Covid must not be used as an excuse for undermining the rights of some of the most vulnerable in our community.
There has been a considerable amount of media focus on the difficulties of visiting of those residing in care homes during this pandemic. News has often focused on the scandal of people being transferred from hospitals to care homes without adequate testing for Covid-19 as well as families not being able to visit their loved ones.
Everyone has the right to respect for his private and family life, his home and his correspondence which is a ‘qualified right’ under Article 8 of the European Convention on Human Rights. This right can only be interfered with if the proposed action is in ‘accordance with the law’ and ‘proportionate’.
Mr Justice Hayden, the Vice President of the Court of Protection helpfully reinforced the legal situation about visiting in a letter he wrote on the 15th October:
“Of particular concern to us, in the Court of Protection, is the impact the present (visiting) arrangements may have on elderly people living in Care Homes. The extent to which this group has suffered during the course of the pandemic public health crisis is well known and documented.”
The Health protection (Coronavirus, Local COVID-19 Alert Level) (Very High) (England) Regulations 2020 (SI 2020/1105). Schedule 2 specifies the areas to which the regulations apply.
Schedule 1, Tier 3 restrictions Part 1, section 5 provides: Exceptions in relation to indoor gatherings:
Exception 2: visiting persons receiving treatment etc (3) Exception 2 is that the person concerned (“P”) is visiting a person (“V”) receiving treatment in a hospital or staying in a hospice or care home, or is accompanying V to a medical appointment and P is— (a) a member of V’s household, (b) a close family member of V, or (c) a friend of V
This provision permits contact with relatives ‘staying’ in Care Homes, under the same arrangements presently assessed as Covid-19 compliant. It will undoubtedly be the case that the actual arrangements will have to be tailored to the particular individual and the circumstances within the home, during the course of what we have now recognised to be the second wave of the pandemic. What is important to emphasise is that these arrangements have been identified within the Regulations made by the Secretary of State and are therefore lawful.”
Peter Edwards Law specialises in representing and supporting those who are being deprived of their liberty in hospitals and care homes. A critical, and arguably central, part of that representation involves visiting clients deprived of their liberty at the care home to ascertain their ‘wishes and feelings’ and establish if they should exercise their human right to challenge their detention.
As professionals have also found it very difficult to visit those living in care homes. The term “professionals” in this sense also includes independent advocates, best interests’ assessors, social workers and doctors. Much can be gained from visiting the client face to face, as it often enables discussions to be had with experienced staff and facilitate the building of relationships.
During this pandemic, where it has been appropriate to pursue an appeal to the Court of Protection, we have done our best to ensure that those living in care homes are as involved in the court proceedings as they would be, if we had been able to visit them.
The legal challenges often relate to whether the person in the care home is residing in the most suitable place for them.
Where it is possible, we have arranged “FaceTime” or “Zoom” meetings with our clients to find out how they feel about where they live and what their wishes are. Even though a person may lack capacity (not understanding consequences of decisions) they may well be able to let us know how they feel about where they are, and where they would prefer to be. Skilful listening is a very important part of what we do.
Some care homes are not able to facilitate video calls with residents. Also, video or telephone calls are not always practicable ways of communicating with clients with complex mental health conditions or learning difficulties.
THE WAY WE WORK WITH IMCAs
In some cases, we have been simply unable to communicate with clients during the pandemic. We therefore have had to adopt other methods to ascertain our clients ‘wishes and feelings’, including requesting up to date care home records and speaking with staff via telephone. Crucial allies in this are the independent advocates, IMCAs. It is often they who initially identify that the person is not objecting to where they are. Their contact with the person can be a key component to our understanding the client’s ‘wishes and feelings’.
We are very sensitive to the pressures faced by those working in care homes throughout this pandemic but a person’s human rights under Article 5(4) of the Convention cannot not be denied. This states:
‘Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful’.
As Sir Anthony Hayden has helpfully put it:
“It was expressed to me […] that there appear to be some who believe that careful adherence to proper legal process and appropriate authorisation may now, at times, be required to give way to other pressing welfare priorities. I understand how this view might take hold in establishments battling to bring calm and reassurance to intensely distressed people, both in the Care Homes and within their wider families. It is important, however, that I signal that whilst I am sympathetic to the pressures, I am very clear that any such view is entirely misconceived.
The deprivation of liberty of any individual in a democratic society, holding fast to the rule of law, will always require appropriate authorisation. Nothing has changed.
The Mental Capacity Act, the Court of Protection Rules and the fundamental rights and freedoms which underpin them are indispensable safeguards to the frail and vulnerable.”
In certain circumstances, and with permission from the care home and subject to our own stringent risk assessments, we have recently been able to undertake some face-to-face visits. These visits are only requested where remote visits have been unsuccessful. All government guidelines have been adhered to and full PPE has been worn to protect all involved.
I undertook a visit to Ms D at a care home on the Wirral as her mental health condition did not permit a remote attendance at that time. I was provided with full PPE and social distancing was maintained. Ms D was grateful to me for coming to see her in person, particularly as she did not have any family or friends to visit her.
Having visited some care homes during this pandemic, I have observed first-hand the impact this virus has had on some of the most vulnerable members of our community and the selfless nature of those caring for them on a day-to-day basis.
I am grateful to be able to visit some of these residents and discuss such sensitive and critical topics with them. However, I remain acutely aware that those same residents are not only being deprived of their liberty, but also the right to see those they love most.
Whilst this pandemic has impacted on so many, the impact on those residing unhappily in care homes must not and cannot be underestimated. Their voice must be heard and their rights upheld. The applies especially to those who are unhappy where they are.