Covid-19 establishes a solid foundation on which a derogation from Articles 5 and 8 is essential, says Hayden J in the case of BP v Surrey County Council and another [2020] EWCOP 17.

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.

Further information 

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.