The Role Of Human Rights In Welfare Proceedings In The Court Of Protection

It is a subject that could fill several books, but in many Court of Protection cases concerning the health and welfare of a protected party, human rights are of prime importance.

The protected party’s place of residence and the contact he or she has with close relatives and friends are key issues in many of the contested proceedings before the Court of Protection and this was very much the case in BP v Surrey County Council [2020] EWCOP 17.

BP v Surrey County Council

Case details

The protected party – an elderly man who had been diagnosed with Alzheimer’s disease some two years previously – had been placed in a care home by the Local Authority in July 2019 following a misadventure.

His condition was moderately advanced but not to the point that he could not recognise and engage well with his close relatives. There were two early capacity assessments during which he was deemed to lack the capacity to make informed decisions about his place of residence but both assessments concluded that whilst he could understand the nature of his condition and information given to him, he could not easily weigh up that information. He was also deaf.

In the care home, it was accepted by all parties that the protected party was being cared for very well and he would see members of his family every day. He was described by his relatives as a committed family man and the Judge noted him to be sociable and popular.

However, in the wake of the coronavirus outbreak, the care home stopped all visits. The Government guidance issued to care homes – all of them should:

“review their visiting policy by asking no-one to visit who has suspected COVID-19, or is generally unwell…the review should also consider the wellbeing of residents and the positive impact of visits”.

Visits in UK care homes have not been banned overall, and the Government guidance above does give care homes discretion. However, many homes have outlawed visits altogether, recognising that outside visitors present a significant risk to vulnerable residents and staff for reasons we are all familiar with.

Legal proceedings

The protected party’s daughter made an urgent application to the Court of Protection to have him moved in with her. She had been self-isolating in preparation and was preparing to provide him with 24-hour care. In the alternative, she sought declaratory relief that the care home was acting disproportionately in banning visits, which undermined the protected party’s human rights.

The protected party’s daughter argued that denying her father visits from his wife and children offended his right to liberty and security (article 5 of the European Convention on Human Rights) and the right to respect for private and family life (article 8).

The Court also acknowledged that article 14 (rights should be secured to all, without discrimination on the grounds of disability) as the protected party was deaf and the care home’s solution of delivering family contact via Skype was not as helpful to him.

Much time was spent considering the impact of article 15 – the state’s ability (and that of Local Authorities) to derogate at times of emergency on the basis that the coronavirus pandemic rendered it necessary for the Government to impose measures which undermined the protected party’s rights.

On balance, it was decided that despite the obvious benefit of visits, the care home could not be said to be acting disproportionately. It is interesting to note that the protected party’s personal characteristics (deafness and closeness to family) almost swayed the Court’s decision – but in this early test of Local Authority responses to Covid-19, a moratorium on personal care home visits was upheld despite the human rights implications.