The COVID-19 pandemic represents a public emergency which is threatening the life of the nation. A High Court judge wrote those words in reaching the momentous conclusion that, whilst the crisis persists, derogation from certain fundamental human rights is not merely justified, but essential.
The judge gave his ruling in the case of a profoundly deaf dementia sufferer in his 80s who was living in a care home which, in common with almost all such facilities, has been closed to visitors during the pandemic. His daughter lodged an emergency application with a view to achieving his discharge from the care home and his return home with an appropriate package of support. Members of his family had previously visited him very frequently – his daughter almost every day – and there was no doubt that the embargo had had a seismic impact on his quality of life.
His right to liberty and personal security, enshrined in Article 5 of the European Convention on Human Rights (ECHR), together with his Article 8 right to respect for his home and family life, were clearly engaged and the judge emphasised that there was a need for heightened judicial vigilance to ensure that his fundamental rights and those of others in a similar position were not eclipsed by the COVID-19 crisis.
However, Article 15 of the ECHR permits signatory states to derogate from Articles 5 and 8 if such a course is strictly required in times of war or other public emergency threatening the life of the nation. After much reflection, the judge ruled that the pandemic represented just such an emergency and that a derogation was justified. He noted that no judge of his generation could ever have expected to have to reach such a conclusion.
Fundamental rights and freedoms are required to be protected as vigilantly at times of crisis as in less challenging circumstances. Given the particular threat that COVID-19 poses to the lives of the elderly and those with pre-existing medical conditions, however, the derogation was essential. The judge emphasised that it would only continue for so long as the unprecedented public health crisis persists and that notification of his decision would be sent to the Council of Europe.
Returning to the facts of the case, the judge noted that the man – who was privately funding his stay in the care home – was adamant that he does not have dementia and that he wished to return home. His family was divided as to where his best interests lay and his daughter was fulsome in her praise of the kind and attentive care he had received from the care home's staff.
Every effort had been made to meet the family's concerns amidst the stark realities of the crisis. A plan had been formulated to educate the man, who was able to use a communication board, to the world of Skype and instant messaging. Members of his family would also be permitted, by arrangement, to wave at him through his bedroom window. The judge was satisfied that, although such arrangements would require time and creativity, they represented a proportionate way forward which respected the man's dignity and would meet his particular needs so far as possible. He opened the way for a doctor to conduct Skype or FaceTime interviews with the man in order to assess his capacity to make important decisions for himself.