Liberty, equality, the Court of Protection, and the coronavirus

Alison Harvey reports on an urgent Court of Protection hearing on whether it was in the best interests for an 84-year-old man to return home, given the total lockdown of his care home as a result of the coronavirus outbreak.

On the Friday before the government’s announcement of a lockdown, the care home at the centre of BP v Surrey County Council & RP [2020] EWCOP 20 closed its doors to all visitors: the mental capacity assessor who was due to assess BP, and BP’s family members.

The issues

BP is deprived of his liberty in the care home. He is well-loved and had been visited daily by his family: his daughter FP, who is his litigation friend, and his wife, RP, the second respondent. BP has dementia but is still in touch with the world around him. He and his daughter would read the newspaper together daily. BP is deaf. He communicates through a communication board. The combination of his deafness and his dementia mean that he does not use the telephone, Facetime or Skype. In the words of the judgment “There can be no doubt that the change to BP’s quality of life from 5 o’clock on Friday 20th March 2020 was seismic”.

The ongoing case concerns whether BP has capacity to decide for himself where he should live and, if not, whether it is in his best interests to be in the care home or to return home with a package of care. The urgent application concerned whether, given the total lockdown by the care home, it was in BP’s best interests to return home in the interim, pending the final determination of his capacity and best interests, to avoid breaches of his human rights.

It was argued for BP that the outcome of the mental capacity assessment was not a foregone conclusion, and thus the inability of the mental capacity assessor to visit could be the cause of an unlawful deprivation of liberty of someone who had capacity to decide where he should live. By the same token it was acknowledged that BP had some understanding that his family had not simply abandoned him, that there was a reason for their not visiting,

The rights at stake and the applicable law

In this case the action complained of had been taken by the care home: it had not been mandated by the local authority. The local authority accepted its responsibilities as supervising authority of the deprivation of liberty standard authorisation to ensure that it did not breach BP’s human rights.

The case concerned very different orders of rights. Article 5 is phrased in absolute terms but admits of exceptions. It is identical in structure to Article 2, the right to life, which was also at issue given the pandemic. By contrast, in Article 8, the right to private and family life, the rights of the individual are balanced against the entitlement of the State to do what is “necessary” “in a democratic society” to achieve specific protection of the public, including to protect public health. 

That is not the end of the story because the State, in deciding how to use an exception to Article 5, may use a balancing exercise, but it is an important place from which to start. If a deprivation of liberty does not fall within an exception to Article 5 then no justification will make it lawful.

Unless, unlike Article 2, Article 5, and Article 8 both admit of derogation in the face of “a public emergency threatening the lift of the nation”. Hayden J unhesitatingly found the Coronavirus constituted such an emergency (paragraph 27).

It was discussed before him what is required for a derogation. In Greece v UK, (European Commission on Human Rights Case 176/56) it was held that it is necessary to notify the Secretary General of the Counsel of Europe (paragraph 158 of the judgment). In Lawless v Ireland No 3 (European Court of Human Right, application 332/57) it was held that this will normally be by letter attaching the legal texts by which the derogation is made. But in Lawless, a case concerning powers taken against an identified threat from the Irish Republican Army, a notification made 12 days after the measure had come into force was held to be timely. No party to the case was aware of any notification of a derogation under Article 15 having been made by the UK government. The Coronavirus Act 2020, a Bill in ping pong at the time of the hearing, bears on its face the required statement that it is compatible with human rights.

As well as considering the Government guidance Coronavirus (Covid 19) guidance on residential care provision, of 13 March 2020, in force when the application was made, its guidance on social distancing for everyone in the UK of 23 March 2020 (now superseded) and the Coronavirus Bill , the Judge’s attention was drawn to the Council of Europe’s European Committee for the Prevention of Torture’s Statement of principles relating to the treatment of persons deprived of their liberty in the context of the Coronavirus disease (COVID-19) pandemic of 20 March 2020. I have my colleague at No5 Barristers' Chambers, Keri Tayler, to thank for drawing my attention to the latter. Cases from the UK courts and the European Court of Human Rights were also considered.

In accordance with Article 14 of the European Convention on Human Rights, BP is entitled to enjoyment of both without discrimination on account of his Alzheimer’s and his deafness and duties under the Equality Act 2010.

The Judge gave particular prominence to Articles 11 and 25 of the UN Convention of the Rights of Persons with Disabilities. Article 11 provides:

“Article 11 – Situations of risk and humanitarian emergencies

States Parties shall take, in accordance with their obligations under international law, including international humanitarian law and international human rights law, all necessary measures to ensure the protection and safety of persons with disabilities in situations of risk, including situations of armed conflict, humanitarian emergencies and the occurrence of natural disasters.”

The judgment

The Judge strove to put BP at the heart of his judgment. What would BP have done? FP’s evidence as his litigation friend was that he would not have wanted the disruption to the lives of his wife and daughter that would have been occasioned by his interim move home in the midst of the pandemic. She accepted the extent of the logistical constraints on this, which the Judge held to be insurmountable. 

In the end the Judge approved a plan drawn up by the parties that efforts be put into enabling real, effective, and not just theoretical, use of remote communications, and that family members be permitted onto the care home premises to communicate with BP through the windows of his room.

The Judge held that the Mental Capacity Act assessment should be attempted remotely.

Future cases

BP had some understanding of the existence of a pandemic. Others in care homes will have none, but will understand that their family members have ceased to visit and will experience intense distress because of this. I have since seen at least one case where the person in the care home is receiving end of life care. If they do not see their relatives during the lock down, they will never see them again. If lockdown prohibits visits, they will die, not alone, I trust, for care home staff and medical professionals may be there, but without family or friends.

