BP v Surrey County Council & Anor [2020] EWCOP 17

This was an urgent application by P’s daughter seeking P’s discharge from the care home where he is presently living, and a declaration that it is in his best interest to be returned to his home with an appropriate package of support.

P, who is 83 years of age, was diagnosed with Alzheimer’s disease in December 2018. He is deaf but is able to communicate through a “communication board”.

The application was brought about as a result of the decision of P's care home to suspend all visits from any family members because of the Coronavirus pandemic. It was contended that this application was urgent because the current restriction imposed by the care home was said to constitute an unlawful interference with P's rights, guaranteed by Articles 5 and 8 of the European Convention on Human Rights (ECHR).

Prior to the crisis presented by the Coronavirus pandemic, P had been receiving regular visits from his family and friends. P’s deafness limits some of his options, in that he does not use a telephone, FaceTime or Skype. The Honourable Mr Justice Hayden agreed that there was no doubt that the change to P’s quality of life since the restriction was imposed was seismic. Additionally, the restriction extended to a visit by the Mental Capacity Assessor.

Hayden J acknowledged that these restrictions had an impact on P’s Article 5 (right to liberty and security) and Article 8 (right to private and family life) of ECHR. However, Article 15 ECHR permitted derogation from Article 5 and 8 in situations of public emergency threatening the life of the nation. The Coronavirus pandemic justified the derogation.

P’s daughter acknowledged that her offer to provide 24-hour care every day was not a realistic option. As such, it was decided that it would be in P’s best interests to remain living in the care home. A plan was devised for P’s education of Skype and instant messaging with use of his communication board to have contact with the family. The family could also wave through the window of P’s ground floor room. It was also decided that the outstanding capacity assessment could be undertaken via Skype or FaceTime.

The full judgement can be read here

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