A recent Court of Protection decision, BP v Surrey County Council & Anor  EWCOP 17, highlights the difficulties now arising due the Coronavirus pandemic in maintaining contact with our family and friends, especially keeping in touch with those living in care homes. Many care homes have now imposed restrictions on visitors, including stopping close family members physically seeing their loved ones. In a recent case, Mr Justice Hayden, had to weigh up whether it was in the resident’s best interests to remain at the care home or return home with a designated care package.
Although this case relies on the Court of Protection to decide the care arrangements and best interests for the resident, having a registered Health and Welfare Lasting Power of Attorney (LPA) could avoid the need to involve the Court should you become unable to make your own decisions.
What happened in this case?
The care home resident at the heart of the case is 83, had lived there since June 2019 and had been diagnosed with Alzheimer’s. He is also deaf and uses a communication board. Therefore, the case stressed his (BP’s) vulnerability to COVID-19 like many others needing care.
Further, he does not use the telephone, Skype or Facetime which has made staying in touch more difficult. Family and friends visit him, often daily. However, since the contact restrictions were imposed by the care home, this has not been possible. The family were concerned that he does not fully understand the impact of Coronavirus and would find the lack of visitors upsetting. They were divided as to what his best interests are at present concerning his care.
The application to the Court related to an existing Deprivation of Liberty (DoLs) under section 21A of the Mental Capacity Act, where a Doctor had been instructed to investigate his capacity. Due to the care home’s contact restrictions, the Doctor couldn’t visit him to make the required assessment.
In coming to a decision, Mr Justice Hayden considered several key pieces of legislation, cases and recently published guidance. He confirmed that the Coronavirus pandemic ‘plainly falls within the circumstances contemplated’ in Article 11 of the Convention on the Rights of Persons with Disabilities (CPRD), concerning situations of risk and humanitarian emergencies and provides that “all necessary measures [must be taken] to ensure the protection and safety of persons with disabilities in situations of risk”.
Article 8 of the European Convention on Human Rights (ECHR) (right to private and family life) and Article 5 (right to security and liberty) were both considered and read in conjunction with Article 14, which provides that the Convention rights are secured to all without discrimination. Mr Justice Hayden also noted that Article 15 ECHR allows derogation from Articles 8 and 5 in a public emergency that threatens the life of the nation.
Given the current circumstances, Mr Justice Hayden found that a balanced and proportionate way forward was for BP to be educated about Skype and for his family to visit outside the care home window by prior appointment, allowing him to use the communication board. The judge found that capacity assessments must be made remotely at this time and need to be subject to vigilant scrutiny.
Health & Welfare LPA’s
Having a Health & Welfare LPA allows you to decide who makes certain decisions on your behalf (your Attorney) if you lose mental capacity to do so. It allows your Attorneys to decide matters such as:
- Your daily routine;
- The medical treatment you receive;
- Where you live, including moving into a care home; and
- Consenting to or refusing life-sustaining treatment.
To use an LPA it must registered with the Office of the Public Guardian (OPG) which usually takes at least 12 weeks. If you need to put provisions in place more urgently, you might want to consider making a General Power of Attorney.
If you lose the ability to make your own decisions and don’t have a health & welfare LPA, your loved ones may need to apply to the Court for someone to act as your ‘Deputy’ in order to make decisions on your behalf. This can take several months and is far more costly than making an LPA.
Your Deputy will be chosen by the courts not your family and may be quite limited in its scope relating to your health and welfare decisions.
If you have any questions about this article or wish to make an LPA or apply to the Court, please get in touch with a member of the Private Client team.