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The Court of Protection and the rights of vulnerable residents in care homes

Lockdown, the suspension of visits, and changes to the contact between elderly care home residents and families, has had major consequences; in particular for the most vulnerable, those living with Dementia, or lacking mental capacity to understand the implications of the pandemic. 

As restrictions ease, care homes are struggling to balance the desire to re-establish contact and visits from families with prioritizing the rights and safety of residents. The prospect of a second spike has brought calls for family members to be recognized as key workers to enable them to visit elderly relatives in the event of future lockdowns.

In a case brought to The Court of Protection by a daughter concerned for her elderly father living in a care home the Court determined that it was in his best interests to be cared for by his daughter at home whilst contact was suspended during lockdown.  

Court of Protection during lockdown

The significance of the ruling is explained in this interview with Naima Asif, a barrister with Pump Court Chambers and member of the Chambers’ Court of Protection team.

Could you explain what the Court of Protection is and what it does?

The Court of Protection is a court in England and Wales that makes decisions on behalf of people who lack the capacity to make their own decisions.  This might be because they have a mental illness, Dementia or brain damage for example.

Who can go to the Court of Protection?

Anyone can apply to the Court on behalf of someone who lacks capacity; often it will be a family member, an NHS trust or a council.

What kind of decisions does the Court usually make?

The Court mostly deals with decisions about a person’s welfare, property or medical treatment.  It can make the decisions itself or it can give the power to someone else who is called ‘a deputy’ who may well be a family member. 

Please tell us about this case and its wider importance

The daughter of an elderly gentleman living in a care home brought the case to the Court of Protection in the early stages of the lockdown in March.

Aged 83, he suffers from Alzheimer’s disease and is also deaf, communicating using a communication board.  He lacks capacity to make decisions about his accommodation and care needs and was placed in a care home in June 2019.

In response to COVID-19, the care home suspended all visits from family members. Prior to this, he had received regular visits from his family including 6 visits a week from his daughter.  Deafness meant that he could not use a telephone, face time or Skype.

The application to The Court contended that the contact restrictions imposed by his care home constituted an unlawful interference with his rights under Articles 5 (right to liberty and security) and 8 (right to respect for private and family life) of the European Convention on Human Rights (“ECHR”).

His daughter argued that if the restrictions imposed by the care home were to continue, then it would be in his best interest to return home to live with her, with a package of care. Unfortunately, due to the health crisis, his daughter was unable to secure any package of professional support.

The Court had to grapple with whether it was in the father’s best interest to return home and into the care of his daughter.  

The Court’s decision

The Court determined that her proposal to single-handedly care for her father 24 hours a day was unrealistic. She herself acknowledged that, “the last thing he would want would be to burden her or her family”.

A plan was eventually agreed between the parties to enable the father to have contact with family members, including through Skype with the use of his communication board, and for family members to go to the bedroom window to wave at him. 

Matters did not end there however as there was a further hearing for the Court to address a number of issues. On the morning the parties reached a further agreement that the father would be able to move into his daughters’ care as circumstances had changed since the matter was last in court.

It was thought that the deprivation of contact with his family had triggered a depression in the gentleman which had required medication. There was concern that he had struggled to cope with or understand the social distancing policy which had been necessary as a result of COVID. He would have felt that he was being punished in some way.

The Court endorsed the plan for a return home. Although a move into his daughter’s care would require assessment of his needs and adjustments made to his accommodation, the Court held that it was ultimately  “a balance between a comprehensive assessment of needs and a recognition that his best interests now lie in a return home as soon as possible”.

Can you explain the implications of this ruling for other families in a similar situation?

Although each case will be fact specific, the important points to note if you or a relative are in a similar situation are as follows:

  • Care homes and local authorities should think of creative ways to ensure some form of meaningful contact is maintained for residents in a care home;
  • Regular contact could be facilitated through video calls using Facetime, Skype, Zoom and/or other mediums;
  • Direct contact could take place through a window (as in BP’s case) or in any outdoor space available to the care home where contact could take place safely; and
  • Thought should be given to whether the care home resident should temporarily return home with a professional package of care.

Families should work with care home staff to find creative solutions to individual situations. 

This ruling should help clarify what options may be available to family members concerned about a vulnerable relative in a care home.  It also highlights the role of the Court of Protection. 

Court of protection

Naima Asif is a barrister with Pump Court Chambers and member of the Chambers’ Court of Protection team.

This article does not constitute legal advice.

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