Coronavirus, contact, creativity and the CoP

On 2 April 2020, Hayden J published a judgment following a Skype hearing in the Court of Protection ("CoP") about contact with a person in a care home in the time of coronavirus.

The take-away lesson? Local authorities and care homes should communicate with residents and their families to find creative solutions to maintain meaningful contact.

The facts of BP v Surrey County Council & RP  

BP is an 83-year-old man who is Deaf and uses a communication board. He lacks capacity to decide on residence and care. He lives in a care home. In response to the coronavirus pandemic, on 20 March 2020 the care home banned all visitors.

Going to court on BP’s behalf, his daughter argued that the ban constituted an unlawful interference with BP’s rights, guaranteed by Articles 5 (right to liberty) and 8 (right to respect for private and family life) of the European Convention on Human Rights (“ECHR”). She said if the ban persisted, she would rather he moved into her house.

Pre-coronavirus, his daughter visited BP six days a week, his son four times a week and his granddaughters once a week. BP’s wife visited three times per week and BP’s other daughter at least once per month. He had visits from his extended family and friends. Touchingly, Hayden J observed that, “BP is self-evidently a popular and much-loved man”.

Being Deaf, BP does not use a telephone, FaceTime or Skype. The ban on visits has therefore resulted in a “seismic” change to BP’s quality of life.

Hayden J cited the following international human rights standards

• Article 11 of the UN Convention of the Rights of Persons with Disabilities (“CRPD”) provides that rights persist through “situations of risk, including situations of armed conflict, humanitarian emergencies and the occurrence of natural disasters.” BP, as a Deaf person, is per Article 1 of the CRPD a “person with disabilities” who has rights under the CRPD.
• Article 25 of the CRPD sets out the right to health of persons with disabilities including “the same range, quality and standard of free or affordable health care and programmes as provided to other persons”.
•  Recent guidance from the European Committee for the Prevention of Torture says that, “restrictive measures taken vis-à-vis persons deprived of their liberty to prevent the spread of COVID-19 should have a legal basis and be necessary, proportionate, respectful of human dignity and restricted in time.”

The court also cited the government’s guidelines for care homes, which at that time had not envisioned visiting bans. (The current version states starkly that, “Care home providers should stop all visits to residents from friends and family.”)

BP’s daughter told the court that she wanted her father to stay in the care home with some arrangements put in place for contact with her and his family, and in the alternative that he should live at home with her. The evidence was that BP’s wife had been to the care home and waved to him through the window, which may be confusing to him as he could likely not fully understand the reach and impact of coronavirus. In the end, Hayden J found that living with the daughter was unrealistic. 

Likely thanks to facilitation on Skype by the judge, the parties agreed that contact should take place as follows:

• training for BP on Skype with creative use of a communication board and the exploration of concurrent instant messaging;
• the family to go to BP’s bedroom window which is on the ground floor and wave to him and use the communication board;  
• to achieve this, “time, effort and some creativity” will be necessary.

Hayden J described the contact plan as “a balanced and proportionate way forward which respects BP’s dignity and keeps his particular raft of needs at the centre of the plan”.

Why is this case important? 

Care homes and mental health units across the country have suddenly put in place blanket bans on visitors, per the government guidance. From what I have been hearing from NGOs, at the same time as stopping visits many care home and hospital managers also seem to have stopped thinking creatively to arrange contact. This is not surprising, for panic and fear are enemies of innovation. 

Echoing statements by several international human rights bodies, Hayden J made the important observation that, 

“In the context of Coronavirus, the State's obligation is 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.” 

How is the CoP stepping up as an enhanced safeguard? 

Not only were BP’s relatives banned, but the local advocacy service too. This feature of the case caused Hayden J to exercise “heightened vigilance to ensure that BP's fundamental rights are not eclipsed by the exigencies of the Coronavirus pandemic”. The Court of Protection is stepping up as a real safeguard.

Who can apply to the CoP to challenge coronavirus contact restrictions? 

