COVID-19, Care Homes and Restriction on Visitation: Updated

Care homes have increasingly become the topic of much debate in recent weeks, tragically, for all the wrong reasons. When a national lockdown was imposed by Boris Johnson on 23 March 2020, care homes across the country, took the difficult decision to suspend all outside visitors in line with Public Health England guidance. 

The case of BP v Surrey County Council & Anor [2020] EWCOP 17 saw Hayden J consider the impact of COVID-19 within the care home setting, and weigh up competing interests; from safeguarding vulnerable members of society, to protecting their ECHR and International Human Rights. 

By way of summary, P has a diagnosis of Alzheimer’s disease and is also deaf but communicates through a “communication board”. He currently resides in a care home where he has been resident since June 2019. In July 2019, P was deemed to lack capacity to make decisions about his accommodation and care needs as a result of his cognitive impairment. P’s placement at the care home was authorised as a necessary and proportionate deprivation of his liberty in August 2019. In December 2019, the Court authorised the instruction of Dr Babalola to further investigate P’s capacity. This order was extended until 3 June 2020 pursuant to an order dated 6 March 2020. In the wake of the coronavirus outbreak, a date was yet to be set for Dr Babalola to assess P’s capacity. 

At the earlier hearing, the Court was unable to accede to an application, made by the P’s daughter on an urgent basis to discharge P from the care home where he is resident during the COVID-19 crisis and a declaration that it is in his best interest to be returned to his home with an appropriate package of support. Instead, the Court decided P should remain in the care home. 

The reason behind the Court’s earlier decision, was fully explained by Hayden J:

• P’s daughters 24-hour care plan, did not identify any package of professional support, was found to be lacking and; 
• P’s wife was not in agreement with the application to move her husband from the care home. 
• It was deemed the upcoming capacity assessment could be conducted via Skype or FaceTime, and therefore not affected by the care home’s restriction on outside visitation. 

Hayden J was asked to reconsider his earlier opinion, whether P should be discharged into P’s daughters care with an appropriate package of support, on 17 April 2020 in BP v Surrey County Council & Anor [2020] EWCOP 22. 

The previous apparent barriers to discharging P to his daughter’s care, as mentioned above, had been rethought and new developments in P’s condition had to be considered.

Was it still in P’s best interests to remain isolated from his family and social network? 

Hayden J made several observations when reconsidering his earlier decision:

• Firstly, ‘in the weeks following my judgment, P’s daughter was able to visit regularly and sit outside the French windows of her father’s room, communicating with him as best she could.’ However, P had struggled to cope with or understand the social distancing policy which it has been necessary to implement and it is thought that the deprivation of contact with his family has triggered a depression. P has been prescribed anti-depressant medication. Furthermore, there had been no effort by the care home to facilitate contact via virtual means.
• Secondly, in the early days of April, P became unwell. He had not been eating, his manner had become flat and unresponsive and he was sleeping much more than usual. He had a high temperature but was not displaying any other symptoms of coronavirus. P’s daughter decided against hospital admission and P recovered in the care home days later. Hayden J acknowledged P’s daughter knows her father very well indeed and her assessment of the situation proved to be well founded.
• Thirdly, Hayden J acknowledged that P ‘has clearly and consistently expressed a wish to go home. He is a popular, sociable man who enjoyed many visits from his family before the present COVID-19 health crisis. It is clear from my reasoning in the earlier judgment that I was keen to protect BP’s autonomy and that I considered that the deprivation of his liberty in these circumstances required to be kept under constant review’.
• Lastly, on the 6^th April 2020, Dr Babalola indicated that he was not prepared to assess BP’s capacity using remote means.

The court ruled that it was in the best interests of the P to live with his daughter, subject to an assessment of P’s needs within the new premises and adjustments being made where required. 

Hayden J noted he would not set out the specific issues he had addressed as the parties were able to reach an agreement that P would be able to move to his daughter’s care. However, there appears to have been several developments, as I have noted above, which were not known issues in the earlier case. 

The earlier proposed care plan was criticised by Hayden J as unrealistic, yet revisiting this case, Hayden J noted he had been told it is possible to identify carers to assist P’s daughter to deliver the care required. This factor appears to have been crucial in this case. 

It is interesting to note that that P’s individual circumstances (close family relationships) and personal characteristics (deafness and difficulties understanding social distancing measures), alongside a restructured care plan, altered the Court’s primary decision on this issue.  

Should a similar issue arise, any decision to discharge a protected party from a care home during the current Covid-19 crises will rest on P’s individual circumstances; the availability of suitable and continuous care and may also extend to the consideration of the personal characteristics of P.

Concluding, Hayden J noted,  ‘it is ultimately a balance between a comprehensive assessment of P’s needs and a recognition that his best interests now lie in a return home as soon as possible’. 

*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*