“Time, effort and some creativity”: Maintaining contact with those in care homes during the Covid-19 period
As the Covid-19 curve flattens in hospitals across the UK, concerns are being raised in the press about the number of deaths from this disease in care home settings and questions are being asked about what measures are being taken to address this.
How are care homes addressing the issue of Covid-19?
On 20 March 2020, the Department of Health and Social Care issued guidance to care providers with advice on how to control the spread of infection within care homes. This has led to care homes implementing many new measures, including temporarily banning visits from friends and family members to residents.
How have the issues raised by Covid-19 been addressed in the Court of Protection?
These restrictions raise important questions for care home residents’ rights to a private and family life under Article 8 ECHR, especially for those who have mental health needs.
The Court of Protection has the power to make decisions about the property, financial affairs and personal welfare of people who lack mental capacity to make decisions for themselves. It has considered the following issues in respect of mentally incapacitated persons in light of the pandemic:
- Whether a family member can remove their relative from a care home in order to socially isolate with them in their home; and
- Contact with relatives in care homes in which visitors are banned.
Recent cases in which the above issues are considered are :
VE v AO & The Royal Borough of Greenwich & South East London CCG  EWCOP 23
This case concerned AO, an elderly woman who resided at a care home and who had regular contact with her daughter VE, which included overnight stays at VE’s home.
Very sadly, in late 2019, AO was diagnosed with terminal cancer with a prognosis of 3-6 months to live. Whilst receiving treatment in hospital, she was assessed as lacking capacity to make decisions about her residence. VE made an application to the Court of Protection for an order that AO be discharged from hospital back to her care.
Initially the court ordered that AO should return to the care home..
However, further to the government guidance referred to above, the care home, then implemented a policy of not allowing family members to visit residents in the home which meant that AO was not able to have any face-to-face contact with VE from the date of her return to the care home on 23 March 2020 until 20 April 2020, when a further court hearing took place at which the issue of contact and residence were considered.
At the hearing it was noted that although efforts had been made to try to facilitate non face-to-face contact between AO and VE, including with telephone calls and at least one video call, this was not considered a practical or effective solution in the long term because of AO’s mental state and because she would be unable to engage in non-face-to-face contact via technology. It was therefore accepted by all parties that adequate contact between AO and her family simply could not be maintained in the circumstances.
The judge, Mrs Justice Lieven, therefore ordered that it was in AO’s best interests to leave the care home immediately and live with VE and her family.
It is important to note that, as the Judge made clear, her judgment was based on the particular facts of AO’s case, and that the decision was “solely about what is in AO’s best interests in circumstances where she had terminal cancer and her family wanted her to die at home with them.” The judge also noted that if AO were to remain at the care home the current Covid-19 restrictions would likely mean that “the most contact that she would be likely to have would be one short visit from one family member at or around the time of her death”.
The judge made it clear that she was not asked to make a decision based on the risks of AO contracting Covid-19 whilst in the care home.
It is notable however that one the key issues in this case, that AO could not maintain meaningful contact with her family during the last few months of her life, arose as a result of the restrictions imposed in response to the Covid-19 pandemic. This issue is likely to resonate for many care home residents, particularly those with mental health conditions.
2) BP v Surrey CC 2020 EWCOP 17
In the case of BP, the court looked at the issue of whether the care home should be made to facilitate face-to-face contact between BP and his family, notwithstanding the government guidance.
BP is an elderly man with a diagnosis of Alzheimer’s. He is also deaf and so uses a communication board to communicate. This means that certain forms of communication, for example using the telephone or Skype, are not possible for BP and his family.
The judge, Mr Justice Hayden, decided that notwithstanding the significant impact on BP of the restrictions on his contact with his family, and the interference with his human rights including his rights to a private and family life under Article 8 of the Human Rights Act, these restrictions were justified by the public emergency caused by the Covid-19 pandemic. He therefore decided that the care home should not be compelled to allow face to face contact for BP and his family.
Mr Justice Hayden made clear, however, that local authorities and care homes should communicate with residents and their families to find creative solutions to maintain meaningful contact.
In BP’s case “the family could, by arrangement, go to BP’s bedroom window which is on the ground floor and wave to him and use the communication board.”
What have we learnt from these cases?
In the current climate, remote contact is the “new normal”. This is the same for those in a care home setting as much as it is for those who aren’t.
What is clear from these cases is that care providers are being encouraged to think flexibly and creatively to help service users maintain meaningful relationships with loved ones on a case by case basis. This is particularly important for vulnerable individuals whose mental health may be adversely impacted by restrictions on their contact with their loved ones.
Where such efforts to facilitate contact are not being made, it may be possible to bring a challenge through the courts, depending on the facts of the individual case.
However, we have yet to see a case in which the court’s powers under the Mental Capacity Act have been invoked to discharge a person from their care home to return to the care of their family, because of the risk of contracting Covid-19 in a care home.
Our Court of Protection team has extensive experience dealing with welfare cases in the Court of Protection, including in relation to disputes about contact and residence. If you have a query or would like some advice on any of these issues, please do get in touch and ask to speak with a member of our Court of Protection team who will be happy to discuss your enquiry with you.
12 May 2020
 This guidance is now in the process of being reviewed. The link to it is here