Hayden J emphasised that BP’s daughter’s application to the Court of Protection was properly brought. She was a perfectly good litigation friend on behalf of her father. This is helpful guidance for solicitors who are approached by family members in appropriate cases to make an application without the need to engage the services of the Official Solicitor.

How should local authorities and care homes arrange contact in the time of coronavirus? 

By the time BP’s case appeared on Hayden J’s Skype account, it seems that Surrey County Council were already taking a sensible approach. We do not know what pre-litigation discussions happened. The judgment is couched in very polite terms. But clearly, this case should be a cautionary tale for local authorities, care homes and hospitals. It serves as a reminder to take a reasonable, proportionate and creative approach to contact before litigation becomes necessary.

How can visiting bans be challenged? 

As is well-known, the Court of Protection makes decisions under the Mental Capacity Act 2005. It must also take into consideration ECHR rights. In this context, the most important right is Article 8 which sets out a right to respect for private and family life. Restricting contact engages Article 8. Restrictions may be justified under “the protection of health or morals, or for the protection of the rights and freedoms of others”: Article 8(2). The protection of the health of residents/patients by seeking to prevent them from contracting coronavirus is the aim and it is clearly a legitimate aim. However, is a ban on visits necessary in a democratic society and is it a proportionate way to achieve that aim? 

Before answering that question let’s look at the Equality Act 2010, which Hayden J mentioned in passing in the BP judgment This legislation is key to challenging blanket bans, which inevitably do not take into consideration the impact on disabled people. Bans may fall foul of section 19 Equality Act 2010 which guards against indirect discrimination. This occurs when an apparently neutral provision, criterion or practice (in this case, a ban on all visitors) puts a disabled person at a particular disadvantage. 

Relevant examples of disadvantage are:

• a person with autism who requires a routine of face-to-face contact with a certain person at a certain time of a certain day;
• a person with learning disability who engages in self-injurious behaviour if restricted from seeing family (this ‘challenging behaviour’ may be met with sedatives, restraint and seclusion, which causes trauma and the cycle continues…);
• a person with dementia relies on regular contact with a family member for their routine;
• a person who uses non-verbal communication requires regular assurance by their visiting parents.

A care home or hospital would need to show that a blanket ban is a proportionate way of achieving a legitimate aim. As noted, the aim of preventing residents and staff from contracting coronavirus would almost certainly be a legitimate aim.

However, a blanket ban on visitors may not be a proportionate way of achieving that aim, because there are creative actions that a care home or hospital can take to achieve the aim without causing the unwanted side effects. Illustrative actions that could achieve the aim include: 

• enabling family and friends to have face-to-face contact in the institution’s grounds and keeping a distance, so as to reduce the risk of infection;
• contact through the window, as in BP’s case;
• contact with the disabled person in a car, whereby they are driven to see family or friends, and a conversation can happen at a distance;
• moving the disabled person to the family home with a package of care on an interim basis;
• encouraging relatives to send parcels, photographs and so on to the disabled person (upon receipt, such items may have to be disinfected);
• facilitating regular contact via video conferencing such as on Skype, Facetime, Messenger (with funny filters!), Teams, Zoom etc;
• I would argue that the positive duties to promote Article 8 rights would go so far in some cases to require the local authority or detaining Trust to buy a suitable device for the disabled resident/patient and, if they could not afford such a device, for the person the disabled person wants to have contact with too.

Further resources 

I have written a blog “Coronavirus, disability and international human rights” which I update when a relevant statement or piece of guidance is published.

A number of us are members of the Challenging Behaviour Foundation’s legal panel, a small group of lawyers and barristers who help the charity with legal queries from families on a voluntary basis. The CBF provides support to families of people with severe learning disabilities and behaviours that challenge. The legal panel is currently working on a FAQs about key legal questions related to the Coronavirus pandemic including information about bans on visits. The FAQs will be available on the CBF website in the next week or so. If you are a family member with a legal query you want the CBF to pass on, please email them.