Case Summary: Davies v Wigan Council & Anor [2020] EWCOP 60

How should care homes be managing the contact needs of patients during the Coronavirus pandemic?

In this moving Judgement by Mr Justice Hayden, he considers the lawfulness of contact restrictions placed upon care home residents during the coronavirus pandemic and how the Coronavirus Regulations regarding contact should be interpreted.

Practical Impact

This case confirms that COVID–secure contact for persons residing at care homes is lawful under the Coronavirus Regulations and that care homes need to consider the contact needs of a person on an individual basis and be innovative and forward thinking in developing ways to meet those needs. 

For further information about this case, please contact Ruth Atkinson-Wilks, Associate.

You can read the full case summary below.

Davies v Wigan Council & Anor [2020] EWCOP 60

Summary

The case concerns Mrs Michelle Davies, who is 58 years of age. In 2018, Mrs Davies suffered a sudden brain haemorrhage and stroke which left her with significant brain damage. Following 11 months in a hospital, Mrs Davies moved to a specialist brain injury neuro-rehabilitation unit, BL Lodge. She was residing at BL Lodge when the Coronavirus pandemic started in March 2020.

The judgment portrays a detailed and touching description of Mrs Davies’ life before her stroke. She was a popular, public-spirited lady with many friends. She had a long, full and happy marriage to her husband, Dr John Davies, whom she met when she was 17 and they had a son, who is now 33. At BL Lodge, Mrs Davies’ contact visits were crucial to her well-being and rehabilitation. Prior to the pandemic, Dr Davies used to visit Mrs Davies for 3-6 hours each day, her son 2-3 times a week and there was a visiting schedule for Mrs Davies’ many friends and other family members.

When the pandemic started in March 2020 and the first lockdown hit, contact between Mrs Davies and her family and friends was significantly reduced to calls on a smartphone. For a short period in July, Mrs Davies was able to have visits from her husband and son twice a week for 30 minutes, albeit socially distanced and with masks.  However, these visits ended on 31 July when the Care Home, located in Greater Manchester, was put back into restrictions, and contact returned back to four 30 minute video calls a week.

Concerned about the impact the contact restrictions were having on his wife, Dr Davies as her litigation friend, made a section 21a application challenging the standard authorisation of the her deprivation of liberty at BL Lodge.

By the time the application was considered by the Court at the end of November, Mrs Davies had been moved to a new care home, where she was able to have window contact with her husband and son, her friends and other family members. The Court ordered for these to continue on a twice weekly basis until the next hearing.

In the judgement, Mr Justice Hayden provides a useful overview of the Coronavirus Regulations with regards to contact at care homes. He references his open letters published in October and November which help clarify these Regulations and confirms that contact with relatives staying in care homes is lawful under the Regulations if the arrangements for such visits are COVID–secure. 

Mr Justice Hayden goes onto to confirm in this judgment that contact needs will be unique to each individual and that a person’s contact plan must be evaluated on the basis of their individual’s needs and not on a generic basis. He confirms that care homes should be forward thinking and creative in identifying ways to facilitate contact.

“It is recognised that receiving visitors is an important part of care home life and that maintaining some opportunities for visiting to take place is critical for supporting the health and wellbeing of residents and their relationships with friends and family. The guidance sets out measures that can be put in place to provide COVID-secure opportunities for families to meet using visiting arrangements such as substantial screens, visiting pods, and window visits. Emphasis is correctly, in my view, placed on the importance of Care Home providers, families and local professionals working together to find the right balance between the benefits of visiting on wellbeing and quality of life, and the risk of transmission of COVID-19 to social care staff and vulnerable residents as we enter national restrictions.

Care homes vary very widely each is unique in its physical layout, surrounding environment and facilities.  Residents vary in their needs, health and current wellbeing. Providers will usually be best placed to decide how to organise visits in their own setting in a way that meets the needs of their residents individually and collectively. The individual resident, their views, their needs and wellbeing are an important focus of decisions around visiting."

Other Key Findings

Mr Justice Hayden agreed to withhold anonymity from Mrs Davies after it was argued that Mrs Davies would have wished for the litigation to achieve wider benefit to others and she was more likely to achieve this by being identified. It was concluded that this had sufficient weight to indicate the balance of competing interests against anonymity.