A recent clarificatory ruling in the Court of Protection has provided a helpful précis of the law on derogation from the European Convention on Human Rights, says Alison Harvey.
In Liberty, equality, the Court of Protection and the coronavirus I wrote about the case of BP v Surrey County Council and RP  EWCOP 17 in which I was instructed by Bison Solicitors acting for BP through FP, his daughter and ligation friend, to challenge the lockdown in his care home, which resulted in the prohibition on visits from family members and from a mental capacity assessor. BP’s care home had shut its doors shortly before government-imposed lockdown on 23 March 2020.
We applied for permission to appeal to the Court of Appeal because of paragraph 27 of the judgment, which, we said, arguably implied, wrongly, that a judge can derogate from the European Convention on Human Rights. It was subsequently read in that way by some commentators on the judgment, on twitter, in conferences and on the blog of the European Journal of International Law. We relied on Article 15(3) of the Convention:
Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed.
The point, we argued, was of importance not only because it was likely to arise in other cases in the UK context of the coronavirus, but because Article 15 considerations arise in cases of grave importance, such as national security cases, and also in States parties to the European Convention on Human Rights in which the judiciary is not free from influence and might come under pressure to derogate.
The respondent, represented by Scott Storey of counsel, did not dissent from our interpretation of Article 15(3). Nor, it transpired, did the Judge, who determined that the best way to deal with the matter, rather than an appeal, was to issue a clarificatory reported judgment. This is BP v Surrey County Council and RP  EWCOP 22 and it gives a helpful précis of the law on derogation.
In the short time between the two hearings, events had moved on. BP had fallen ill and consideration had been given to whether he should be hospitalised. The visiting regime the Judge had ordered at the previous hearing had been put in place and the family’s conclusion, from its observation at visits, was that, even when he bounced back from his illness, not thought to be coronavirus, BP had deteriorated. He had been prescribed antidepressants. In the light of these developments, the sedan respondent, RP, BP’s wife, wanted him to return home and, on the morning of the hearing, the respondent too agreed to this.
The newspapers have been full of the coronavirus death toll in care homes and Dr Oliver Lewis has argued powerfully for an emphasis on getting people out of care homes because of this. What I have also seen in recent weeks, and it appears I am not alone, are persons in care homes whose cases are being litigated in the Court of Protection, who are dying other than from coronavirus. The statistics bear out that there is an increase in such deaths. Is this a result of misdiagnosis, or are lockdown and isolation taking their toll? In this case, Hayden J held:
“it is ultimately a balance between a comprehensive assessment of BP’s needs and a recognition that his best interests now lie in a return home as soon as possible.”
Is it time to go home? There may be family members and friends, who did not feel that they could take on the responsibility of long-term care who, in the circumstances of lockdown are in a position to look after ageing relatives and thus get them home. This will be more complicated in cases where a standard authorisation for the derivation of liberty is in place, but it is to be hoped that, as in BP’s case, the Court of Protection will be responsive to these applications.
The judgment contains a strong statement in support of the feasibility of remote assessments, which is in line with guidance note Additional Guidance for judges and practitioners arising from COVID-19 of 18 March 2020, issued by the Judge, Hayden J, in his capacity as Vice President of the Court of Protection. As set out in my earlier article, our case was that a remote assessment for BP was not feasible because of the communication problems resulting from a combination of his dementia and his disability. The doctor who had been identified to carry out the assessment had declined to attempt it remotely. The matter was not a live issue in the proceedings, because BP will be able to be assessed in person at home, but it is of concern that the judgment of the medical professional, a consultant psychiatrist, who had assessed BP previously as to the feasibility of remote assessment, was not accepted.
While this article was in preparation my colleague, David Gardner, drew to my attention “Litigation Friends or Foes? Representation of ‘P’ before the Court of Protection” in the Medical Law Review, Vol. 24, Issue 3, August 2016, Pages 333–359, by Alexander Ruck Keene, Peter Barlett and Neil Allen. I commend it to all practitioners in the field. I consider that it is apparent from both judgments in BP that FP, as her father’s litigation friend, exemplified the approach for which the authors advocate, putting the protected person, and what they would have wished, front and centre.
I am grateful to my instructing solicitors, Bison Solicitors (Stephanie Oxley , Bethany Waldron and Kate Churchill). I also thank my colleagues Laura Davidson and Ian Brownhill, and Amanda Weston QC and Alexander Ruck Keene, and my former colleague Kartik Raj of Human Rights Watch for acting as sounding boards for me to think through the possible implications of the first judgment. For those who wish better to understand which member States are derogating from the European Convention on Human Rights in context of the coronavirus pandemic, and the case for and against derogation, I recommend the recording of the seminar Human Rights in the time of coronavirus: does England's lockdown violate human rights' law? A joint venture between the universities of Birmingham, Leicester and Liverpool ant the Hertie School in Berlin. I found the presentations by Professor Başak Çalı of the Hertie School, and of Drs Natasa Mavronicola and Alan Greene of the University of Birmingham particularly illuminating.
No5 Barristers’ Chambers’ Court of Protection team produced a podcast on 24 April 2020.