A party seeking to restrict another's commercial activities must consider whether such terms are normal in similar, factual and contractual circumstances.
The ability to die with one's family and loved ones is one of the most fundamental parts of any right to private or family life, rules Mrs Justice Lieven in the Court of Protection case concerning the best interests of AO.
AO's daughter made an application to the Court of Protection to challenge AO's deprivation of liberty in a care home, where she had resided since September 2010. AO has a diagnosis of advanced terminal ovarian cancer which had spread to her vital organs. AO was discharged from hospital on 23 March 2020 back to the care home. Due to COVID-19 restrictions, AO had had no face to face contact with her daughter since that date. AO had something between a few weeks and three to six months to live.
Since moving into the care home in September 2010, AO had spent four days every second weekend with her daughter and family. She had also spent holidays each year with them. AO is said to have been very happy when spending time with her daughter. AO had her own room in her daughter's house complete with adaptations for her. AO's daughter and her family were able to care for AO with support provided by the local CCG.
The issue for the court was whether it was in AO's best interests to reside with her family in the last period of her life, this being different to the issue in BP.
Mrs Justice Lieven said at Paragraph 28, "such a decision by the state that prevents someone with a terminal disease from living with their family, must require a particularly high degree of justification under article 8(2)."
It was held that it was in AO's best interests that's she should immediately move to live with her daughter. AO's family were not in breach of COVID-19 regulations by collecting AO from the care home as it was considered that they were providing assistance to a vulnerable person, which is considered a reasonable excuse for a person to leave their home under the regulations.
Sadly, AO died two days after moving to live with her family.
It is important to note that the decision was based on the fact that AO had terminal cancer and was going to die in a relatively short period of time, rather than the risk of COVID-19. Mrs Justice Lieven added that, "this judgment is solely about what is in AO's best interests in circumstances where she had terminal cancer and her family wanted her to die at home with them" and "Other considerations of wider public interest which might have arisen in another case were not raised in this case."
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