Challenging deprivations of liberty during the Covid-19 pandemic: what amounts to a lawful derogation from the right to family life?

(This article appeared in Private Client Business Issue 4 2020 and is reproduced with permission of Thomson Reuters).

The acute impact of the public health emergency on care homes has been reported extensively in recent weeks. Opposition political parties and other organisations (such as Care England, a charity which represents care providers) have challenged and criticised the decisions taken by government earlier in the pandemic which may have accentuated the impact in care homes. The most recent figures produced by the Office of National Statistics show that the number of deaths involving Covid-19 occurring in care homes in England (and notified to the Care Quality Commission) totalled 9,762 between 10 April and 15 May 2020. Less readily quantifiable, however, is the day-to-day impact on residents (and family members) of the measures, in place since mid-March, aimed at shielding care home residents from infection, which has resulted in the effective prohibition of visitors. For many residents, visitors provide a vital support to their well-being, which may in certain cases be significant in the context of their particular health conditions.

Two recent decisions of the Court of Protection have concerned applications for the discharge of a care home resident during the pandemic: BP v Surrey County Council & Anor [2020] EWCOP 17, a decision of the Vice President Hayden J, and VE v AO and Others [2020] EWCOP 23, Lieven J. Both cases concerned the application of the provisions relating to deprivations of liberty set out in s21A Mental Capacity Act 2005 (“the MCA”), but were at their heart welfare determinations: was it in the patient’s best interests to be discharged? In BP the application was refused, and in VE the discharge was ordered. This article will consider the principles which the court applied in reaching those decisions, and more widely the safeguards relating to deprivations of liberty as set out in the MCA in the specific context of the current public health emergency.

Released on 19 May 2020. A further update will be published on 26 May 2020, after this article will have gone to press.

Deprivations of liberty under the MCA

Schedule A1 to the MCA provides a procedural safeguarding regime for deprivations of liberty in hospitals and care homes. The essence of the safeguards is to secure professional assessment in relation to whether the person lacks capacity to make their own decision about whether to be accommodated in the hospital or care home, and whether it is in their best interests to be detained. The safeguards also require consideration of whether the deprivation in fact amounts to a deprivation of liberty within the meaning of the test set out by the Supreme Court in P v Cheshire West and Chester Council and another [2014] UKSC 19 (“Cheshire West”), namely: is the person subject to continuous supervision and control, and is the person free to leave? The relative normality of the placement (e.g. relative having regard to the person’s disability) and the reason or purpose behind a particular placement are not relevant considerations in determination of the Cheshire West ‘acid test’. If, upon scrutiny, all the requirements within the safeguarding regime are met, the supervisory body (the local authority where the person is ordinarily resident) may grant a ‘standard authorisation’ to the managing authority (the care home or hospital), the maximum duration of which is one year. They must also consider whether any conditions should attach to the authorisation (such as a requirement to review certain care arrangements, or to enable community access for the person). It may be necessary for the person to be deprived of their liberty before the supervisory body has considered the request, and in those circumstances the managing authority can grant an urgent authorisation for up to 7 days (extendable for a further 7 days).

Pursuant to s21A MCA, a person subject to an urgent or standard authorisation can challenge that authorisation in the Court of Protection, with the help of their relevant person’s representative who may be a family member or a paid professional and whose appointment is a requirement within the safeguards. The role of the Court of Protection on such an application is to review the lawfulness of the detention to ensure compliance with article 5(4) of the European Convention on Human Rights, and in that regard the court may need to consider whether the capacity requirement is met (i.e. whether the person does lack capacity to decide the issue of their residence), whether the best interests requirement is met (i.e. is the placement in their best interests) and/or whether the placement is the ‘least restrictive’ option. Sub-section 2 provides that –

Where a standard authorisation has been given, the court may determine any question relating to any of the following matters – 

• Whether the relevant person meets one or more of the qualifying requirements;

• The period during which the standard authorisation is in force;

• The purpose for which the standard authorisation is given;

• The conditions subject to which the standard authorisation is given.

The ‘qualifying requirements’ are set out in Schedule A1 and include:

• Age (18 or over);
• Mental health: the person must be suffering from a mental disorder;
• The capacity requirement: the person must lack capacity in relation to the question of whether or not he should be accommodated in the relevant hospital or care home for the purpose of being given the relevant care or treatment;
• The best interest requirement: that it is in the best interests of the person to be a detained resident, it is necessary in order to prevent harm to the person, and it is a proportionate response to the likelihood of harm.

