Judge rules terminally ill woman could leave care home to live with family despite COVID-19 restrictions

A Court of Protection judge has ruled that a dying woman should be removed from a care home where Covid-19 could have been present to spend her final days with her family, despite pandemic restrictions.

Mrs Justice Lieven made her ruling in VE v AO & Ors [2020] EWCOP 23 on 20 April given the urgency of the situation, but reserved her reasons until this week.

AO was moved from the care home that day to her daughter VE’s house, but died on 22 April.

She had had terminal ovarian cancer and the judge noted it was impossible to know whether she had additionally contracted COVID-19.

The case was brought by VE by her litigation friend, the Official Solicitor, with the Royal Borough of Greenwich and South East London Clinical Commissioning Group as respondents.

Lieven J said the application was for an order that it was in AO's best interests to be allowed to leave the care home, and live with her daughter and her family.

She said: “The issue before me was originally framed as a challenge to the deprivation of AO's liberty under the Mental Capacity Act 2005 and thus a case concerning article 5 ECHR.

“However, as the matter progressed it became increasingly clear that it was really a case about AO's best interests under the MCA and the proportionality of the interference in her family life under article 8 ECHR.”

DJ Ralton made an order in September 2010 that it was in AO's best interests to live at a care home, but to have contact with VE.

While visiting VE over Christmas 2019 a medical examination diagnosed AO with advanced terminal ovarian cancer.

In March 2020 VE issued an application for personal welfare orders seeking AO's discharge from hospital.

Doctors at King’s College Hospital, where AO was treated, had found her to lack capacity to decide where she should live.

Later that month DDJ Kaufman made an order that it was in AO's best interests to be discharged from the hospital to the care home and that evidence should be produced as to AO's wishes, and the support that VE and her children could give her.

She was discharged back to the care home but by then restrictions around the COVID-19 pandemic had taken effect and while it was not thought to be present in the care home, it was impossible for its management to be certain.

Evidence from the CCG said it was experienced in giving end-of-life care in people’s homes and could do so for AO.

Lieven J said her ruling was “solely about what is in AO's best interests in circumstances where she had terminal cancer and her family wanted her to die at home with them” and that she had started “with the basic proposition that most people would strongly wish to die with their family around them”.

She noted: “Nobody argued before me that I should not allow AO to leave [the care home] because of the risk of COVID-19, or that any possible public interest in not allowing her to move outweighed her best interests, or her article 8 right.”

The judge said there was strong evidence that AO had enjoyed a close and loving relationship with VE and her family while in the care home and “if AO was capable of expressing her wishes and feelings it is highly likely that she would say that she wished to leave [the care home] and spend the time left to her with VE”.

She found AO could be properly cared for in VE’s home and that the CCG could commission palliative care.

It was unclear whether anyone at the care home had contracted COVID-19 and the judge said that under the Health Protection (Coronavirus Restriction) Regulations 2020 for a family member to collect AO from the care home would be “to provide assistance to a vulnerable person and thus falls within that sub-regulation, it would in any event also accord with the order of the court."

Mark Smulian