Contact with relatives in care homes - new guidance from May 2021

Throughout the pandemic, concerns about the inability to visit and speak with family members in care homes have been widely reported, with different care providers taking different approaches. As we are navigating the government’s ‘roadmap’ out of lockdown, the guidance published by The Department of Health and Social Care is being regularly updated to ease restrictions, and care providers should ensure compliance with any new guidance.

However, there is still a balance to strike between facilitating much needed contact with loved ones and the risk of transmission, especially in the face of new variants of the virus emerging. Whilst an increasing amount of people are being vaccinated, the guidance is clear that residents and visitors should continue to adhere to infection control measures.

The latest version of the guidance on care home visits was published on 4 May 2021. Here are the key points to note from the new guidance:

• Care providers should facilitate safe visiting.
• Blanket bans or arrangements are still unlawful, and could be subject to legal challenge.
• Individual and dynamic risk assessments should be completed, taking into account the resident’s health and care needs, and their wishes about the frequency of contact with their loved ones.
• Every care home resident can nominate up to 2 named visitors who can enter the care home for regular visits. The 2 named visitors should have rapid flow tests before every visit (with a negative result), wear appropriate personal protective equipment (PPE), keep physical contact to a minimum and adhere to social distancing around the care home building and grounds.
• The 2 named visitors should remain the same people as far as possible, but a pragmatic approach should be taken by care providers should any change be requested.
• It is not a condition of visiting that the visitor should have been vaccinated.
• Physical contact is not banned and visitors may wish to hold hands with their loved one, but there should not be any closer physical contact at this stage, such as hugging.
• There is some discretion afforded to care providers in deciding how often and for how long it’s possible for visitors to come into the home.
• In addition to the 2 named visitors, residents with higher care needs can also choose to nominate an essential care giver. Anyone asking to be regarded as an essential care giver must provide care that is ‘critical for the resident’s immediate health and wellbeing’.
• In addition to any 2 named visitors and essential care givers, care homes should also continue to offer visits to other friends or family members through previous arrangements such as outdoor visiting, rooms with substantial screens or visiting pods, or behind windows.
• As with previous guidance, no visits will be permitted in the event of an outbreak in the care home (but alternative, remote, communication should still be facilitated where restrictions are in place).
• Visits to residents who are approaching end of life should be enabled, and discussion should be had with the family about any end of life visits in good time.

Care homes must take into account any significant vulnerability of residents, but also ensure compliance with their obligations under the Equality Act 2020 and Human Rights Act 1989. Any prevention or restriction of contact with loved ones will undoubtedly amount to an infringement of the resident’s right to private and family life (Article 8 of the European Convention on Human Rights) and this must be proportionate and necessary. The Care Quality Commission (CQC) also has regulatory powers that can be used should there be any concerns about visiting.

Residents lacking mental capacity (for example, due to a mental impairment such as dementia or learning disabilities) will fall under the Mental Capacity Act 2005 and are protected by the safeguards contained in this legislation. The new guidance confirms that this will include those who lack capacity to decide who they wish their single named visitor to be, or who are unable to consent to the visiting policy in place. If this is the case, family members (and any deputy or attorney) should be consulted. A best interests decision should then be made, based on what is in the resident’s best interests. The guidance states that:

“Where the resident lacks the capacity to make this decision, the care home is encouraged to discuss the situation with the resident’s family, friends and others who may usually have visited the resident or are identified in the care plan. In this situation, a person can only be nominated if this has been determined to be in the resident’s best interests in accordance with the empowering framework of the Mental Capacity Act” (2.1).

New guidance has also been published about visits outside of the care home, to enable loved ones to leave the care home premises without the need to self-isolate upon their return. From 4 May 2021, residents should also be enabled to leave their care home to spend time outdoors.

Should you wish to take your loved one out of the care home to spend time together outside of the home, here are the key points to note from the new guidance:

• The resident may be accompanied by a member of care home staff, one (or both) of their 2 nominated visitors, or their essential care provider where applicable
• Care providers should discuss the arrangements in advance of any trip out of the home
• Visits should only take place outdoors (save for use of toilet facilities)
• There should be no visitors to indoor places
• There should be no use of public transport to facilitate any trip out

Update on 11 May 2021

In a press release from the government, it has been confirmed that further changes to the guidance are due from 17 May 2021. The further updated guidance will be published in due course, but according to the information released by the government on 10 May 2021:

• From Monday 17 May 2021, care home residents can have up to 5 named visitors (increased from the current limit of 2).
• Although 5 different people can be named visitors for each resident, a maximum of 2 visitors will be permitted to visit at any one time or on any given day (but the daily limit does not apply to very young children or essential care givers).
• Self-isolation will not be required following visits to GP’s, dentists and day centres.
• Visits will only pause for a minimum of 14 days following any outbreak of coronavirus in the home (reduced from the current 28 days).

If it is believed for any reason that a placement is not following the current guidance, then you can contact the Care Quality Commission (CQC), which is the regulatory body responsible for inspecting the safety and quality of care. You could also raise a safeguarding alert with the local authority, pursuant to s42 Care Act 2014, or instruct a Solicitor to provide advice in respect of the grounds of any legal challenge to the restrictions. Restrictions on visiting undoubtedly infringe Article 8 (right to private and family life) and it’s important that the infringement of this human right is proportionate and necessary. Equally, if a vulnerable adult lacks mental capacity to make decisions about contact with others, a best interests meeting and decision about the restrictions is required. In the event of a dispute, an application can be made to the Court of Protection for a decision to be made.

Should you require any advice or assistance in respect of issues with contacting or visiting your relative or loved one in a care home, please do not hesitate to contact us on 01616 966 229 and our team of specialist mental capacity and Court of Protection solicitors may be able to assist. Legal aid funding is available subject to eligibility.