NHS Trust changes its Coronavirus visits policy following legal challenge
Our very own Stephanie Oxley has been representing the mother of a young man detained under s.3 Mental Health Act 1983 in a hospital run by Hertfordshire Partnership University NHS Foundation Trust. The young man has autism, learning disabilities and anxiety. He was detained in the hospital over 2 years ago. The local authority is in the process of arranging a community placement for him, and all parties are working for him to be discharged in the next month.
The young man’s parents have visited him twice a week in hospital since he was admitted, some 27 months ago. Invoking the Coronavirus pandemic, on 15 March 2020, the Trust banned the parents from visiting their son, who has been assessed as having capacity to make decisions about contact.
Since then, the young man has been able to telephone his parents roughly twice a week. He had not previously communicated with his parents via telephone. The parents noticed that their son found it difficult to communicate with them on the phone. They believed that their son was becoming distressed by not having any face-to-face contact and that his behaviour was becoming more agitated and challenging, such that it may jeopardise him being discharged into the community. Via the telephone they could not see his face to gauge how he was feeling and provide emotional support and reassurance to him.
The Trust refused to arrange other means of communication, telling the parents that if they bought a mobile phone for their son, they would let him use it. The parents cannot afford to buy themselves or their son smart phones or tablets.
On 1 April 2020, Stephanie instructed Dr Oliver Lewis of Doughty Street Chambers to assist with challenging the Trust’s policy and guidance on behalf of her client. On 2 April 2020, a letter before claim was sent to the Trust informing it that an application for judicial review would be made unless the Trust either (i) provided the means to have virtual communications or (ii) allowed on-site visits with a 2-meter distance.
It was argued that the Trust’s policy of banning everything but telephone-only communication
- breached the son’s and his parents’ rights under Article 8 European Convention on Human Rights (right to respect for private and family life, home and correspondence) because the policy was disproportionate to achieving the legitimate aim of reducing the risk of patients and staff being infected with Coronavirus; and
- indirectly discriminated against people with disabilities (in particular people with autism and/or learning disabilities), because it placed people at a particular disadvantage compared with people without disabilities, contrary to s.19 Equality Act 2010.
On 8 April 2020 – the 10th anniversary of the Equality Act 2010 – the Trust confirmed it will:
- provide the young man with an iPad set up for Skype and Zoom; and
- amend its policy on visits to reflect its duty to facilitate the use of online communication between patients and their relatives.
Although it was argued that the detaining authority is under a positive duty to supply the smart phone or a tablet to both the young man and his parents so as to facilitate contact between them, the Trust has refused to provide the parents with equipment. In the meantime, the parents have borrowed an iPhone from a relative to be able to use Skype and Zoom.
Commenting on the litigation, the parents said, “Although online contact is not the same as visiting our son, we’re pleased that we will be able to see each other virtually, and we hope that this will help his wellbeing and mental health. We hope that other families do not have to take legal action before NHS Trusts amend their policies to take account of the needs of loved ones with autism or learning disabilities.”
Dr Oliver Lewis is clerked by Emily Norman: [email protected].