The Court of Protection has again considered the case of BP, an 83-year-old deaf gentleman living in a care home. The first decision was given on 25th March and was the first time that the Court of Protection has had to consider the impact of the COVID-19 pandemic on care homes and their residents.

At that time, the judge decided that it was not in BP’s best interests to leave the care home and live with his daughter. This was because, due to the pandemic, his daughter had been unable to source a package of care from an agency to support her, and the judge felt that she would not have been able to sustain caring for him for any length of time. BP’s wife was also opposed to BP leaving the care home, thinking that this would place an 'unsupportable burden' on her daughter and that she was concerned for the welfare of both her husband and her daughter if he were to leave the care home.

However, while the judge concluded that it was not in BP’s best interests to leave the care home, he did recognise the importance of continued communication between BP and his family, as he would ordinarily receive several visits a week from them. The judge encouraged creative means of communication – such as educating BP in using Skype, and also his family visiting and communicating with him through his bedroom window, as this was on the ground floor.

Since this decision, BP’s daughter was able to visit regularly and sit outside the French windows of his bedroom and communicate with him as best as she could. The care home staff told his daughter that he took comfort from the visits, but she was not sure of this. His daughter also said that no video calls had been attempted with BP. However, it was understood that neither the family nor the care home had tried to arrange this, given that he was having daily visits at his window.

It was accepted that BP struggled to cope with or understand the social distancing policy put in place by the care home, and his daughter believed that he thought he was being punished. Sadly, it is thought that the reduction in contact with his family caused BP to develop depression, and he was prescribed anti-depression medication.

BP also became unwell at the beginning of April – he had a high temperature but no other symptoms of COVID-19. An ambulance was called and consideration was given as to whether BP should be admitted to hospital. His daughter ultimately decided that he should stay at the care home and be closely monitored rather than be admitted to hospital where his health may be at greater risk. The court recognised that this must have been a tough decision for his daughter to make. Within a few days, BP’s temperature returned to normal, and he has not developed any other symptoms. There have been no other cases of coronavirus in the care home.

The case was listed to come back to court on 17th April for the judge to address several issues. However, the judge did not have to decide whether it was in BP’s best interests to return home, as the parties were able to agree on the morning of the hearing that BP could move to live with his daughter. Importantly, carers had now been identified that could support BP’s daughter in providing care.

At the previous hearing, the judge had also held that an outstanding capacity assessment should go ahead remotely. The doctor indicated that he was not prepared to carry out the capacity assessment by remote means. In this judgment, the judge reiterates the guidance that he issued around remote assessments and states that ‘there is simply no alternative’ although it is undesirable to carry out capacity assessments in this way. The judge goes on to say that 'creative use of the limited options' should be explored, such as using carers that BP knows well and is comfortable with, or family members, to facilitate the assessment.

This case recognises how social distancing can have such a massive impact on people with dementia and shows the importance of monitoring this impact, and whether alternative means of communication are a suitable substitute for people.

Even though BP’s daughter was still visiting him and communicating as best as she could, it was not the same as the visits BP had been used to. As he struggled to understand the purpose of the social distancing policy, BP felt that the lack of visits from his family were a punishment, and it is thought that this caused him to develop depression.

As the number of deaths in care homes due to COVID-19 start to be reported and commentary suggests that alternative options to care homes should be considered where this is possible, this case highlights factors that will be important when making a best interests decision – the views of BP, how social distancing and limited forms of family contact is impacting them, the family/informal support available and whether packages of care can be sought to ensure that BP’s needs can be met and their safety maintained.