Recent media coverage has highlighted cases where families have been prevented from seeing a loved one who lacks capacity in a care home or other placement. These cases can be deeply distressing and often raise understandable questions.

Following a recent piece by ITV News, which included an interview with Hanna Whitehead, Associate in the Court of Protection Team, many families have asked how contact decisions are made and who has the authority to restrict contact.

This blog explains how these decisions are made in the Court of Protection, and why they are often far more complex than they appear from the outside.

 

The starting point: The person’s rights matter

In Court of Protection cases, the central focus is always the vulnerable individual themselves – often referred to as ‘P’. If they have capacity to make decisions for themselves about who they spent time with, then those decisions must be respected.

If they lack capacity, the Court must always apply the principles of the Mental Capacity Act 2005. This includes:

  • Presuming capacity unless proven otherwise
  • Supporting people to make their own decisions where possible
  • Considering P’s wishes and feelings
  • Making decisions in P’s best interests if they cannot decide themselves

Family relationships are recognised as extremely important and a right to private and family life is enshrined in Article 8 of the European Convention of Human Rights.

 

When do contact restrictions arise?

Limiting a person’s contact with their relative (i.e. restricting the frequency of duration of contact, or requiring contact to be supervised by a professional) may be considered where there are safeguarding or welfare concerns or allegations, for example:

  • Risk of emotional, psychological or physical harm to the vulnerable person
  • Undue influence or coercion
  • Breakdown in relationships causing distress to P
  • Situations where P becomes overwhelmed or destabilised by contact
  • Concerns about exploitation or financial abuse
  • The placement itself being put at risk due to challenging behaviour

Sometimes restrictions are temporary, while long-terms plans or the impact of any restrictions on the vulnerable person are considered.

 

Who makes these decisions?

It is a common misconception that local authorities or care providers can simply ‘ban’ family contact without oversight.

In reality, placements or care providers may sometimes need to put immediate restrictions in place, particularly where there are safeguarding concerns. However, these decisions should not sit with the provider alone.

Where restrictions are introduced, the local authority must be informed. The local authority is then responsible for considering whether the restrictions are necessary and proportionate, and whether the matter needs to be referred to the Court of Protection.

Local authorities can also introduce or request contact restrictions themselves. However, where those restrictions amount to a serious interference with P’s rights, the local authority should make an application to the Court of Protection so the Court can consider whether the restrictions are lawful and proportionate.

When the Court is involved, it will consider evidence from multiple sources, such as:

  • Family members
  • P themselves, wherever possible
  • Social workers
  • Care staff
  • Medical professionals
  • Independent experts

The Court’s role is not to punish or blame anyone. Its role is to decide what is safest and most beneficial for P, while ensuring that any restrictions are necessary and proportionate.

 

What does the Court look at?

The Court will usually consider:

  • P’s wishes and feelings
  • The nature of the family relationship
  • The risks associated with contact
  • Whether support or supervision could make contact safer
  • The least restrictive option available

Ultimately, where a case is before the Court of Protection, it is the Court that will make the final decision about whether contact should take place, and if so, in what form.

This may include deciding:

  • Whether contact should continue, change, or stop
  • Whether contact should be supervised or supported
  • How often contact should happen
  • Whether indirect contact (such as letters, phone calls or video calls) is appropriate

The Court will balance P’s rights to family life and relationships with the need to protect P from harm. Any restriction must be necessary, proportionate, and the least restrictive option available.

 

Getting advice

If you are concerned about contact arrangements involving a loved one who lacks capacity, it is important to seek specialist legal advice early.

If you would like advice about contact restrictions with a vulnerable loved one, please contact the Court of Protection: Health & Welfare Team at Ramsdens Solicitors.

 

The above article is for illustrative purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any part of the information given.

Furthermore, the information contained is accurate and up to date as of the date of publication. Readers should be aware that legislative frameworks may have been amended since the original date of publication.