Readers will be glad to hear, with a collective sigh of relief, that this article does not purport to be further ‘guidance’ on the current situation. We are all thoroughly full to the brim with guidance. I simply hope this can help to illustrate one early example of the court’s decisions which consider best interest decision making where the restrictions which Covid has necessitate are in play.
The Vice President of the Court of Protection, Hayden J, has had opportunity on two occasions to visit the issue in the case of BP (BP v Surrey County Council  EWCOP 17; BP v Surrey County Council  EWCOP 22). The case was heard on two separate occasions, one at the end of March and again towards the middle of April.
BP is a man of 83 years and who suffers with Alzheimers. He is also deaf, which impedes his ability to communicate although, with the assistance of a communication board, he is able to do so. He has a loving family, and he is evidently a popular and well-loved man. In June 2019, his circumstances necessitated him moving to a care home. All agree he has been well cared for by the care home. Whilst staying at the care home, BP was lucky to have many visitors from his family and friends. It was a significant part of his routine, and he clearly cherished seeing his family. His daughter described that to BP “family was everything”.
As is the case with so many people in both the Court of Protection and the Family Courts, the pandemic led to a seismic shift in BP’s ability to see his family and friends. The care home took the decision early on, in common with most others, that they would not allow any visits to the home. This included some medical staff and, relevant to the present case, a psychiatrist instructed to assess BP’s capacity to decide on his residence.
BP’s daughter applied for declarations, in summary, that the care home must reinstate daily visits for the family, failing which BP should move to live with her with a package of care. She also sought declarations that the restrictions imposed by the care home amounted to an unlawful interference with BP’s Article 5 and 8 rights.
The first reported hearing took place on 25 March 2020, in the early days of the pandemic. Hayden J surveyed the relevant legal provisions, including both the ECHR and authorities, and the UN Convention of the Rights of Persons with Disabilities (“CRPD”).
He drew attention to the Statement of Principle by Council of Europe’s relevant committee, and in particular that:
“(4) Any restrictive measures taken vis-a-vis persons deprived of their liberty to prevent the spread of COVID-10 should have a legal basis and be necessary, proportionate respectful of human dignity and restricted in time. Persons deprived of their liberty should receive comprehensive information, in a language they understand, about any such measures.
(5) As close personal contact encourages the spread of the virus, concerted efforts should be made by all relevant authorities to resort to alternatives to deprivation of liberty. Such an approach is imperative, in particular, in situations of overcrowding…” (my emphasis added).
Hayden J. also considered the provisions of Article 15 ECHR which allows for derogation of articles 5 and 8 in “times of public emergency threatening the life of the nation”. On the question of whether the derogation provisions apply, he concluded strikingly:
“It strikes me as redundant of any contrary argument that we are facing “a public emergency” which is “threatening the life of the nation”, to use the phraseology of Article 15. That is not a sentence that I or any other judge of my generation would ever have anticipated writing. The enormity of it has caused me to reflect, at considerable length, before committing it to print”.
Having considered those provisions, Hayden J concluded that it was in BP’s best interest to remain where he was, in the care home. Part of that was driven by the fact that the arrangements for BP to return home were impractical: in particular his daughter could not provide him with the constant supervision he would require and there were no carers able to provide that. Some practical arrangements had been made to allow his daughter to see BP, albeit that she still could not be permitted entry and the arrangements required her to sit by BP’s window.
Hayden J emphasised that Article 5 protected not just the right to liberty, but also security which must be engaged in respect of a vulnerable person in the current circumstances. The interference with BP’s article 8 rights was exacerbated by the fact that he was deaf which restricted his ability to use alternative methods of contact include video calling. Nevertheless, both the deprivation of his liberty and the interference with his article 8 rights were necessary and proportionate.
The final point of importance which arises from the cases is the process of undertaking capacity assessments. Hayden J considered that, despite the difficulties with BP’s ability to communicate orally and requiring the communication board, it would be appropriate for the assessment to be completed remotely, relying on his Guidance which he had provided only days before.
The case was restored to court for hearing on 17 April 2020 with a judgment being handed down on 29 April 2020. The situation had developed during that short time.
BP had suffered some ill health, but fortunately had recovered. Significantly, the impact on BP of his inability to see his family had been profound. He struggled to understand the need for social distancing and the restrictions on visiting, and thought he was being punished. It was thought that this had triggered a depression.
The parties had agreed, by the time the matter was before the judge, that it was in BP’s best interest to move to live with his daughter, with a package of carers to assist her.
The final point of note, was that the identified psychiatrist had refused to complete the capacity assessment using remote means. Whilst making no criticism, Hayden J re-emphasised the point that he considers most capacity hearings will have to be conducted remotely in the present circumstances.
This is not a case which sets out any groundbreaking advancement in law, but it does highlight the practical considerations on the ground. Ultimately, we must all remember that in these cases we are dealing with people, who have frailties. There can be no ‘one size fits all’ model, and parties must be creative to ensure the needs of the individual concerned are met. Unfortunately, BP was unable to comprehend the reasons for restrictions which has led him to become depressed. The court, and practitioners, must be astute to consider developing circumstances and be willing to change their mind. These are uncertain times for all, but the difficulties we are all feeling must be exacerbated fr those who struggle to understand the reasons.
With the benefit of hindsight it is clear that the initial decision, that BP should remain in the care home, was not the right one. One of the difficulties had been that there were no carers who could provide support to BP. One speculates whether greater efforts could have been made at that earlier stage to find those carers.
In respect of capacity assessments, the case highlights that remote assessments will not always be appropriate. I would suggest practitioners remain astute to the inherent difficulties that remote assessments must entail: it is difficult enough to assess capacity if the person may have borderline, or fluctuating capacity; the nuance of conversation and understanding could be completely lost in discussion over video (particularly as here with a person who communicates other than orally). We must all be willing to identify when that may be the case. Practitioners must bear firmly in mind the principle of the MCA that a person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success. We have had an overwhelming amount of guidance in recent times, but we must not let guidelines be so rigorously applied that they lead to unfair results. Let them not become tramlines.