You may or may not have seen the decision on the BP v Surrey County Council case discussing contact with loved ones during the coronavirus pandemic. If you haven’t seen it, it is here https://www.bailii.org/ew/cases/EWCOP/2020/17.html
This raised an issue that had been nagging me, and I alluded to it in my previous posts about care home responses. Specifically, whilst restricting individual’s right to private and family life can be lawful in the interests of public health, this still has to be necessary and proportionate. So blanket bans on all contact visits by care homes might be vulnerable to challenge.
As discussed in this case, it isn’t as simple as just instigating a policy that no visits are allowed during the pandemic. Because for some people, these visits are of vital importance.
So instead, care homes should be asking themselves whether what they are doing is necessary and proportionate. What this case demonstrates is that a ban on visits might be necessary and proportionate, but only if ways of enabling contact safely have been fully explored. Examples that have already been discussed by courts include visits in outdoor space, communicating through windows and use of technology such as telephones and video calling. Because just because it isn’t safe for people to visit within the home, doesn’t mean that they shouldn’t be enabled to have other ways of meaningfully contacting their families and having enjoyment from this the same way the rest of us do. (Where would we be without social media, mobile phones, Skype and Zoom right now?)
It is important to remember that the Coronavirus Act is a temporary piece of legislation that allows only certain specific restrictions to be in place. It must not be used to arbitrarily restrict human rights anymore than is necessary. To do so is both unlawful and blooming dangerous in terms of its societal implications. So care homes and social care staff need to be cautious, and family members should watch out for abuses.
And I am by no means suggesting that family members should insist on barging into care homes at their leisure. To do so would be in breach of the Coronavirus regulations, as well as likely to be some form of affray or breach of the peace. So don’t do that. I mean it, don’t. And if you do that, please don’t say I told you to. Because I didn’t, I really didn’t!
But there will be exceptions, where lack of contact with family members will have a significant impact on residents in care homes. And there will be end of life situations where having final contact with loved ones will be so important to a family.
In those situations, proportionality comes in to play. I know that in hospitals family visits might not be taking place in the interests of public health. But care homes are different, they are homes for all intents and purposes. And if there is a safe way that contact can take place in the most pressing of circumstances, then it will be a high risk to not allow this.
It would seem to be even higher risk to not even give any thought or consideration to these cases.
I would like to encourage reasonableness here. The last thing we need right now is more conflict, and more panic. But asking the right questions, discussing options, communicating between care homes, families and social care staff would appear to be in order. And that way if contact can’t be supported, there will be piece of mind for everyone concerned that they tried their hardest to be kind and empathetic in these trying times. Because lawfulness of decisions is important, but the law doesn’t exist in a vacuum, and it is nice when the law and justice and fairness and kindness can exist together.
In case it isn’t obvious from the fact I still haven’t identified the authority I work for, the views expressed on this blog are my own opinion and not the opinion of that local authority