BP v Surrey County Council 

The case of BP v Surrey County Council (Hayden J) proceeded as an application under s21A. The salient facts were as follows. BP was 83 years old and had been diagnosed with Alzheimer’s disease in December 2018. He was deaf but able to communicate through a communication board. His daughter, acting as BP’s litigation friend, brought the application on an emergency basis in March 2020 for an order for BP’s discharge from the care home for him to be returned home. Over the course of 2019 the manifestations of BP’s Alzheimer’s had worsened and plan had been made for some respite care. However, before that could take place he fell ill, and on 20 June 2019 he was admitted to hospital. He was discharged on 25 June 2019, but to a care home. A standard authorisation was granted on 12 August 2019. Thereafter, BP had continuously and unambiguously expressed his wish to return home. Until the coronavirus pandemic, BP had been receiving visits six days a week from his daughter, from his son four times a week and his wife 3 times a week and regularly from other family members in addition. The application was prompted by the decision of the care home to suspend all visits from any family members in the context of the pandemic and this, it was argued, constituted an unlawful interference with BP’s rights, guaranteed by Articles 5 and 8 of the European Convention. His deafness limited his remote communications options: he does not use a telephone, Facetime, or Skype and, as Hayden J found, there was “no doubt that the change to BP’s qualify of life from 5 o’clock on Friday 20th March 2020 was seismic”. The judge later recorded that he had “no doubt that [BP] derived enormous benefit from contact with his family and friends and that contributed very significantly to his general sense of well-being”. Reflecting, however, other competing considerations, the judge commented that at his age and with his underlying health problems, BP was vulnerable to the most serious impact of the coronavirus: were he to contract the disease, there would be a very real risk to his life.

The focus of the argument was therefore whether it remained in BP’s best interest to stay in the care home; that the restrictions effectively imposed by the care home required the court to re-evaluate the balance as to where BP’s best interests now lie. Responding to the application, the local authority recognised the interference with BP’s right to family life presented by the visiting restrictions, an interference which was aggravated by BP’s deafness. Hayden J approached the task of reviewing BP’s best interests first by consideration of the decisions of the European Court of Human Rights in respect of Article 5: Storck v Germany (Application no 61603/00), 16 June 2005 and Stanev v Bulgaria (2012) 55 EHRR 22, 12 January 2012, both of which emphasise the obligation on states to take measures providing effective protection of vulnerable persons, including reasonable steps to prevent a deprivation of liberty of which the authorities have or ought to have knowledge. In subsequent domestic authority giving consideration to this obligation, the Court of Appeal has held that the duties of the local authority are threefold: (1) a duty in appropriate circumstances to investigation; (2) a duty in appropriate circumstances to provide supporting services; and (3) a duty in appropriate circumstances to refer the matter to the court (see Munby LJ in Re D (A Child) (Residence Order: Deprivation of Liberty) [2017] EWCA Civ 1695; [2018] 2 FLR 13). Hayden J continued in his analysis to consider Article 8 (the right to respect for private and family life), Article 14 (that the rights within the Convention shall be secured to all, without discrimination, including on the grounds of disability) and, importantly, Article 15. Article 15 permits derogation from Articles 5 and 8 in situations of public emergency threatening the life of the nation, and the Hayden J found as “redundant of any contrary argument that we are facing a public emergency” and that the “spread of this insidious viral pandemic particularly, though not uniquely, threatening to the elderly with underlying comorbidity, establishes a solid foundation upon which a derogation becomes not merely justified but essential”. He referred also to the Council of Europe’s Statement of Principle (issued on 20 March 2020) relating to the treatment of individuals deprived of their liberty in consequence of the pandemic, which provided that any restrictive measure taken to prevent the spread of Covid-19 “should have a legal basis and be necessary, proportionate, respectful of human dignity and restricted in time”. In the context of the coronavirus, the state’s obligation was, the judge held, 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 the crisis.

From a factual perspective, the review of the case resulted in the court concluding that the requirement for 24-hour care meant that the proposal for the care of BP by his daughter was not a realistic option. Efforts to explore the possibilities for direct contact were made, but ultimately were not possible. The plan that surfaced, which in essence Hayden J approved, was for BP’s ‘education into the world of Skype’, coupled with creative use of the communication board, concurrent instant messaging, and contact through the window of BP’s ground floor bedroom. This, the court held, represented a balanced and proportionate way forward which respected BP’s dignity and kept his particular raft of needs at the centre of the plan.

