BP v Surrey County Council & Anor  EWCOP 22 is the second decision concerning an 83 year old man, BP. It follows the earlier one given on 25 March 2020, which represented the first time that the Court of Protection had to consider the impact of COVID-19 in the care home setting. At the earlier hearing, Hayden J had refused the application made by BP’s daughter and litigation friend (FP), for a declaration that it was in his best interests to return home and in to her care. At that stage, Hayden J had identified that there
were fundamental difficulties with FP’s plan. FP had been unable, due to the present health crisis, to identify any package of professional support. BP’s lack of understanding of his own health issues occasionally causes him to overestimate his practical abilities and, as such, puts him in physical danger. Plainly FP would not have been able to care for and supervise her father in such circumstances for any length of time. BP’s wife, Mrs RP, did not, at that stage, support the plan.
However, and perhaps slightly surprisingly given the above, the matter came back before Hayden J on 17 April, by which agreement had been reached that:
BP would be able to move to his daughter’s care. This will require assessment of BP’s needs within his home and some adjustments to his accommodation. I have been told that it has been possible to identify carers who will assist FP. There was some debate as to how long this process would take but 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.
It appears that – thankfully – the care home was, at the time of the judgment, still COVID-19 free. The judgment also shows the (understandable) impact upon BP, and others in his position, of social distancing. At paragraph 6, Hayden J noted that all agreed that “BP has struggled to cope with or understand the social distancing policy which it has been necessary to implement. FP said that she believes her father thinks that he is being punished in some way. This, to my mind, reinforces the view of Dr Brett Du Toit that BP has little insight into his own health and his dementia. It is thought that the deprivation of contact with his family has triggered a depression. BP has been prescribed anti-depressant medication.” Neither the care home nor the family had tried to instigate video conferencing, because FP had attended (it appears) daily, to sit outside the French windows of her father’s room, communicating with him as best she could. The staff at the Care Home told FP that her father derived comfort from her visits, though FP was uncertain about this herself.
At the previous hearing, Hayden J had held that the outstanding assessment of capacity (required for purposes of the s.21A application) could be completed remotely. However,
8. On the 6th April 2020, Dr Babalola indicated that he was not prepared to assess BP’s capacity using remote means. The challenges presented by the potential arrangements are self-evident and I entirely understand why Dr Babalola felt uncomfortable. The Care Home was not prepared to accede to Dr Babalola’s suggestion that he attend and wear suitably protective clothing. I make no criticism of that decision indeed, it strikes me as entirely appropriate. The Care Home has remained Covid free (in so far as it is possible to be sure) thus, the risk was not to Dr Babalola from the residents but the risk he might have presented to them. In my Guidance, dated 19th March 2020, I addressed some of the concerns identified by the professions and observed the reality that for the time being many, perhaps most, capacity assessments would require to be undertaken remotely. I stated, “there is simply no alternative to this, though its general undesirability is manifest”. I further emphasised that with “careful and sensitive expertise” it should be possible to provide sufficient information. I specifically contemplated that video conferencing platforms were likely to play a part in this process as they now do in so many other spheres of life and human interaction. If BP had remained at the home it would have been necessary to instruct a different assessor. I remain of the view that creative use of the limited options available can deliver the information required to determine questions of capacity. It may be that experienced carers well known to P and with whom P is comfortable can play a part in facilitating the assessment. Family members may also play a significant role in the process. I am aware that in many areas of the country innovative and productive approaches of this kind are proving to be extremely effective.
Hayden J also took the opportunity to clarify observations that he had made in his earlier judgment about derogation from the ECHR, making clear that he had intended – and in fact – had notified the Government in order that they might decide whether to issue a notification of derogation.
That (assuming that all goes to plan) BP will be able to move to his daughter’s care (it appears, although it is not entirely clear, in his own home) is undoubtedly hugely significant for him, although the precise basis of the arrangement is specific to the facts of his case. Of broader significance – beyond the recognition of the impact of social distancing on individuals with dementia – is the reinforcement of the message by Hayden J that assessments (of capacity, but also other relevant assessments) will have to proceed, even if by increasingly pragmatic/creative methods.