life… was seismic”. The State’s obligation is to ensure equality for people with disabilities and to guard against them being inadvertently left behind by a system that deprioritises them in the urgency of a response to a crisis.
However, Article 15 of the ECHR permits derogation from Articles 5 and 8 in situations of public emergency that threaten the life of the nation. Hayden J held that “it requires powerful reasons to justify any derogation.”
It was accepted that the current pandemic amounts to a public emergency threatening the life of the nation as set out in Article 15, and the nature of the virus at the root of the crisis, which is particularly threatening to the elderly and those with underlying health conditions, meant that the derogation from Articles 5 and 8 of the ECHR was not only justified but essential in this case. Due to BP’s age and underlying health problems, he is particularly vulnerable to the impact of Covid-19 and were he to contract the virus, there would be a very real risk to his life.
Hayden J recognised the “striking enormity” of the decision to derogate from Article 5 and 8, emphasising that it was not something he or any other member of the judiciary thought they would ever have to do.
In determining BP’s application for a declaration that it was in his best interests to reside with his daughter at her home, the Court considered his daughter’s proposal that she would provide 24-hour, single-handed care to her father at home. However, it was ultimately decided that this was not a realistic option. It was held that BP should remain living at the care home with a creative plan agreed for contact, including BP being taught to use Skype, exploration of instant messaging, and arrangements for his family to wave at him through his ground-floor window and use of his communication board.
Comment
The decision in BP confirms that it is lawful for care homes to suspend visits to their residents to protect them from the risks of Covid-19.
These measures are likely to be incredibly upsetting to everyone affected by restrictions to visitation at care homes during this stressful and turbulent time.
Care homes are obliged to consider alternative forms of contact and take a balanced and proportionate approach that factors in the specific needs of each resident. It is important to consider how disabled individuals might be placed at a particular disadvantage where blanket bans on contact are imposed. Care homes are urged to think both creatively and pragmatically as to how contact can be facilitated to ensure no resident is left behind.
It is worth noting that a ban on contact will not usually amount to a Deprivation of Liberty that requires a standard authorisation granted by a local authority or a Court, it is simply a restriction on liberty.
Should you have any concerns about a loved ones deprivation of liberty in a care home or restrictions on contact, please contact Rebekah Sambrooks or Kirsty MacMillan from our Court of Protection health and welfare team.
Care providers seeking advice should contact Tim Coolican from our Regulatory Team.
Happy New Year - our first newsletter of 2021! Throughout this year we will continue to bring you news and developments relating to the charities sector.
Local authorities should be wary of reserving contracts for local suppliers, as recommended by Procurement Policy Note (PPN) 11/20. Other contracting authorities may want to maximise their use of this
Most housing practitioners have perhaps been waiting for this news since the latest lockdown was announced by the Prime Minister on 4 January 2021.
Climate change and biodiversity is an area where significantly faster changes are needed on a global and local basis.
Chris Lloyd Smith, Adrian Leonard and Lisa Whitehouse discuss the planning opportunities available to owners of businesses and how to prepare for unforeseen events.
In their 3rd podcast of the series, Chris Lloyd-Smith and Maria Ramon discuss a number of problems with and difficulties that can arise in mediation and the mechanisms they use to overcome them.
Our previous round-up began by sharing the news that two vaccines had shown very promising test results. Here we are, not even a month later, and the first vaccines have already been administered!
The Covid-19 crisis has demonstrated that there is great resilience and innovation in the housing sector across Greater Manchester, it has also brought shortfalls and other priorities sharply into foc
For part 5 in this series of short podcasts, Chris Lloyd-Smith interviews associate Kadie Bennett on how she has been coping during these unprecedented times.
The first report of Donna Ockenden and her team into the review of maternity services at The Shrewsbury and Telford Hospital NHS Trust has been published today.
To receive invitations to our events, as well as information and articles on legal issues and sector developments that are of interest to you, please sign up to Newsroom.