For many residents, the best interests qualifying requirement will no longer be met, because continued detention will cause harm rather than prevent it. Coronavirus is not the only “relevant circumstance” and there will be a myriad of other considerations. But there is no doubt that coronavirus is now a major consideration which local authorities ignore at their peril.
In addition, responding to the coronavirus pandemic, the European Committee for the Prevention of Torture (CPT) has published a statement of principles relating to the treatment of people deprived of their liberty. The CPT calls on all relevant authorities to take concerted efforts to find alternatives to deprivation of liberty, including reassessing the need to continue involuntary placement of psychiatric patients and, wherever appropriate, discharging residents of care homes into community care. Similarly, the UN Committee on the Rights of Persons with Disabilities has called on states to “accelerate measures of deinstitutionalization of persons with disabilities from all types of institutions.”
Furthermore, the state (which includes local authorities and all organs of the NHS such as clinical commissioning groups and NHS trusts) has an ongoing duty to protect each person’s right to life, under Article 2 of the European Convention on Human Rights. The state must not only refrain from taking life, but it must proactively take steps to protect people against threats to life. Given that coronavirus threatens the lives of everyone in long-term care facilities, the state has a duty to reduce that threat, and has a duty to take action now.
Where local authorities have failed to take sufficient or speedy action to protect life, they can expect legal claims against them for negligence and under the Human Rights Act 1998, by families of residents who have died in care homes.