Living through a pandemic is challenging enough, but living through a pandemic in a care home has been a truly brutal experience for both the residents and their families. The agonising balance that has had to be struck between trying to save lives and also preserve some of the things that make life worth living has led to some of the most difficult decisions of the epidemic. Nowhere is this dilemma more acute than on the question of contact between those in care homes and their loved ones.
The ongoing case of Michelle Davies shines a spotlight on the Court of Protection’s approach to this.
The case is a challenge by the family of D under the Mental Capacity Act to the deprivation of liberty of D by the care home. D is a 58-year-old woman who suffered a serious brain injury leading to her requiring full time care. At the beginning of the pandemic she was living in a rehabilitation unit which initially permitted video calls only but then allowed socially distanced visits before re-instating four video calls per week. Proceedings were brought over a concern that these severe restrictions undermined the best interests test which must be fulfilled to justify the continued deprivation of liberty. D moved to another care home which permitted window visits which the family wanted to continue.
Mr Justice Hayden made an interim order at an initial hearing, so the matter has not yet been finally resolved, but in that decision he ordered the window visits to continue until the matter came before the court again. He emphasised that even in a pandemic it is essential to treat each person as an individual and when weighing up decisions the wider public good must be factored against the needs of the individual.
In this case, there was evidence that the window visits benefitted D and also helped the care home in that D’s family could pass on information to the staff about what had been learned in her previous care home.
Comment
The whole ethos of the Mental Capacity Act is focused on enabling individuals to make decisions where possible, and when they cannot to ensure that their rights and needs are protected. It is therefore not surprising that even in the most challenging situations the court will aim to ensure that every person is treated individually, care home residents are not a homogenous group and should not be treated as such. The challenge, of course, for those providing the care is trying to deliver that personalised care in an age of rigid rules and regulations, the breaching of which can have significant financial and reputational consequences for care homes providers.
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