In VE v AO & the Royal Borough of Greenwich & South East London CCG  EWCOP 23, when Lieven J ordered the transfer of P from a care home to her daughter's home prior to the completion of full assessments, she concluded that "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".
Hayden J, the Vice-President of the Court of Protection, recently wrote to all Directors of Social Services. In the letter, he emphasised that the principles of the Mental Capacity Act 2005 promote autonomy and guard liberty. He stated:
"It requires to be said, in terms which permit of no ambiguity, that these principles have, if anything, enhanced importance in times of national emergency. Deprivation of liberty will always require strong and well-reasoned justification. The obligation to keep this in review has not diminished in any way in the present circumstances."
In BP v Surrey CC  EWCOP 17, Hayden J had held that the lockdown restrictions applied at a care home were a justified derogation from Article 5 because there was a public emergency within the ambit of Article 15 in a situation where BP had no new medical needs. Subsequently, in BP v Surrey CC  EWCOP 22, Hayden J approved a move of BP to his daughter's home.
In VE, Lieven J considered whether it was in the best interests of a terminally ill woman to leave the care home where she was residing and move to live with her daughter.
She felt able to make an immediate order because the CCG had given evidence that palliative care could be commissioned.
What the judgment makes clear is that the court will not require the actual commissioning of care or an approved care plan where there is an urgent need, in light of the lockdown, to revive family contact.
The court must balance the importance of dying in the place P wants with the importance of ensuring P has access to medical support for symptom and pain management.
The lockdown will not be used as a way of diluting P's convention rights and it will not be used to stymie best interest decisions.
Michael Paget acted on behalf of the Royal Borough of Greenwich.