Will John’s Campaign’s Judicial Review Action Succeed?

A charity based in Essex, John’s Campaign, has started a judicial review action against the UK Government as they seek to challenge coronavirus restrictions, which prevent visits from the relatives of care home residents.

John’s Campaign supports dementia sufferers and their families. In most cases, people suffering from dementia or Alzhiemer’s require full time care, particularly as their disease becomes more advanced, and the importance of visits from relatives cannot be underestimated. For many dementia sufferers, a visit from a close relative will bring back memories and can be vital for them in enabling them to cope with the difficulties associated with being in a care home.

Those visits are of equal importance to the relatives – particularly the residents’ spouses, but coronavirus restrictions and guidance have all but prevented these visits. Whilst some care homes have allowed socially distanced visits, this is not always practical where a patient cannot understand the consequences of not adhering. Many care homes have made significant efforts with Zoom and Skype but these processes can be a little impersonal, they require constant supervision and they ae not always suitable for dementia and Alzhiemer’s sufferers who can frequently become distracted.

Judicial review action being taken by John’s Campaign

The lockdown and continued restrictions have almost entirely outlawed visits and John’s Campaign credibly argues that this amounts to a breach of the human rights of residents and close relatives. Article 8 of the Human Rights Act 1998 provides that “everyone has the right to respect for his/her private and family life, his/her home and his/her correspondence” without interference by any public authority. There is no doubt that preventing face to face visits offends this provision, however this right is subject to what is necessary both by law and as “is necessary in a democratic society in the interests of national security, public safety or…the protection of health”.

The Government can plausibly seek to justify its actions on the basis that there is a public health emergency and Covid-19, being extremely contagious, is particularly dangerous to the vulnerable and elderly which would include almost all care home residents. However, given that public houses, shops and even sports grounds have begun tentatively allowing people to return (subject to social distancing and precautions), it is arguable that the same can and should be done in care homes to enable face to face visits. Despite the possible lack of understanding of the health risks, many dementia and Alzhiemer’s sufferers do still have the capacity to decide whether they want to have contact with other individuals and the Government’s guidance is denying them this choice.

In order for a judicial review action to succeed, John’s Campaign must challenge the Government’s decisions in relation to care home visits on the basis that they are:

1. An error in law;
2. Procedurally unfair; or
3. Irrational (i.e. particularly unreasonable).

In theory, any of the above grounds are open to John’s Campaign and it is likely that the challenge will be based on all three. The Government will probably be able to legally justify bringing in restrictions in view of the public health emergency, and of course during the lockdown the whole of the UK population was prevented from meeting members of other households, which may make it difficult to bring a challenge under the first ground. But since restrictions were relaxed in late May 2020, the Courts might find that the Government’s failure to adjust care home visitor guidance was unreasonable.

The outcome of this challenge could provide a vital glimmer of hope for any people denied the opportunity to be with their loved ones.