A common question in the current climate is whether care homes can stop visitors to their residents. Due to the current COVID-19, pandemic many care homes have imposed a blanket ban on visitors to the care home. This has meant that family and friends have been unable to visit their loved ones. This has raised questions surrounding whether this blanket restriction interferes with residents’ rights under the European Convention on Human Rights (“ECHR”), in particular Article 5, the right to liberty and security, and Article 8 which protects a person’s right to respect for their private and family life.
This question was addressed in the recent case of BP and Suffolk County Council. An urgent application was made on behalf of BP. BP is an 83-year-old man with a diagnosis of Alzheimer’s Dementia. BP is deaf but able to communication through a “communication board”. His daughter was seeking for BP to be discharged from the care home to be returned to his home with an appropriate package of support. The application was prompted by the decision from the care home to suspend all visits from family members to the care home during the pandemic. The application was made on the basis that the current visitation restrictions constituted an unlawful interference with BP’s rights, protected by Articles 5 and 8.
This matter highlighted the importance of maintaining contact between residents and the outside world. Prior to the pandemic, BP maintained a strong relationship with family and friends and had regular visitors. In the application, BP’s daughter highlighted that it would be in BP’s best interests to return to the family home with a care package as the lack of visitors he would receive in the care home would have a negative impact on his well-being.
Mr Justice Hayden, the Vice President of the Court of Protection, declared that it was in BP’s best interest to remain in residential care. However, he said that staff should be creative in their attempt to keep residents in contact with family and friends during the COVID-19 pandemic. Care home managers must make sure an elderly resident who cannot have visits because of the coronavirus crisis have “effective communication” with relatives. In this matter, the care home manager had suggested that BP might communicate via a video call or contact through a window.
This judgement highlights a number of different issues. Care homes must finely balance residents Article 5 rights with its duty to protect residents from the coronavirus. Residents can become very distressed if they stop receiving visitors and this can impact negatively on their mental health and well-being. Every effort should be made by the care home to minimise any distress that the lack of visitors may cause and to find different ways for residents to maintain contact. Mr Justice Hayden said in relation to BP:
“I want [staff] to use all the creative options at their disposal to see that there can be some kind of effective communication between him and his family”.
Different forms of contact that should be considered include telephone calls, videocalls such as via Skype, Facetime and Zoom, and if practicable distanced meeting in an outside space at the placement. The method used should be tailored towards the individual and their family. In the case of BP, BP was deaf and thus unable to communicate via telephone and videocalls.
Since the decision in BP, the government has now issued guidance on visits to care homes, stating that: “Care home providers should stop all visits to residents from friends and family.” (https://www.gov.uk/government/publications/covid-19-residential-care-supported-living-and-home-care-guidance)
However, Mr Justice Hayden’s guidance still applies. It is important that any visitation restrictions do not disproportionately interfere with residents’ Article 5 and 8 rights.
The general guidance from the CQC is that care home providers should enable a resident to see their family and friends if the resident wants to. Staff should respect residents’ relationships and give them as much privacy as possible. Despite the current climate it is still important that this guidance is followed as closely as possible.
It will assist in ensuring that residents’ Article 5 and 8 rights are protected if the care home, local authority or NHS Trust formulate a written plan around contact, in conjunction with family members, including how and when contact is to take place, and to document when contact takes place. Further, if requested and feasible, contact should continue to take place with as much privacy as possible.
The case of BP was the first reported Court of Protection matter on contact during the pandemic. It is likely that Court of Protection judges will be asked to consider similar issues in the coming weeks. As lockdown continues, the government is regularly changing its guidance, and this in turn will have an effect on how contact can be facilitated. Both care homes and family members should pay close attention to guidance in the coming weeks.
Read the full text of the BP judgment on Bailii: https://www.bailii.org/ew/cases/EWCOP/2020/17.html
Cerise White, Paralegal
Posted on Thursday, 23rd April 2020