The Covid-19 lockdown and quarantine restrictions are causing real practical problems for those who have terminally ill family members. What can you do if you want to visit such a relative in England, but you live abroad and are bound to follow quarantine rules if you try to visit?
This is the real life and death issue facing a family whose billionaire patriarch is dying here in hospital. Justice Hayden is currently considering just this situation in the Court of Protection. This is the court that decides matters relating to a person who no longer has the mental capacity to take decisions.
It is understood that the court has granted consent for such relatives who live abroad to visit the dying man who we understand has only weeks to live. In many such cases there will be a difference in opinion between family members as to whether a visit should go ahead and this case is no different. Some of his brothers agree the visits should take place, but one of his adult children has objected because of risk of Covid-19 infection.
Justice Hayden has ruled one of the man’s brothers can break the quarantine rules and spend 30 minutes with him and two adult nephews can each visit for five minutes.All three visitors will need to take Covid-19 tests and wear personal protective clothing. The man has an illness which means he is unable to take decisions for himself and the court's conclusion is the visits will be in his best interests and in line with health service regulations.
This case typifies the frequent battles being fought in the Court of Protection between family members where a, usually elderly, parent has lost capacity to make decisions for themselves. In England and Wales every capacitous adult can appoint an attorney or attorneys under a Lasting Power of Attorney to act as decision-makers in relation to health and welfare issues when the person has lost their mental capacity. There have been a handful of cases recently in the Court of Protection concerning Covid-19 vaccinations for those who cannot give consent and whose family members object to the vaccine. In all these cases, the court has to weigh up what would be in the best interests of the person themselves and not what may be perceived to be in the best interests of the other relatives or wider family.
The judge will be carefully considering what would have been the billionaire’s wishes had he been able to decide for himself. Under the Code of Practice to the Mental Capacity Act 2005, this is known as the ‘best interests’ principle. The act states that “an act done, or decision made, for or on behalf of a person who lacks capacity must be done, or made, in his best interests.” Such best interests are then determined by encouraging the person's participation in the decision, identifying all the relevant circumstances, finding out the person’s views, avoiding discrimination, assessing whether the person may regain their capacity to take that decision and consulting other people for their views about the person’s best interests and to see if they have any information about the person’s wishes and feelings, beliefs and values.
The court will then weigh the evidence and decide whether breaking the quarantine rules to allow visits to take place would be in the man's best interests, bearing in mind the short time he has left and the impact that visit from his relatives will have on his wellbeing. In the vaccination cases mentioned above, the court weighed up the evidence and concluded that, where someone is resident in a care home and vulnerable to infection, his or her best interests are served by having the vaccination.
If the man had appointed an attorney to act for him in respect of health and welfare decisions, the attorney’s views would be taken into account and carry some weight in the decision about whether visitors should be permitted. Legal professionals should take the time to explore with clients what they would want to happen in such a situation. The client can make a statement of wishes, for example, alongside their Lasting Power of Attorney and this will help the attorney to understand what the client really wants, but can also be used to request the attorney to consult with particular family members and/or friends to help ensure that a rounded decision is made that is reflective, as far as possible, of the client's wishes and mentality on certain issues.
Note, however, that being consulted is not being asked to approve a decision. It would remain the case that that attorney could not prevent a relative or friend visiting if the court decided that the patient's best interests would be served by having such visits. The same would be true of a medical practitioner barring visitors unless it was shown to be in the patient’s best interests. The Court of Protection is the ultimate arbiter in such cases.
With the ongoing pandemic, this case it is a timely reminder to ensure that you have a decision-maker in place in the form of an attorney under a Lasting Power of Attorney for health and welfare and a written statement of wishes as to how you want to be treated in these types of difficult situation.