BP v Surrey County Council

The facts of the case

The urgent application was brought as part of an existing s21a challenge on behalf of BP, after the care home he was in suspended all visits from family members, and professionals, due to COVID-19.

Before moving to the care home, BP had been living with his wife, but he started to become physically and verbally aggressive towards her due to a deterioration in his condition – he has Alzheimer’s.

BP became ill, and on discharge from hospital was moved to the care home. He “resents” living at the care home and has “consistently” expressed a wish to return home.

BP is deaf but can communicate with a communication board. Before the restrictions were put in place by the care home, BP enjoyed regular visits from his family; his daughter visits six days a week, his son visits four times a week with BP’s granddaughters every Wednesday. His wife visits three times a week, his other daughter visits at least once a month, and he also has visits from extended family and friends.

It was recognised that as BP is deaf, alternative communication methods such as using the phone or Skype were limited, and that the restrictions put in place by the care home require the court to re-evaluate whether it is in BP’s best interests to stay in the care home.

The family were divided as to whether BP should remain at the care home, or return home with a package of care. BP’s daughter, who was acting as his litigation friend, felt that his needs were being met at the care home and it was her preference that he stay there, but with arrangements put in place for him to have contact with his family, as “family is everything to him”. If this was not possible however, his daughter wanted him to come home, where she would provide 24-hour care for him. His wife would move out to protect against safeguarding concerns.

The Law

Judge Hayden considered Articles 5, 8 and 14 of the Human Rights Act, as well as Article 15 which allows a derogation (relaxation of duties) under Articles 5 and 8 in times of public emergency which threaten the life of the nation “to the extent strictly required” by that situation. It also requires that the Council of Europe be kept informed of any measures taken and why.

He also considered Article 11 of the UNCRPD – the state should take all necessary measures to ensure the protection and safety of people with disabilities in times of emergency – and Article 25 – the state has 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”.

Judge Hayden also considered the Statement of Principles published by the Council of Europe’s European Committee for the Prevention of Torture, which says that any restrictive measures should be necessary, proportionate and respectful of human dignity.

Decision

Judge Hayden states “It strikes me as redundant of any contrary argument that we are facing" a public emergency" which is "threatening the life of the nation", to use the phraseology of Article 15”. He notes that BP is in the group most vulnerable to the virus and that there would be a real risk to his life should he contract it.

He goes on to say that Article 5 requires very powerful reasons to justify any relaxation of the duties under it, but that "the spread of this insidious viral pandemic particularly, though not uniquely, threatening to the elderly with underlying comorbidity, establishes a solid foundation upon which a derogation becomes not merely justified but essential”.

Although the wording of the judgment does not explicitly state this, it is clear from the discussions that this urgent application is dismissed (further hearings will take place due to this being an ongoing challenge, and this is referenced).

Though she struggled to acknowledge it, BP’s daughter did recognise that her offer to provide 24-hour care for her father was not truly a “realistic option”. If additional care could be sourced to support her, this would have helped, but it was accepted by the court that this could not be secured at the present time. BP’s daughter said that “everyone is a loser in this situation”.

Judge Hayden also asked BP’s daughter what she thought her father would want if he were to look at the situation having capacity; she said that the last thing he would want would be to burden her and the rest of his family.

The judge spoke about efforts that had been made outside of the court hearing to come up with a plan to enable communication between BP and his family. The plan that was put together, and it seems the judge approves of, was to educate BP in using Skype so that he could use his communication board via this and also use instant messaging. As BP’s bedroom is on the ground floor, his family could also visit his window, which he could use his communication board through.

As DoLS itself does not permit restricting contact, it is hoped that guidance on COVID-19 and DoLS will clarify what restrictions a care home can place on visitors without needing to apply to Court of Protection – the current legislation passed does not permit a restriction on visits.

However, it seems that interference with Article 8 rights will possibly be justified on the basis that there is a very real threat to the lives of those living in the care home, but only where steps are taken to maintain contact.

Hopefully there will be some guidance out soon about how DOLS will continue to work, which will hopefully clarify what restrictions care homes can set and what they should be doing to promote the rights of their residents when restrictions are in place.