Laura Banks: How the law can support the COVID-19 bereaved

Laura Banks
Laura Banks

Laura Banks, solicitor at Francis Hanna & Co, considers how human rights law can assist people experiencing a bereavement related to coronavirus.

The COVID-19 pandemic has wide-reaching implications and it is therefore throwing up myriad issues in our society, some of them fundamental and going to the very core of our humanity.

In this article, we look at some of the effects that the pandemic is currently having on the bereaved; what sources of help and support are available; and how the law, with particular reference to human rights law, might be of assistance at this time.

Grief is something that sadly impacts all of us at some time in our lives and we can all agree that losing a loved one is one of the most painful and devastating life events that we will ever experience. Yet at the present time, it has hit people much harder than we could have ever imagined, as we get to grips with “social distancing”, “isolation” and “lockdown”, and the cruel, heart-breaking impact that this strange new way of life can bring.

Sadly, those in hospital suffering with COVID-19 are often not allowed to have visitors, even their closest relatives. This goes against our human instincts and creates an unimaginable level of trauma and pain, which has the potential to stay with a person for the rest of their life.

It has been reported that one charity is aiming to provide computer tablets to every intensive care unit in the UK. Such moves can help alleviate some of the stress involved in separation from loved ones. It can also allow family members to say their goodbyes - something which can have a profound impact on the grieving process, according to the bereavement charity Cruse.

At the time of writing, providing loved ones with PPE in order to be physically by a person’s side in cases of COVID-19 is also being considered and has been implemented in some parts of the UK, but has not yet in Northern Ireland.

We have heard about the way the pandemic has affected the age-old traditions that we hold dear, such as funerals, memorials and wakes. This is how we come together to commemorate a person, celebrate their life and mourn their death. It gives us so much comfort but now, so many of these things have been taken from us.

In local news this week, we are hearing about the devastating impact for so many on the closure of cemeteries and how this issue has divided public opinion. Currently, the legal power to decide when cemeteries open lies with the Executive, who at the time of writing have not yet indicated an intention to re-open them. This is despite suggestions being made that social distancing guidelines could be adhered to and a range of stringent measures introduced such as reduced opening hours, a one–way system and introducing supervision, much like what we are seeing in supermarkets and other essential services across the country. The reality is, it is a delicate and difficult balancing exercise between the need to contain the pandemic with the need to empathise, support and meet the needs of those who are bereaved.

Legal remedies

In the current circumstances, it is difficult to predict with certainty how a court will interpret a particular issue. What we must remember is that human rights laws are designed for times like these. These laws can provide checks and balances on the actions of our public bodies, who are making decisions in a time of crisis, of national emergency, of ever-changing advice and of conflicting scientific evidence. Human rights laws allow us to put these decisions under judicial scrutiny and potentially overturn them where they are deemed to be incompatible and unlawful, for the benefit of our society.

Judicial review proceedings can be issued against decisions of public bodies such as government departments and ministers, local authorities and NHS Trusts and private bodies carrying out public functions. They provide important clarity on legal issues and allow judges to develop the law in a way that protects an individual’s human rights.

Judicial review can be sought where a public body might have acted outside it’s powers, where there is a potential procedural impropriety or where the decision is irrational, unfair or biased or breaches human rights laws. Legal aid may be available for such challenges and they can often be done by way of an emergency. There are strict time limits and criteria involved and legal advice should be sought as soon as possible.

Support and help

One of the most comforting aspects of this pandemic is how technology has been utilised to give comfort and support to a wide range of people in our society, including those who are bereaved.

Charities are encouraging people to reach out to them, as many are available by phone and online and are adapting the way they work for those who need them most.

Technology has been used to stream funerals and hold digital memorials, to connect us with friends, colleagues, and sources of support. Courts are increasingly using technology to ensure that access to justice is available at this time.

For further support and guidance surrounding bereavement, charities such as The Good Grief Trust, Cruse Bereavement Support, Widowed and Young and Childhood Bereavement Network can be contacted.

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