VE and AO v The Royal Borough of Greenwich

The case before Lieven J in April was factually very different to the case before Hayden J. VE, AO’s daughter, brought an application for an order that it was in her mother’s best interests to be allowed to leave her care home. VE was suffering from terminal cancer and, whilst there were conflicting views as to how ill AO was, it appeared to be the case that her life expectancy was very limited; indeed she sadly died between the hearing and the handing-down of the judgment. AO had been enjoying extensive staying contact with her family – four days every second weekend and holidays. In January 2020 her health had declined, and she had been admitted to hospital. On 20 March 2020 an order was made that it was in her best interests to be discharged to her care home but directions were made for the filing of evidence in relation to the consideration of whether she should move to VE’s home. In light of the pandemic, the care home had ceased all family visits, and it was acknowledged by all parties that adequate contact could not be maintained at the present time between AO and her family. The Official Solicitor, acting as AO’s litigation friend, supported the move, agreeing that the court could assume that AO would have wished to spend her last days with her family, and that the evidence supported a finding that the family could provide sufficient care at home to ensure AO’s best interests were met. The local authority were against the move (albeit the position softened somewhat towards the end of the proceedings) on the basis that there had been no assessment in relation to provision of care at VE’s home. Their concluding position was that the court should not make an immediate order for AO to leave until a quick further assessment had been carried out. Significantly, it was not argued that there was any public health reason to prevent AO leaving the care home to live with her family, although the judge referred to the fact that it was possible that AO, given her current symptoms, did have Covid-19.

Lieven J decided that AO should move immediately to VE’s home, and the order took effect on 20 April 2020. The central question for the judge was whether it was in AO’s best interests to be allowed to leave the care home to go to her family to die. She made it clear that none of the parties had argued that AO should not be allowed to leave the care home because of the risk of Covid-19, or that any possible public interest in not allowing her to leave outweighed her best interests; the decision was said to be 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. However, as part of her conclusions Lieven J said, at paragraph 41, the following:

Finally, there is the issue of whether it was in AO’s best interests to leave TO by reason of the risk to her of contracting Covid 19. The order I was being asked to make, unlike that in the BP case, did not involve any increased risk to either residents or staff at TO. At the time of the hearing it was wholly unclear whether anyone at TO had contracted Covid 19. The manager, when speaking to Ms Hobey-Hamsher, said that she simply did not know because no residents were being tested. In terms of the risks of AO contracting Covid 19, that was necessarily a matter that I and everyone else in the case was conscious of, but it was not possible to quantify. Nor was it possible to know whether there was any risk of AO contracting Covid 19 and spreading it to her family if she moved to live with VE. This risk was not raised as a factor for me to take into account at the hearing.

And later:

It was necessary to consider the Health Protection (Coronavirus Restriction) Regulations 2020 (SI 2020/350) in order to ensure that in allowing VE or a family member to collect AO from the care home I was not inadvertently allowing a breach of the Regulations. Regulation 6(1) prohibits any person from leaving home without a reasonable excuse. Regulation 6(2) lists, apparently non-exhaustively, matters that would amount to a “reasonable excuse”. At regulation 6(2)(d) these include providing care or assistance to a vulnerable person. For a family member to collect AO from TO is to provide assistance to a vulnerable person and thus falls within that sub-regulation. It would in any event also accord with the order of the court. I therefore made the order sought so that AO could move on the evening of Monday 20 April 2020.

Whilst the relative importance of Covid-19, and the risk presented by the disease to both AO herself and the wider public, was said by Lieven J not to feature in her conclusions, at least to some degree it appears to have informed the decision-making process. Reference to Covid-19 is also made in the postscript to the judgment in which VE’s death very shortly after her move to AO’s home was mentioned, but that the judge did not know what she died of “and whether she had, indeed, contracted Covid 19”. It could perhaps be said that the profound feature of the case in the form of the likely imminence of AO’s death enabled hers, and her family’s, Article 8 rights to prevent the derogation of those rights by virtue of the public health emergency – even though the judge did not in fact engage in a balancing of the competing Convention rights. In a more finely balanced case, such as a case similar to BP but where care could perhaps be more readily provided at home (a case which could conceivably arise before restrictions on care home visits are relaxed) we may find the courts being compelled not only to engage in such a balancing analysis of the protection of Article 5 and 8 rights as against the risks to health of both the person concerned and others, but also being compelled to find that the scales weigh in favour of the discharge from a care home in order that the right to liberty and family life can be properly protected.

Conclusion

Whilst involving very different factual matrices, both of the cases explored above may at first impression give the appearance of a ‘straightforward’ best interests analysis. However, in both cases the courts were engaged in (even if not expressly in VE) a careful balancing appraisal which, unlike (most) pre-pandemic s21A applications, involved a broader public health consideration within the balancing of Convention rights. In BP the nuance of the determination is in the fact that Hayden J in essence found that the restrictions on contact presented by the prohibition on visits did amount to a violation of BP’s Article 5 and Article 8 rights. The public health emergency justified a derogation from those rights, and the re-evaluation of BP’s best interests required, in that context, consideration of the alternative measures put in place (development of Skype, use of the communication board, contact through the window, etc) so as to enable the court to be satisfied of the proportionality of the derogation.

We can safely surmise that up and down the country, care home residents deprived (at one stage, but perhaps not now, lawfully) of their liberty will be suffering heightened violations of their Convention rights which may, or may not, be justified or proportionate depending on the measures being taken to mitigate the effects of the derogation.