Judge rules woman dying from cancer should be able to leave care home despite covid-19 lockdown

A judge overlooked the lockdown rules set in place during the UK’s response to the coronavirus pandemic in order to allow an elderly woman to spend her final days with her family.

An elderly woman, who has not been named, was told she had only a small amount of time remaining to live following diagnosis of terminal cancer.

A long-drawn court case was to follow, after the lady in question asked to be moved from her care home – where she had resided for the last 10 years – in order to move in with her daughter and family to be surrounded by loved ones. 

It is ‘self-evident’ that any decision by the state that prevents someone with a terminal illness from living with their family, needs a ‘particularly high degree of justification’, Judge Mrs Justice Lieven said.

It was deemed the ability to die surrounded by family and loved ones is a ‘fundamental’ part of someone’s human rights, the judge said.  

She ruled that the woman should be able to ‘spend her last days with her family’.

In her judgment, Mrs Justice Lieven said she started with the ‘basic proposition that most people would strongly wish to die with their family around them’.

The ruling comes at a time of major concern over deaths linked to Covid-19 in care homes, with many homes banning visitors due to the risk of passing on the virus.

In her judgment, Mrs Justice Lieven noted that if the woman were to remain at the care home, the ‘need to minimise the spread of the virus’ and current government guidance would mean that ‘the most contact that she would be likely to have would be one short visit from one family member at or around the time of her death’.

The woman had been living in a care home, which also cannot be identified, for almost 10 years, staying regularly with her family.

Around Christmas time, she was diagnosed with advanced terminal ovarian cancer and admitted to hospital in January. She later returned to her care home.

Her daughter applied to the court for the woman to be allowed to move in with her.

The local authority argued that no immediate order should be made for the woman to leave the home, and asked for further assessment in the hope that she might be able to move in four to five days.

In her ruling Mrs Justice Lieven said that the case concerned whether it was in the woman’s ‘best interests to be allowed to live with her family in the last period of her life’.

She went on to say: ‘The ability to die with one’s family and loved ones seems to me to be one of the most fundamental parts of any right to private or family life.’

The judge also said: ‘It would seem to me self-evident that such a decision by the state that prevents someone with a terminal disease from living with their family, must require a particularly high degree of justification.’

The judge said that at the time of her decision, it was not clear if any of the other residents at the home had Covid-19, and it was not said whether the woman had the virus, but this was a possibility ‘given some accounts of her current symptoms’.

This is important, the judge said, because the judgment is ‘solely’ about what is in the woman’s best interests ‘in circumstances where she had terminal cancer and her family wanted her to die at home with them’.

In a postscript to the judgment, Mrs Justice Lieven said that the woman died two days after she moved to live with her family.

‘I do not know what she died of and whether she had, indeed, contracted Covid-19,’ she said.

In a statement after the judgment was published, the woman’s daughter said: ‘Although I am very distressed at the loss of my mother, it gives me some comfort to know that she could see the family at the end of her life.

‘She was surrounded by our love when she died. I should not have had to fight so hard for this basic human right.’