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19th May 2020

COVID-19: Human Rights in Practice – an update on Mr P’s Liberty

This is an update on a previous article, which you can read here.

Mr Ps Liberty: An Update

When we learn about a court case, we are experiencing a snapshot in someone’s life.  And life, as is its habit, moves on. Our access to sharing the lives of the characters we have got to know in TV soaps is being hard hit: but – while being careful to remember that this isn’t drama but the life of a unique individual – we still can follow the twists and turns in the stories that come to court.

In April I wrote here about the case of Mr P, in a Court of Protection case, which you can read here.  He’s an elderly man diagnosed with Alzheimer’s disease, who is also profoundly deaf and communicates using a communication board.  As Covid-19 swept the country, his care home banned all unnecessary visits, to prevent infection.

The story so far

Mr P’s daughter was greatly worried at the huge change to her father’s lifestyle. He is described as a very sociable man, who has lived for his daily visits from loads of family and friends. He has never been happy in the care home: his dementia means that he lacks capacity to understand his care needs, and he has repeatedly said he wanted to live at home.  Quite rightly his care home, last year, had asked for and was given an authorisation under the deprivation of liberty safeguards (DoLS).

Earlier this year, as we all know, the intense effects for him of being deprived of his liberty were, because of Covid-19, no longer lessened by daily contact with his family: he had never learned to use Skype and could not hear the phone.  Because DoLS protects people’s rights by giving them the right to challenge an authorisation, his daughter FP (everyone in Court of Protection cases is usually only known by their initials, to protect their privacy) was able, on his behalf, to ask the Court to remove the DoLS authorisation and let him go home.

At that time, towards the end of March, a judge decided that, reluctantly, he could not agree to FP’s request. Everyone agreed to work together to introduce Mr P to internet video communication, and to do all they could to maintain meaningful contacts for him in this way.

Mr Ps story continues

The plans to teach Mr P to communicate online were well-meant but never really got started, largely because this daughter, FP, spent long periods of every day outside her father’s French windows communicating with him. Despite her visits, he seemed to regard the loss of his varied social life as a kind of punishment and began to show clear signs of depression. He was put on anti-depressants but remained sad and lost interest in life.

The family then all worried about his increasing misery. They began to agree with his daughter FP, that to stay in the care home was no longer proportionate or in his best interests.

So the case came back to court just over three weeks later on 17 April 2020, before the same judge: you can read what happened here.

What happened next?

On the morning of the formal hearing, his family and the lawyers all got together and worked out a feasible plan to enable FP to cope with the very onerous tasks of caring for her father and keeping him safe. This time they were able to identify some home care to help her; the lack of this had been at the heart of the judge’s decision in March that Mr P was safer where he was.  So, in a complete reversal from the earlier case, the judge now agreed completely with the family’s plan.  He does sound a bit worried, though, about how long the logistics may take, saying:

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.

Learning points

  • It’s a sign of strength, not weakness, to change your mind when the situation changes. For a highly personal range of reasons, Mr P’s mental health deteriorated drastically: this, luckily, made everyone more flexible in looking for ways to make him happier.
  • Nobody had anything but praise for his care home: clearly the staff had enabled him to lead his normal life and made all his visitors incredibly welcome. But the change in his daily life, caused by the pandemic, has weighed far more heavily on this individual than it would on many others. His deafness, for example, must be given the weight it deserves, as making this situation exceptionally hard for him. It must also be recognised as a ‘protected characteristic’, which means extra effort must be made to compensate for it in his care plan.
  • Best interests decisions, for people lacking capacity to make a necessary decision (such as where to live during a pandemic), must start from trying to do what the person wants and/or would want if they had capacity. This highly sociable and popular man failed to understand about social distancing, due to his dementia: it is really important to factor in the new elements of his depression and his feelings that he is being punished by having no visitors.
  • This of course isn’t a soap opera: it is the life of a person living with disabilities, where everyone wants what is best for him in a fast-changing and completely new situation. The risk for Mr P’s happiness is now the potential for delays to glue up the process of getting him home with an adequate care package. We can only hope that his situation – and those of people like him – don’t sit on someone’s desk in the ‘pending’ file.

 

 

*All information is correct at the time of publishing. Use of this material is subject to your acceptance of our terms and conditions.

Rachel Griffiths

Mental Capacity and Human Rights Specialist

Rachel has huge experience and knowledge in the area of Mental Capacity, including how to recognise deprivation of liberty, when and how to assess capacity and how to go about making decisions in someone’s best interests. She is nationally recognised as a leading voice with regards to Mental Capacity, and is involved with setting the agenda as well as providing advice and information about Mental Capacity. The information, guidance and support that Rachel provides helps to ensure that the way people work is within the law and recognises that the person using services is always at the centre of any decisions made. Read more

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