Stephen Simblet QC of the Garden Court Chambers Court of Protection Team discusses the case of BP v Surrey County Council and RP  EWCOP 17, 25 March 2020.
The decision is of interest due to its consideration of the human rights framework in relation to contact with an individual lacking mental capacity deprived of his liberty in care home during the pandemic. It also highlights how the parties were able to find a pragmatic way forward to enable some form of contact remotely with BP, who is deaf, during the ban on family visits to the care home.
The application was made before current legislation and guidance requiring people to stay at home save for in very limited circumstances was in force, and before current government guidance on family contact for people in care homes.
BP, a man aged 83, who suffers from Alzheimer’s disease and is deaf but able to communicate through a communication board, had been living in a care home since June 2019 following discharge from hospital. He wanted to return home, had been assessed as lacking capacity to decide about his residence and was under a standard authorization. In response to the Covid-19 crisis the care home suspended all visits by family members, prompting BP’s daughter and litigation friend, FP, to apply to the court for an order that if daily family visits were not reinstated the standard authorization should be terminated so that BP could return home to be looked after by her in the interim. She also sought a declaration that the total ban on visits was a disproportionate interference with BP’s rights under Articles 5 and 8 (read with Article 14 ECHR).
Hayden J held that the impact on BP’s quality of life as a result of the ban on visits was seismic, in particular because BP could not use the telephone and his ability to use remote communications was limited due to his deafness. However if BP were to contract coronavirus there would be a real risk to his life. Following consideration of Arts 5, 8 and 14 ECHR he turned to Art 15 ECHR: Derogation in time of emergency. He found that the Covid-19 crisis is a public emergency within Art 15 and that a derogation from obligations under the ECHR justified.
He also referred to the Council of Europe’s anti-torture committee’s Statement of Principles relating to the treatment of individuals deprived of their liberty in the context of Covid-19 and Art 25 UN Convention on the Rights of People with Disabilities (Right to Health of People with Disabilities).
He held that FP’s plan of looking after her father at home 24 hours a day was unrealistic and, following efforts over the course of the hearing to explore possibilities for family contact for BP, that there was a balanced and proportionate way forward by educating BP to use skype and instant messaging, by family waving to BP through his ground floor window and using the communication board. An outstanding mental capacity assessment of BP could be undertaken by Skype or facetime with BP being supported by staff, and to the extent possible by his family.
While the outcome for BP can be understood, by taking the route that he took to get there and purporting to effect a derogation from the European Convention on Human Rights with reference to Article 15 ECHR, the judge made a serious error of law. There is no role for him, a first- instance judge in the High Court, to play in seeking to suspend the operation of the European Convention on Human Rights in his court and his decision. This is a breach of his statutory obligations. The judge / court is expressly a “public authority” according to section 6 (3) of the Human Rights Act 1998, and it was therefore unlawful for him to act in a way that was incompatible with a Convention Right: section 6 (1). He was also required by section 2 to “take into account” judgments and decisions of the European Court of Human Rights. Hayden J’s decision, insofar as he purported to suspend the usual exercise of considering the European Convention on Human Rights and how that might affect the resolution of the issues in the case was obviously wrong. There are very limited circumstances in which a derogation from the Convention is permissible, and those are the consequence of a very clear, overt and political declaration from the Government. There are circumstances where the UK Government has tried this in the past. This included in A v UK (3455/ 05) and previously Ireland v UK (310/71). Lawless v Ireland (no. 3) 332/57 is authority for the proposition that the derogation must be done in a timeous way, and be the subject of proper formal notification.
The judge's reasoning implies that people in care homes no longer have all the usual human rights protections, but this is not the position.
That said, the proper application of human rights principles may well not have led to a different result. It could not be said that it is arbitrary for BP to have been detained in a care home, and his detention there may well have been proportionate bearing in mind the challenging environment in which he would otherwise be living, so, on the facts, the judge might well have found that BP’s Article 5 rights and Article 8 rights had not been violated.
The case is ongoing, so a further decision is to come. At the time of writing and of publication, the actual result of any reconsideration is unknown.