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

Application by P’s daughter for declaration following care home moratorium on family visits in the light of COVID-19. Moratorium upheld despite human rights implications.

This was an urgent application made on behalf of BP by his daughter and litigation friend FP.  BP is an 83-year-old diagnosed with Alzheimer's disease who currently resides in a care home where he has been since 25.06.19.  He was discharged from hospital to the care home after falling ill at home and his placement was authorised on 12.08.19 as a necessary and proportionate deprivation of liberty.  The standard authorisation was due to expire on 2.02.20 but was extended to 3.06.20 by order dated 6.03.20. 

BP is deaf but can communicate via a "communication board".  He is unable to use a telephone, facetime or skype.  BP has consistently and unambiguously expressed a desire to return home.  His capacity remains a live issue, and there is an outstanding assessment delayed because of the COVID-19 crisis.  Prior to 20.03.20 when the care home decided to suspend all visits by family members and also any expert assessors, BP enjoyed frequent visits from many family members and was visited at least once a day

The present application sought (para 11):

• A declaration that if the care home did not take steps to arrange a cognitive assessment and reinstate family visits, the it was not in BP's interests to remain in the care home

• An order that if the care home did not comply with the above, that the order dated 6.03.20 (extending the standard authorisation) be revoked

• A declaration that the total ban on visits was a disproportionate interference with BP's Art 5 & 8 rights

• An interim declaration that whilst the restriction on visits remained, it was in BP's best interest to return home with a package of care

The judgment provides a thorough summary of the legal framework to be applied at paras 13- 25 including Art 15 (derogaton in time of emergency) and the Council of Europe's European Committee's statement of principles in relation to the COVID 19 pandemic (para 21)

It was recognised that the restrictions on visiting were an interference with BP's right to family life that were further aggravated by his deafness.  The court noted that the matter was listed for further directions on 3.06.20 and that the derogation was to cover a limited period of time.  The Judge noted that on the proper construction of the authorities it was not essential to signal in advance a notification of derogation to the Council of Europe and in any event, it would not be practical to do so.  The court would send notification of the decision. (para 27)

Exploration of the family's alternative proposals (for care at home) and for allowing continuation of visiting were found not to be practicable as the family "with the help of their advocates began to absorb some of the stark realities of the situation" (para 36).  A plan was ultimately put together that allowed for some remote visiting and assistance with educating BP to use electronic means of communication.

The Court also addressed the issue of remote capacity assessments (para 37) and determined that a capacity assessment should be facilitated to be undertaken remotely (para 37-38)

Summary by Martina van der Leij, barrister, Field Court Chambers

You can read the full judgment of BP v Surrey County Council &Anor [2020] EWCOP 17 on BAILII