Dying at Home: A Fundamental Right
VE v AO and Others  EWCOP 23 https://www.bailii.org/ew/cases/EWCOP/2020/23.html
In a very important decision, bearing in mind the current crisis, the High Court has confirmed that the opportunity to die at home is a fundamental part of the right to a home and family life.
P, in this case was diagnosed with terminal cancer in December 2019, she was admitted to hospital in January. Concerned about the care of her mother, the applicant, VE, asked for P to be allowed to leave her care home and to live with her. A hearing on 20 March found that it was in her best interests to move to live with VE, with a further hearing listed to ascertain the practicalities. It was estimated that VE had between a few weeks and 3-6 months to live.
Unfortunately, 20 March was also the same day that the government moved into the lockdown phase of the pandemic response, preventing families from visiting care homes except in exceptional circumstances. P was discharged from hospital to her original care home on 23 March and had no visits from her family from that date until 20 April. There were concerns about the presence of Covid-19 within the home, its presence was suspected, but unconfirmed due to the lack of testing. As a result, AO’s contraction of the virus could not be definitively prevented within the home, it was also unlikely that she would be admitted to hospital if she did. It was accepted that P lacked capacity to make the decision as to where she lives.
Mrs Justice Lieven made comparison to the recent case of BP v Surrey CC 2020 EWCOP 17. In that case, Hayden J had decided that the government’s pandemic guidelines on contact between families and care home residents were proportionate in light of these extraordinary circumstances. However, Lieven J stressed that this case was materially different due to the fact that VE is terminally ill. She commented:
“The ability to die with one’s family and loved ones seems to me to be one of the most fundamental parts of any right to private or family life. That how a person dies can fall within the ambit of article 8 is now well established, … it would seem to me self-evident that such a decision by the state that prevents someone with a terminal disease from living with their family, must require a particularly high degree of justification under article 8(2).”
In her conclusions, Lieven J found that it was in P’s best interests to live with VE. She was content that the appropriate palliative care could be put in place, and found that P would likely wish to be with her family at this time, an assessment of her likely wishes and feelings being based upon her close relationship with her daughter, and her decision to move to the UK to live with her some years ago.
In the event, P moved on 20 April, and sadly passed away on 22 April, in the company of her family.
At these difficult times, where we know that residents of care homes are dying at an alarming rate, decisions such as this will be a vital boon to families and residents who wish to be together and confirms that the manner of one’s death is a vital part of their life. However, the decisions may be slightly confined to its facts, Lieven J was keen to stress that she was simply assessing what was in P’s best interests. What was not considered was the impact of spreading Covid-19 on either P or VE and her family, therefore a different result may be reached where Covid-19 itself is the operating cause of the terminal illness.
BP Part 2 – Striking A Balance
BP v Surrey County Council and RP  EWCOP 22 https://www.bailii.org/ew/cases/EWCOP/2020/22.html
Following Judgment handed down on 25 March 2020 refusing the application made by BP through his litigation friend FP (his daughter). This is a second decision regarding BP that accedes to the substance of the original application. The application brought by BP was that it was in his best interests to return home to live with FP given the new restrictions imposed on visitors attending at the care home.
BP is an 83-year-old man who suffers from Alzheimer’s disease and due to his deafness he communicates through a communication board. BP has a high level of capacity in respect of many aspects of his life, but lacks insight into his own care needs and there is a high risk of misadventure. Updated capacity evidence would have been desirable, however the assessor was not prepared to undertake an assessment in this case on a virtual basis. No criticism was made of that approach, nor of the care home’s in rejecting the suggestion that he could attend in person, having taken protective measures.
Hayden J noted in the first instance that there were “fundamental difficulties with FP’s [care] 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.”
So what changed? In early April, BP became very low in mood to the extent of not eating, sleeping much more than usual and becoming unresponsive. BP became unwell and displayed minor symptoms of Covid-19 but recovered quickly and it was thought to be an unrelated illness with no reported cases in the care home. Whilst he remained at the Home, FP visited by sitting outside the window and communicating that way. It was accepted though by all that BP could not fully understand why social distancing measures were in place and FP suggested BP felt he was being punished for some reason. This, Hayden J noted, accorded with the capacity evidence pertaining to BP’s limited insight into his health problems.
When the case returned to court, FP was able identify carers who could assist BP (it having been plainly unrealistic that FP could provide the 24/7 care BP requires). There would also be an assessment of BP’s needs within the home and the promise of adjustments if required.
Hayden J, striking the balance of risk and presumably applying to the particular facts BP’s Convention rights, his overwhelming historic wishes and feelings and the impact of the ‘lockdown’ upon his mental and physical health, acceded to the application and BP will now live with FP.
This case is a perfect example of the balance of rights. Risk to health is always dynamic but especially during this health crisis. P’s Convention rights must always be considered as both a positive and negative obligation – i.e. to protect life but also to ensure liberty and security. The balance in this case tipped and living with his daughter was the least restrictive option in his best interests.
There are of course wider considerations in this current climate as to the general use of terms such as ‘social distancing’ rather than a term that could be more easily understood such as ‘physical separation’ for those with intellectual disability. It is also worth noting the positivity with which virtual capacity assessments are regarded and where possible these should be conducted.