“Article 11 – Situations of risk and humanitarian emergencies States Parties shall take, in accordance with their obligations under international law, including international humanitarian law and international human rights law, all necessary measures to ensure the protection and safety of persons with disabilities in situations of risk, including situations of armed conflict, humanitarian emergencies and the occurrence of natural disasters.”
“101. The Court has consistently held that the responsibility of a State is engaged if a violation of one of the rights and freedoms defined in the Convention is the result of non-observance by that State of its obligation under Article 1 to secure those rights and freedoms in its domestic law to everyone within its jurisdiction (see, inter alia, Costello-Roberts v. the United Kingdom, judgment of25 March 1993 , Series A no. 247-C, p. 57, § 26, and Woś v. Poland (dec.), no. 22860/02, § 60, ECHR 2005-IV). Consequently, the Court has expressly found that Article 2 […] require the State not only to refrain from an active infringement by its representatives of the rights in question, but also to take appropriate steps to provide protection against an interference with those rights either by State agents or by private parties. 102. Having regard to this, the Court considers that Article 5 § 1, first sentence, of the Convention must equally be construed as laying down a positive obligation on the State to protect the liberty of its citizens. Any conclusion to the effect that this was not the case would not only be inconsistent with the Court’s case-law, notably under Articles 2, 3 and 8 of the Convention, it would also leave a sizeable gap in the protection from arbitrary detention, which would be inconsistent with the importance of personal liberty in a democratic society. The State is therefore obliged to take measures providing effective protection of vulnerable persons, including reasonable steps to prevent a deprivation of liberty of which the authorities have or ought to have knowledge (see, mutatis mutandis, Z and Others v. the United Kingdom [GC], no. 29392/95, § 73, ECHR 2001-V, and Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, §§ 332-52 and 464, ECHR 2004-VII).”
“120 … the Court has had occasion to observe that the first sentence of art.5(1) must be construed as laying down a positive obligation on the state to protect the liberty of those within its jurisdiction. Otherwise, there would be a sizeable gap in the protection from arbitrary detention, which would be inconsistent with the importance of personal liberty in a democratic society. The state is therefore obliged to take measures providing effective protection of vulnerable persons, including reasonable steps to prevent a deprivation of liberty of which the authorities have or ought to have knowledge.”
“1) The basic principle must be to take all possible action to protect the health and safety of all persons deprived of their liberty. Taking such action also contributes to preserving the health and safety of staff. […] 4) Any restrictive measure taken vis-à-vis persons deprived of their liberty to prevent the spread of COVID-19 should have a legal basis and be necessary, proportionate, respectful of human dignity and restricted in time. Persons deprived of their liberty should receive comprehensive information, in a language they understand, about any such measures. 5) As close personal contact encourages the spread of the virus, concerted efforts should be made by all relevant authorities to resort to alternatives to deprivation of liberty. Such an approach is imperative, in particular, in situations of overcrowding. Further, authorities should make greater use of alternatives to pre-trial detention; commutation of sentences, early release and probation; reassess the need to continue involuntary placement of psychiatric patients; discharge or release to community care, wherever appropriate, residents of social care homes; and refrain, to the maximum extent possible, from detaining migrants.”
‘Due to the recent advice published by the Government we will be closing our doors to all visitors from 5 pm on Friday March 20th until further notice. We will continue to take Government guidance and will update you where necessary. If there are any changes with your relatives we will notify you immediately by phone. We will be able to set up Skype and Facetime facilities for you to contact your relatives and will pass on any email messages.’
“How care homes can minimise the risks of transmission To minimise the risk of transmission, care home providers are advised to review their visiting policy, by asking no one to visit who has suspected COVID-19 or is generally unwell, and by emphasising good hand hygiene for visitors. Contractors on site should be kept to a minimum. The review should also consider the wellbeing of residents, and the positive impact of seeing friends and family. If a resident has symptoms of COVID-19 Care homes are not expected to have dedicated isolation facilities for people living in the home but should implement isolation precautions when someone in the home displays symptoms of COVID-19 in the same way that they would operate if an individual had influenza. If isolation is needed, a resident’s own room can be used. Ideally the room should be a single bedroom with en suite facilities. All staff will be trained in hand hygiene. Much of the care delivered in care homes will require close personal contact. Where a resident is showing symptoms of COVID-19, steps should be taken to minimise the risk of transmission through safe working procedures. Staff should use personal protective equipment (PPE) for activities that bring them into close personal contact, such as washing and bathing, personal hygiene and contact with bodily fluids. Aprons, gloves and fluid repellent surgical masks should be used in these situations. If there is a risk of splashing, then eye protection will minimise risk. New PPE must be used for each episode of care. It is essential that used PPE is stored securely within disposable rubbish bags. These bags should be placed into another bag, tied securely and kept separate from other waste within the room. This should be put aside for at least 72 hours before being disposed of as normal. Care homes have well-established processes for waste management. Clean frequently touched surfaces. Personal waste (such as used tissues, continence pads and other items soiled with bodily fluids) and disposable cleaning cloths can be stored securely within disposable rubbish bags. These bags should be placed into another bag, tied securely and kept separate from other waste within the room. This should be put aside for at least 72 hours before being disposed of as normal. Do not shake dirty laundry before washing. This minimises the possibility of dispersing virus through the air. Wash items as appropriate in accordance with the manufacturer’s instructions. Dirty laundry that has been in contact with an ill person can be washed with other people’s items. Items heavily soiled with body fluids, such as vomit or diarrhoea, or items that cannot be washed, should be disposed of, with the owner’s consent. Guidance has been published recommending action for all members of a household if one person is showing symptoms. This guidance does not normally apply to care homes because of the ability of care homes to provide isolation precautions for individuals living in the home. Care homes can seek additional advice from their local Public Health England health protection teams. Testing of residents may be organised if care homes have several cases at a time.”
‘Can capacity assessments be undertaken by video when it is established that P is happy to do so and can be “seen” alone? • Suggested solution: In principle, yes. The assessor will need to make clear exactly what the basis of the assessment is (i.e. video access, review of records, interviews with others, etc.) Whether such evidence is sufficient will then be determined on a case by case basis. It is noted that GPs are rapidly gaining expertise in conducting consultations by video and may readily adopt similar practices for assessments. Careful consideration will need to be given to P being adequately supported, for example by being accompanied by a “trusted person.” These considerations could and should be addressed when the video arrangements are settled. It should always be borne in mind that the arrangements made should be those which, having regard to the circumstances, are most likely to assist P in achieving capacity.’
“23. … I agree that members of a family, even if there is a family dispute concerning P's best interests could, albeit I think rarely, appropriately act as P's litigation friend in proceedings relating to that dispute. However, it seems to me that he or she would need to demonstrate that he or she can, as P's litigation friend, take a balanced and even-handed approach to the relevant issues. That is a difficult task for a member of the family who is emotionally involved in the issues that are disputed within the family and it seems to me an impossible task for AF to carry out in this case. One only has to look at her statements to see that she is clearly wedded to a particular answer. You do not see within her statements a balanced approach or anything approaching it, such as: "This is the problem. These are the relevant factors for and against". That is not a criticism. Rather it seems to me that it is a product of the result of there being long-standing family disputes and the existing clear divisions of opinion within the sibling group as to what will best promote UF's best interests.”