Erin is in her late 70s and is afftected by dementia, living in a care home. Her partner, Patrick, visits her regularly in the care home. During a visit Patrick is seen touching Erin in a sexual way. Staff are concerned about this and raise it with the local authority. The local authority start a safeguarding enquiry. The social worker carries out a mental capacity assessment and Erin is assessed as having capacity to decide if she wants to have contact with Patrick (including kissing and hugging) but not sexual contact. Erin is also assessed as not having capacity to take full part in the enquiry because of her advanced dementia. Erin’s friend is keen for the relationship with Patrick to be limited or stopped altogether and is pressing the local authority to restrict his visits.

Erin has a Care Act Advocate supporting her through the safeguarding enquiry. The advocate had taken part in training by BIHR and recognised this was engaging Erin’s right to respect for family life, protected by Article 8 in the Human Rights Act. The advocate had seen the positive impact the relationship with Patrick appeared to have on Erin. Representing Erin on this issue on a non-instructed basis, the advocate met with the social worker conducting the enquiry and raised Erin’s right to family life. The social worker agreed that Erin’s right to family life was engaged and took this into account during her enquiry, which concluded that the local authority would not prevent Patrick from visiting Erin and that the care home staff would not intervene if they kiss and hug. 

Example from BIHR’s project Care and Support: A Human Rights Approach to Advocacy

This example is also shared in BIHR's booklet Mental Health, Mental Capacity: My human rights