Can I Enforce A Capacity Assessment To Be Undertaken At A Place Which Has Been Deemed To Be Coronavirus Free?

The recent case of BP v A Local Authority and Another considered the possibility of allowing a doctor to visit a care home, which was deemed to be COVID-19 free, in order to carry out a capacity assessment on BP. This assessment was in particular in respect of BP’s capacity to decide upon his place of residency and subsequently his provider of care.

BP was an elderly gentleman with a diagnosis of Alzheimer’s who retained a significant cognitive ability. Prior to, during the COVID-19 pandemic and subsequent lockdown, BP had insisted that he was allowed to go and live at home in his daughter’s care. An application was therefore made by BP’s daughter for a best interest decision to be made in favour of BP returning home.

An agreement was eventually reached, during the lockdown, which would allow BP to return home into his daughter’s care. Whilst considering the arrangements, a capacity assessment was sought to be carried out by a doctor. The doctor refused to carry out an assessment remotely as there were many challenges posed which could lead to inaccurate assessment. As the care home was deemed to have had no cases of COVID-19, the doctor suggested that he attended the care home whilst wearing suitable protective clothing in order to carry out the capacity assessment for BP. The care home, however, declined to allow the doctor’s attendance.

The Court agreed with the doctor that he was right to refuse a remote assessment as in his view it could not be accurate, but also agreed with the care home in its refusal to not allow the doctor to attend to carry out the assessment in person. Whilst the care home was COVID-19 free, the care home were to take all steps possible to avoid any potential threat and it was clear that there was a risk of introduction of COVID-19 posed with the doctor attending the care home.

The Court therefore suggested other options available which could have been used to complete a capacity assessment of BP where the doctor was unable to do this remotely. The Court suggested that experienced carers well known to BP could be used to form part of an opinion as well as family members. Taking into account all opinions, a reasonable assessment of capacity could be formed and then presented to a Judge for further consideration.

Ultimately, the Court confirmed that, unless the particular place where the capacity assessment is to take place allow access, the Court cannot force them to do so. This remains the case even when a place and the visitor has deemed to be COVID-19 free. This case illustrates the importance of protecting the population from any risk of contracting COVID-19, no matter how minimal that risk may be.