Human Rights In The Court Of Protection

The Court of Protection has specialist jurisdiction when an individual has lost capacity (a protected party) to make certain decisions for themselves. Cases in the Court of Protection fall into two categories:

• Property and finance disputes; and
• Cases concerning any issue(s) at all linked to a protected party’s health and personal welfare.

The latter being a very broad church indeed.

When an issue arises that a protected party would ordinarily be expected to make a decision on, proceedings are usually started by those responsible for caring for the protected party, by his/her deputy or attorney (if anybody has been appointed as such) or by a relative or friend with a close enough relationship to the protected party.

Any issues in dispute in health and welfare proceedings are generally resolved by the Court with reference to the best interests criteria (section 4 of the Mental Capacity Act 2005). This is not uniform and varies from case to case depending on a protected party’s individual circumstances. But health and welfare cases can encompass:

• Where a protected party lives;
• Who a protected party is able to see and the terms on which this takes place; and
• How a protected party should be cared for.

This is where the principles applied by the Court of Protection naturally stray into the territory of human rights.

The impact of Covid-19 on human rights in Court of Protection proceedings

One issue that is coming up all too frequently in the wake of the coronavirus pandemic is contact between a protected party and their close relatives, particularly in cases where a protected party is confined to a care home and under the supervision of a local authority. Whilst family members – including spouses – should, where possible, be involved in that process, they do not have an automatic right to make decisions on a protected party’s behalf unless they have been specifically appointed to act as attorney or deputy. This can be hard on a protected party’s close relatives, and it has been very difficult for spouses in particular who cannot visit their loved ones due to restrictions applied in the wake of Covid-19.

Care homes have to be exceptionally careful about Covid-19, due to the risk of mass transmission amongst residents, many of whom will be in the vulnerable category. In accordance with Government advice, blanket restrictions on visitors have been the norm for the last 10 months and consequently the Court of Protection has had to deal with numerous applications by relatives seeking contact with protected parties. However, there is a compelling argument under the Human Rights Act 1998 that such restrictions are undermining a protected party’s right – under article 8 – to respect for private and family life, and by extension, the rights of a protected party’s spouse or partner, children and other close relatives.

Recent case law

An example of such a case has broken in the news recently involving Dr Michelle Davies, who had sustained a serious brain injury. Her husband, John Davies, and her son, Kane, had not been able to visit her due to restrictions imposed by the care home she had been placed in and Mr Davies argued that her article 8 rights were being undermined. He also argued that the isolation would undermine her progress and that the care home could put in place particular safeguards to allow visits including testing, PPE and so forth.

This case is on-going and a final decision on the issue is awaited. However, it demonstrates that human rights arguments are becoming more and more compelling in the wake of Covid-19. Generally, a protected party’s anonymity is protected by the Court but in this case, the Judge took the unusual step of waiving the protected party’s anonymity, accepting Mr Davies’ argument that Dr Davies would want others in a similar situation to benefit from any decision the Court reaches.