I anticipate that cases will arise that concern hospitals, prisons, all the places where exceptions to Article 5 provide for deprivation of liberty. They will involve persons at risk of infection, but also persons who have contracted the coronavirus.

I anticipate that the question of whether a derogation from the European Convention on Human Rights has been made, and whether it is lawful, will arise in future cases. 

I anticipate challenges to mental capacity assessments conducted remotely and, in a context where many care homes are short-staffed as a result of the pandemic, to the adequacy of support provided to residents to use unfamiliar electronic means of communication.

As my colleague Jake Rylatt has highlighted to me, s 15 of, and Schedule 12 to, the Coronavirus Act 2020, amending duties of local authorities under the Care Act 2014, entered into force at 3.30pm on 31 March 2020  and guidance as to the modification of the Care Act 2014 duties, termed "easements", has been published .

Administrative Court or Court of Protection?

An attempt could have been made to craft the matter as a judicial review to be heard in the Administrative Court. There were a number of reasons for preferring the Court of Protection in this case. 

Firstly, speed. The Court of Protection was already seized of the case. Its judges can move rapidly in response to an urgent application. We applied on Monday, agreed transfer to a Tier 3 Judge that day thanks to prompt response of HHJ Raeside, the transfer was effected on Tuesday, and the matter heard on Thursday.

There was an ongoing challenge to the deprivation of liberty in the Court of Protection: for the matter to have been heard in the Administrative Court the ideal would have been a Judge sitting in both the Administrative Court and the Court of Protection. There are few enough such judges to mean a risk of delay.

Secondly, proceedings in the Administrative Court could have fallen at the hurdle of an alternative remedy, in the court of protection.  While it might have been possible to craft a case that would survive this challenge, it was an argument to be avoided if at all possible.

Thirdly, the test. In the Administrative Court we should have had to show that the decision not to intervene was one no reasonable local authority could have taken. In the court of protection, the principles of s1 of the Mental Capacity Act 2005 guide all decisions. The person’s best interests are front and centre, the presumption of capacity is a starting point, unwise decisions are distinguished from decisions a person does not have capacity to make, before anything is done regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action.

Finally, the remedy. In the Court of Protection, you are arguably less likely to get blanket bans, or declarations of incompatibility with human rights. But you are likely to leave court with your remedy, tailored to your client. It is sometimes possible to achieve that in the Administrative Court with an order of mandamus, but rarely in a case where the hurdles are practical and logistical, as here.

On-line hearings

The hearing was by Skype. It is necessary that the hosting party have business skype, although those joining the meeting can join form “ordinary Skype”. It was agreed that the respondent would host. Its IT technicians were standing by throughout. Nonetheless there were a host of problems. At the outset the Judge ended up in a Skype “meeting” on his own, separate from the one where the rest of us were fathered. It took some time to bring him in. 

Skype on my machine was refusing to recognise my camera, so I could not be seen, only heard. There are advantages to this: you can spread your papers over your desk, drink coffee, get up and stretch when required. But the tone, as well as the content of everything you say must be conveyed through the voice alone.I have done radio interviews, even the Today programme, in the past, so I have some experience of this. You need your facial expressions as much, if not more than when you can be seen, as they have to sound in your voice. Smile. Exaggeratedly if necessary, but smile. You are much more likely to sound as though you are whinging than when you can be seen.

At one point, the journalist covering the hearing dropped out. Faithful to the principle of open justice, the Judge stopped the hearing to wait for him to re-join (which ended up requiring us all logging out and back in).

When the parties were invited to try to negotiate an agreement, rather than stop the whole meeting again, the Judge stepped out and left us to it. To bring the Judge back in, we had to start yet again. In the event, because of technical hitches, the court hosted the final tranche.

The proceedings were recorded differently for each tranche of the hearing. It is important to establish how the proceedings will be recorded at the outset, and to be alive to this every time you need to change tack.

FP was not on the Skype call. She gave her oral evidence by means of the Judge phoning her, and putting her on speaker phone. After a couple of questions from me, he asked the majority of the questions: both counsel were satisfied that he had covered all the issues.

It sounds highly unsatisfactory. But FP gave an excellent account of herself as the judgment attests. She retained her position as litigation friend, a matter that the respondent had challenged at the outset of the hearing. It was not that FP gave good evidence in spite of the technical difficulties; it was that the set-up worked for her. Rather than sitting through the hearing in court or on Skype and getting nervous, she experienced the proceedings as a phone call. She was in her own home. She did not have to look at, or be looked at, by her mother while she was asked about the family dynamics. I can think of very many situations in which the way in which this evidence was given would have been a disaster. I think it worked in part because of the work that those instructing me from Bison Solicitors had put in beforehand, and that FP had had a chance to meet me, if only by telephone, beforehand. I think it worked because of the personalities involved, their strengths and fears. I was pretty confident beforehand that in this case it would. It would not work for everyone. It is high risk. 

Finally, these hearings are tiring. Expect to feel as tired at the end of the hearing as you would normally feel at the end of the train journey home from the hearing.

Alison Harvey is a barrister at No5 Chambers. She was instructed by Bison Solicitors.

Scott Storey of 1 Crown Office Row appeared for the first respondent and RP was a litigant in person.

Relevant guidance has been updated since the judgment, see https://www.gov.uk/government/publications/covid-19-residential-care-supported-living-and-home-care-guidance#history