The Court of Protection is a specialist court that safeguards the rights of the most vulnerable people in society. With the coronavirus pandemic leading to increased restrictions on vulnerable adults in care settings, including some care homes stopping all visits from family and friends, the safeguards afforded by the Court of Protection are more important than ever.
Over recent months, people’s concerns about the inability to visit and speak with their family members in care homes have been widely reported, with different care providers taking different approaches to facilitating contact.
Now that we are in what is being called the ‘second wave’ of the pandemic, with different areas of the country being placed into different ‘tier’ categories depending on the prevalence of the virus in that area, the different approaches to contact with loved ones living in care settings will continue to be an issue.
In respect of the new tiered approach to controlling the virus, the new guidance is contained in the Health protection (Coronavirus, Local COVID-19 Alert Level) (Very High) (England) Regulations 2020 (SI 2020/1105). Schedule 2 specifies the areas to which the regulations apply. Schedule 1, Tier 3 restrictions Part 1, section 5 provides:
Exceptions in relation to indoor gatherings
This exception to the ‘very high’ tier 3 restrictions therefore does permit contact with relatives ‘staying’ in care homes. However, the contact arrangements should remain COVID-compliant.
On 15 October 2020, The Department of Health and Social Care updated it’s guidance in respect of the Mental Capacity Act 2005 (MCA) and deprivation of liberty safeguards (DOLS) during the pandemic. It is important to note from the guidance that if someone lacks mental capacity to make a decision themselves (for example, about having contact with others, or where they should live), a best interests decision should be made on an individual basis.
The guidance states that “all decisions must be taken specifically for each person and not for groups of people”. It would be unlawful to impose blanket bans or the same restrictions on all residents in a particular care home from receiving visits / or ‘window visits’ from their loved ones. The principles of the Mental Capacity Act 2005 and best interests decision making must still be applied by professionals. This must include consultation with anyone with an interest in the person’s welfare, including any friends and family members.
It is also necessary to consider whether the increased restrictions being placed on an individual in a care setting amount to a deprivation of their liberty, which would require authorisation. If the individual is already subject to a DOLS (deprivation of safeguards authorisation), the additional restrictions may amount to an additional deprivation of liberty requiring further authorisation.
The guidance also states that where the area is in the ‘high/ tier 2’ or ‘very high/ tier 3’ category, face to face visits to people in care settings by professionals (e.g. to undertake assessments or visits by RPR’s or IMCA’s) must only be undertaken in exceptional circumstances. For example, if the visit is the only way to meet the person’s specific communication needs, in urgent cases or if a meeting is needed to avoid a breach of the person’s human rights. Wherever possible, professionals should use remote techniques to remain in contact with the person.
It may be necessary to consider whether a move out of a care home or other care setting may be in the person’s best interests due to the negative impact that not having contact with family members is having on the individual (e.g. isolation, low mood and increased confusion of an individual with dementia). This would involve considering the restrictions in place, the extent to which they are necessary, and whether it is proportionate and necessary for them to remain in the care home in light of the negative impact it is having on them.
The government published updated guidance on 5 November 2020 which applies for the period of the national restrictions beginning on 5 November 2020 (the second ‘national lockdown’).
The guidance makes clear the importance of receiving visits from loved ones and says that maintaining some opportunities for visiting to take place is critical for supporting the health and wellbeing of residents. The guidance sets out measures that can be put in place to provide COVID-secure opportunities for families to meet using visiting arrangements such as screens, visiting pods and window visits.
It is very clear from the guidance that care home providers must work together with families and professionals to find the right balance between the benefits of visiting, and the risk of transmission of COVID-19 to social care staff and vulnerable residents.
The guidance reiterates the position that no blanket restrictions or policies can be put in place applying to all residents in a care home, and that the needs and views of the individual resident are important aspects of the decision to be made around visiting. For example, it is important to consider the effectiveness of any social distancing measures with regard to any cognitive impairment the resident has and their communication needs.
Care homes must take into account any significant vulnerability of residents, but also ensure compliance with their obligations under the Equality Act 2020 and Human Rights Act 1989. Any prevention of contact with loved ones will undoubtedly amount to an infringement of the resident’s right to private and family life (Article 8 of the European Convention on Human Rights).
Individual risk assessments, and best interests decisions (if the resident lacks mental capacity) must be undertaken. Social workers can assist with this.
A case involving a ban on contact with a family member in a care home was heard by the Court of Protection on 25 March 2020.
The case related to an 83 year old man (referred to as “BP” in the interests of anonymity) who is Deaf and has a diagnosis of Alzheimer’s Disease. He has resided in a care home since June 2019, and prior to that, lived at home with his wife. He uses a communication board to communicate, and usually enjoys numerous visits from his family members and friends per week. His daughter usually visits six days a week, his son four times a week, his granddaughters once a week and his wife three times a week.
In response to the coronavirus pandemic, the care home banned all visitors on 20 March 2020. BP’s wife had been to the care home and waved to him through the window, which the family were concerned was confusing for BP as he was unlikely to understand the pandemic and the reason why they were not able to go inside the home.
It is clear that Local Authorities and care homes should communicate with residents and their loved ones to discuss and implement creative and innovative ways to ensure that contact continues.
Being Deaf, BP was not able to use a telephone, Facetime or Skype.
BP’s daughter instructed a Solicitor and made an application to the Court of Protection on his behalf, arguing that the ban on contact constituted an unlawful interference with BP’s rights (Articles 5 and 8 of the European Convention on Human Rights). She argued that if the ban was to remain in place, she would rather her father moved to her house whilst the restrictions are in place.
The Judge decided that moving to live with his daughter in the interim was not a realistic option, and after some discussion, the parties agreed that:
- Training should be provided to BP on Skype, with creative use of a communication board and the use of concurrent instant messaging should be explored
- The family can go to BP’s bedroom window (which is on the ground floor), wave to him and use the communication board to communicate with him and
- To achieve this, “time, effort, and some creativity” will be necessary.
The Judge commented that this was “a balanced and proportionate way forward which respects BP’s dignity and keeps his particular raft of needs at the centre of the plan”.
And importantly, the Judge commented that "In the context of Coronavirus, the State's obligation is to ensure equality for people with disabilities and to guard against them being inadvertently left behind by a system which deprioritises them in the urgency of a response to crisis.”
A complete ban on contact with family members for those in care settings could lead to inequality for those with disabilities. It is extremely important that all efforts be taken by both the relevant Local Authority and care home to facilitate contact with loved ones using any creative means possible, taking into account the individual’s particular disabilities and needs.
In the event that this cannot be achieved in consultation with family members, the Court of Protection is a safeguard to ensure the protection of the individual’s human rights and enables a decision to be made in the best interests of individuals lacking mental capacity where necessary.
Should you require any advice or assistance in respect of issues with contacting or visiting your relative or loved one in a care home, please do not hesitate to contact us on 01616 966 229 and our team of specialist mental capacity and Court of Protection solicitors may be able to assist. Legal aid funding is available subject to eligibility.