BP v Surrey County Council & Anor [2020] EWCOP 17

An application was submitted to the Court of Protection seeking the discharge of P from his current care home, to return home with an appropriate care package. This application was initiated following the care home’s decision to suspend all external contact to the care home where P is residing. This suspension of all contact was implemented by the care home on Friday 20 March 2020 due to the Coronavirus pandemic.

P was an 83 year old man who had a diagnosis of Alzheimer’s disease and was also deaf. P was admitted to hospital on 20 June 2019 after he had become very dehydrated. He was subsequently discharged to the care home for the first time on 25 June 2019. P’s placement at the care home was authorised on 12 August 2019 as a necessary and proportionate deprivation of his liberty. The standard authorisation was due to expire on 2 February 2020 but was extended until 3 June 2020 pursuant to an order dated 6 March 2020.

The application to discharge P from the care home came after a separate application which was made pursuant to Section 21A Mental Capacity Act (MCA) 2005. Schedule A1 MCA 2005 makes provisions for Deprivation of Liberty in the context of Hospital and Care Homes. On 11 December 2019, the Court authorised the instruction of Dr Babalola further to investigate questions of P’s capacity. On 20 March 2020, the care home was closed to external visitors. The capacity assessment to date had not been undertaken but the interim declarations relating to P’s lack of capacity to conduct these proceedings and to make decisions concerning his residence and care remained valid.

Prior to the Coronavirus pandemic, P was visited regularly by his wife, daughters, son and granddaughters. Due to P’s deafness, he did not have contact with his family via the telephone, facetime or skype. The restrictions implemented by the care home on P’s visits had an enormous impact on his quality of life. P was considered to be a “family man” and benefitted from the regular contact.

This urgent application, issued on 23^rd March 2020, sought the following:

      a) A declaration that if, within 72 hours of SH Care Home being served with a copy of the relevant order it has failed to take steps to facilitate the attendance of Dr Babalola and to reinstate daily family visits to BP, then it is not in BP’s best interests to reside in the interim at SH Care Home;

      b) An order that if the above has not been complied with by SH Care Home, the order dated 6 March 2020 extending the standard authorisation be revoked and the standard authorisation shall terminate at the expiry of that 72-hour period;

      c) A declaration that the total ban on visits is a disproportionate interference with BP’s rights under Articles 5 and 8 (read with Article 14) of the European Convention on Human Rights;

      d) An interim declaration that whilst the restrictions on visits remain in place it is in BP’s best interests to return home with a package of care.

In view of this application, Hayden J took into consideration the following:

1. European Convention of Human Rights;
2. Case law including Stock v. Germany,  (Application no.61603/00), 16 June 2005, Stanev v. Bulgaria (2012) 55 EHRR 22 and Re (D) (A Child) (Residence Order: Deprivation of Liberty) (2017) EWCA Civ 1695; (2018) PTSR 179; (2018) 2 FLR 13;
3. Council of European Committee for the Prevention of Torture’s statement of Principles published on 20 March 2020;
4. Article 25 of Convention on the Rights of Persons with Disabilities (CRPD);
5. UK government guidance

Hayden J acknowledged that these restrictions had an impact on P’s article 5 (right to liberty and security) and article 8 (right to private and family life) of the European Convention on Human Rights (ECHR). However, article 15 ECHR permitted derogation from article 5 and 8 in situations of public emergency threatening the life of the nation. The Coronavirus pandemic justified the derogation.

Article 14 ECHR was also considered as this provides that the rights within it shall be secured to all, without discrimination, including on the grounds of disability. This article was important due to P’s protected characteristic, which was a unique feature of P’s needs.

The Council of Europe’s European Committee published a statement of Principles on 20 March 2020 relating to the treatment of individuals deprived of their liberty in consequence of the Coronavirus pandemic. They advised that any restrictive measures taken in relation to persons deprived of their liberty to prevent the spread of the Coronavirus should have a legal basis and be necessary, proportionate, respectful of human dignity and restricted in time.

The essence of Article 25 CRPD resonates with the fundamental principles of the MCA 2005. In the context of the 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. As mentioned above, P’s deafness was a protected characteristic.

P’s daughter acknowledged that her offer to provide 24-hour care everyday was not a realistic option. As such, it was decided that it would be in P’s best interests to remain living in the care home. A creative plan was devised which permitted the education of skype and instant messaging with use of his communication board to have contact with the family. The family could also wave through the window of P’s ground floor room.

It was also ordered that the outstanding assessment by Dr Babalola could be undertaken by sky or facetime with P.