Regulating visitors to care homes due to Covid-19

This case concerned BP, an 83 year old Alzheimer’s patient who is deaf and resident in a care home.  His daughter applied to the Court of Protection for a declaration that it was in his best interests to return home with a package of support.  The application was prompted by the care home’s decision to suspend all visits from family members and other visitors as a result of the risks presented by Covid-19. 

BP ordinarily received many visits from his family and friends on a daily basis and clearly derived great benefit from that contact.  His deafness means he does not use the telephone, Facetime or Skype and so alternative methods of keeping in touch were not available to him.  

On 25 March 2020, Mr Justice Hayden considered Article 5 and 8 of the European Convention on Human Rights (which protect the rights to liberty and security and the right to private and family life respectively).  He balanced them with Article 15 (which permits derogation from Articles 5 and 8 in situations of public emergency threatening the life of the nation). 

He confirmed his view that Article 15 was engaged and went on: “The spread of this insidious viral pandemic particularly, though not uniquely, threatening to the elderly with underlying co-morbidity, establishes a solid foundation upon which a derogation becomes not merely justified but essential.”  He went on to emphasise that this derogation is to cover a limited period and stated that ”fundamental rights and freedoms require to be protected as vigilantly in times of crisis as in less challenging circumstances”. 

He referred to the Statement of Principles by the Council of Europe which emphasised that any restrictions should be necessary, proportionate and respectful of human dignity.  The obligation to consider alternatives is an imperative.  

It was emphasised that the Court was required to judge the interference with his rights and freedoms entirely from BP’s own perspective.  The Court took account of the fact that in his case, the interference with his rights was aggravated by his deafness, a separate and protected characteristic as defined in the Equality Act.

In fact, the parties managed to find some creative ways for BP to remain in the care home and for contact to be maintained by use of the communication board through BP’s window together with the exploration of instant messaging and educating BP in the use of Skype.

What is clear from the case is that although the current circumstances may provide justification for departing from Article 5 and 8 rights, this should be for a limited period, must be necessary and proportionate and alternatives should be considered. There is clearly a need for decision making in such cases to take account of a person’s individual needs and circumstances and for creative solutions to be adopted as an alternative to restrictions wherever possible.  

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