If your relative lacks capacity to make decisions about who visits them, and the family do not agree with the arrangements, the local authority can only impose restrictions if they obtain authority through the Court of Protection. This was highlighted in the recent case of SR v A Local Authority & Anor  EWCOP 36. This case involved a devoted couple who had been married for 58 years. The wife developed late onset Alzheimer’s disease that was moderate to severe in nature. She lacked mental capacity to make decisions in relation to her care and contact arrangements. The wife initially attended a day care centre whilst living at home with the husband. However, in November 2016, the local authority formed the view that she should remain in the care home full time. This was due to concerns that she may be at risk of harm in her husband’s sole care because of his expressed views on euthanasia.
In May 2017, the local authority unilaterally imposed restrictions on the husband’s ability to take his wife away from the care home unaccompanied by a member of staff. Even though the local authority had no authority to restrict contact in this way, the husband complied with the restrictions, save on one occasion he removed the wife temporarily from the care home due to a bereavement at the home and the care home alerted police who sent in an armed response. The local authority subsequently applied for authority to restrict the husband’s contact. The application was rejected by the court on the basis that it was neither justifiable, proportionate nor necessary. The court was of the view that the local authority had failed to undertake a detailed examination of the comments made by the husband, and any risks posed to the wife. Although it was accepted by the court that the husband’s comments did give rise to a justifiable concern on the part of the professionals, the husband had been consistent in stating that he would never hurt his wife. This was also supported by the fact that the wife had lived with the husband for three months and subsequently had unsupervised contact with him for six months, after he made the comments regarding euthanasia. The wife remained safe from harm during these periods. The court made it clear that if the husband wanted less restrictive contact with his wife going forward, he would need to communicate openly with the professionals about how the arrangements would be managed and what his backup plan would be if the wife became upset or behaved in an unpredictable way whilst in his sole care.
The above case clearly illustrates that when contact (or care) arrangements for someone lacking capacity cannot be agreed with the family, matters should be referred to the Court of Protection, so that the court can decide whether any proposed restrictions are appropriate and proportionate in the circumstances.