Free draft Letter Before Action for use by anyone being excluded from hospital or care home visits to anyone believed to be dying (ADAPT as appropriate)

[YOUR HOME ADDRESS]

[YOUR POSTCODE]

[HOSPITAL CEO’S NAME/CARE HOME MANAGER’S NAME]

[HOSPITAL TRUST’S/CARE HOME’S NAME]

[HOSPITAL’S/CARE HOME’S ADDRESS]

By email only to:

[CEO / CARE HOME MANAGER’S EMAIL ADDRESS] (IF A HOSPITAL, google ceo of trust email. It can usually be found at www.ceoemail.com)

[IF A HOSPITAL – PALS EMAIL ADDRESS] (google PALS email address of hospital trust)

[DATE]

Dear Sirs,

RE: Notification of potential Judicial Review Proceedings – Urgent action required

I am the [SPECIFY YOUR RELATIONSHIP/’FRIEND’ STATUS] of [PATIENT’S/CLIENT’S NAME], [PATIENT’S/CLIENT’S DOB], [PATIENT’S/CLIENT’S ADDRESS], [PATIENT’S NHS OR COUNCIL’S SOCIAL SERVICES NUMBER (if known)].

[PATIENT’S/CLIENT’S NAME] is currently accommodated in [WARD/ROOM X IN YOUR CARE HOME] and was admitted on [DATE] for [ILLNESS/ ISSUES].

We have been informed [PROGNOSIS OF END OF LIFE] on [DATE] by [WHOM].

I requested a visit to [PATIENT’S/CLIENT’S NAME] on [DATE]. This was refused by [STAFF NAME & ROLE] and the reason provided was the No Visitors policy due to Covid-19.

Whilst I understand that the [HOSPITAL/CARE HOME] is taking steps to curb the spread of Covid by implementing a ban on visitors, there are certain circumstances where exemptions to this policy must be made. The nationally applicable lockdown regulations allow people out of their homes and to form gatherings for the purpose of visiting people who are reasonably believed to be dying, and the implication or corollary must be that such people must be allowed to be visited.

(8) Exception 6 is that it is reasonably necessary for P to leave or be outside P’s home to visit a person (“D”) whom P reasonably believes is dying, and P is—

(a) a member of D’s household,

(b) a close family member of D, or

(c) a friend of D.

It is simply not within the power of the [NHS/the council or its delegate and chosen provider for the duty to meet a person’s needs appropriately and lawfully] to ignore the wider legal framework when engaged in the management of health and safety obligations to staff and [patients/clients].

There two sets of people’s legal rights and freedoms that a No Visiting Policy offends against here; the Human Rights Act requires conscientious balancing of other people’s interests, which has not been done in this case, as far as we are aware.

In addition to these exemptions, it is unlawful (in public law terms) to apply a blanket policy to any area of decision making that turns on judgment or discretion, or to fail to consider individual circumstances. Failure to do so is fettering discretion and grounds for judicial review proceedings.

Both the NHS and central Government guidance to care homes have made clear that ‘end of life’ patient visitors are exempted from no visiting policies.

Moreover, the failure to consider and allow a visit in our individual circumstances violates our Article 6 and Article 8 Convention Rights.

Actions you are expected to take immediately to prevent an urgent judicial review claim

· Urgently consider this request to allow me to visit [PATIENT’S/CLIENT’S NAME]. I am willing to undergo any rapid diagnostic test and wear full PPE. I do not have any symptoms of Covid-19.

· If the [HOSPITAL/CARE HOME] maintains the position not to allow visits, please provide reasons in writing and confirm the LEGAL basis for so doing, and in addition why it is considered to be the outcome of a conscientious balancing of the rights of the individual and the protection of health or the rights and freedoms of others.

· Due to the severity of [PATIENT’S/CLIENT’S NAME’s] prognosis and urgency of the situation, a response is requested immediately and no later than 1 hour from the timing of this email.

· If a response is not received within this timescale and to the terms above, I will consider issuing urgent judicial review proceedings and seek damages for human rights breaches should my [RELATIVE/FRIEND] die and the visit has remained prohibited.

· Costs will be sought as held in M v Croydon Borough of London [2012] EWCA Civ 595, [2012] 3 All ER 1237

I would be grateful if a decision maker contacts me immediately to discuss this further on [YOUR OWN TELEPHONE NUMBER] in order to arrange visitation and prevent the necessity of further action.

Yours faithfully

[YOUR OWN NAME]

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