How Will The Coronavirus Affect Contact For Protected Parties?

The Government announced on Monday night that all shops other than those offering essential goods and services were to close their doors. It was not clear from the Prime Minister’s brief statement whether care homes should remain open and where this would leave elderly and seriously disabled patients and their families.

In many Court of Protection cases concerning welfare, contact between the protected party and their family is one of the prime considerations. This is particularly important in situations where the local authority or local health authority have deprived the protected party of his/her liberty (for their own safety) and moved the protected party into a care home or psychiatric hospital. The question is:

How can contact take place, and how can it work, particularly in uncertain and dangerous times such as this?

The general position at law is as follows. Family members who previously lived with the protected party – even those against whom there is a suspicion of abuse – cannot be cut out of the protected party’s life unless the circumstances are extreme.

Indeed, family members can assert article 8 rights (referring to the Human Rights Act 1998 and particularly the right to respect for your private and family life). The Court of Protection is always mindful that families and close friends are personally affected by contact restrictions and it is incumbent on the Court under the Mental Capacity Act 2005 to consider the views of family members (and those close to the protected party) and their importance in the protected party’s life.

Many protected parties benefit from routines, from regular contact with those they know best – particularly if they have been placed in a strange environment – and from the distraction.

The impact of the coronavirus on protected parties

The coronavirus outbreak obviously presents its own risks. It is important to remember that care homes are homes. The current medical advice we are all mindful of is that we should not visit each other at home, and should only go out with members of our own household, keeping apart from others.

This regrettably means that many care homes will be closing their doors to relatives and friends. It is very likely to cause some unrest to protected parties who depend on regular contact with relatives, but care homes will be acutely aware that outside visits could easily result in residents being infected, and the staff themselves.

So, whilst this is bad news for protected parties, their close friends and relatives, it is not all doom and gloom. Many care homes do have the technology to allow residents to communicate via FaceTime, Skype and other similar electronic means. Care homes will not all have the same policies concerning methods of contact between residents and relatives but many staff are trained to recognise the importance of ensuring residents are able to speak regularly to their close family. At the very least, telephone contact is usually enhanced when face to face video conferences are not possible.

It is worth checking with the care home in question to see what restrictions have been put in place, and whether measures are in place to try and maintain a level of contact between protected parties and their family. If the protected party is in a secure residence due to local authority action, then the local authority does have a duty to ensure that the protected party’s needs (including the need to communicate with his/her family and friends) are being met, within safety parameters. If all else fails, it is certainly possible for relatives and friends struggling to get in contact with a protected party to seek change by bringing legal action against those responsible for the protected party’s care.