Blog by Helen Curtis of the Garden Court Chambers Court of Protection Team.
In March 2020 at the outset of the coronavirus restrictions, Mr Justice Hayden considered the problem and potential solution of contact for those in care homes in BP v Surrey County Court  EWCOP 17. Now, in Davies v Wigan Council & Anor  EWCOP 60 Mr Justice Hayden again wrestles with the competing interests of infection control and the recognised need for individuals in residential care to have contact with members of their family. In Davies Hayden J also dealt with the separate issue of anonymity, concluding that the balance of competing interests weighed against it and therefore the judgment identifies the person at the centre of this case.
Dr Davies acted as the litigation friend for his wife, Michelle Davies aged 58 years, who on 14 December 2018 suffered a significant subarachnoid haemorrhage and subsequently a stroke leading to 11 months in hospital. Dr Davies visited Mrs Davies daily, often with their adult son and continued to spend lengthy periods of time with her after she moved to the specialist brain injury neurorehabilitation unit. A standard authorisation authorising the deprivation of Mrs Davies’ liberty was granted from 29 January 2020 and an application challenging the authorisation dated 5 November 2020 was made, pursuant to s.21A of the Mental Capacity Act 2005.
The daily visits by Dr Davies were forced to cease in March 2020. Between 17 March and 6 July 2020 the only contact between the couple was via video phone, initially daily. In April the calls were reduced to 3 or 4 times per week for 30 minutes. As the regulations eased, Dr Davies and son were permitted to visit Mrs Davies twice, wearing masks and at 2m distance, before further restrictions caused contact to revert to 4 video calls per week, each for 30 minutes. There was no window contact. Mrs Davies then contracted – and recovered – from coronavirus.
By the time of the hearing on 23 November 2020, Mrs Davies had moved to the ground floor of a new care home where it was necessary for her to be initially quarantined. Window contact could take place but limited to twice a week partly due to the configuration of the building and ‘no doubt also due to the pressures on staff’ (para 21). Mrs Davies was seen through the window to be alone when she ate when she required supervision and on one occasion appeared to have slipped from her chair to the floor as it seemed the necessary belt had not secured her into the chair.
Hayden J referred to the publication of his open letters dated 15 October 2020 and 6 November 2020 in which he sought to emphasise that the provisions within Tier 3 restrictions (included in Schedule 1 of the Health Protection (Coronavirus, Local COVID-19 Alert Level) (Very High) (England) Regulations 2020 (SI 2020/1105) and in the subsequent Health Protection (Coronavirus Restrictions) (England) (No.4) Regulations 2020), did permit contact with relatives staying in Care Homes. Part of the letter dated stated 6 November 2020 is quoted in the judgment at para 17:-
“It is recognised that receiving visitors is an important part of care home life and that maintaining some opportunities for visiting to take place is critical for supporting the health and wellbeing of residents and their relationships with friends and family. 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 substantial screens, visiting pods, and window visits. Emphasis is correctly, in my view, placed on the importance of Care Home providers, families and local professionals working together to find the right balance between the benefits of visiting on wellbeing and quality of life, and the risk of transmission of COVID-19 to social care staff and vulnerable residents as we enter national restrictions”.
Hayden J described Dr Davies as ‘an articulate man’, and ‘gladiatorial’ on his wife’s behalf. In examining Mrs Davies’ contact needs, the Judge stated they must be,
‘regarded as unique to her…The scope of contact must be evaluated on an individual and not a generic basis. Her identified needs will then have to be assessed in the context of the realistically available options’ [para 22]
The Judge noted there had been a swift response to his enquiry whether window contact could be established on a daily basis after Mrs Davies’ quarantine. He went on to say, in the context of the forthcoming vaccines, and his authorisation of an investigation of contact options ‘any plan should reflect the need for frequent and vigilant review and should proactively contemplate the various alternatives that may soon emerge’.
Further, the Judge observed that:
‘the time has come for care homes to position themselves in the vanguard of the developing opportunities. In other words, they should move to the front line and be careful not to lag behind when identifying the emerging options. There are many reasons why this must be the case, not least the fact that (whilst this may not apply to Mrs Davies), for many in the care home system, time is simply not on their side’ [para 25].
Hayden J’s observation that the ‘carers’ sensitivity, kindness and simple humanity has for many of the residents in care homes rendered the unbearable endurable’ may be a welcome acknowledgment of the value of staff in care homes nationwide. While – as Hayden J’s 6 November letter notes – ‘care homes vary very widely’, they have all had to contend with enormous physical, emotional and practical challenges; meeting the contact needs of even one of their residents requires imagination and further resources.
Interestingly in this case Hayden J authorised ‘a structure of investigations that should produce a clearer picture of the contact options’ [para 24]. This appears to be aimed at the need for the care home in question to become increasingly creative to meet the contact needs of Mrs Davies.
Between March and November 2020, there has been a gradual realisation of the negative impact on the well-being and quality of life of those in residential care who have not seen the people who are ordinarily the fabric of their life. This judgment signals that every effort must be made in giving individual consideration to the contact needs of each resident with the development of outside pods, warm shelters or dedicated inside space, perhaps with a booking system for contact to take place. The restoration of sharing physical space, even touch, for those for whom a screen is a poor substitute cannot come soon enough.