The Department for Health and Social Care (‘DHSC’) has laid before Parliament the Health and Social Care Act 2008 (Regulated Activities) (Amendment) Regulations 2023 (‘the regulations’) regarding visiting in care homes and hospitals in England. The regulations do not apply to supported living, extra care housing, or in relation to individuals requiring treatment for substance misuse (in any setting). The regulations follow a consultation undertaken by the DHSC and are to come into force from 6th April 2024.
The consultation responses supported the DHSC’s proposal to introduce a fundamental standard (‘the standard’) on visiting. The standard requires that service users, defined as ‘a person who receives services provided in the carrying on of a regulated activity’ are facilitated to receive visits to care homes, hospitals, and hospices (unless there are exceptional circumstances). Such circumstances are to be assessed on a case-by-case basis. The DHSC gave an example of what would be considered exceptional as ‘…where a visit would pose a significant risk to the health, safety or wellbeing of a service user or an employee of the provider'. Further, regarding service users in care homes, the standard requires that such persons are not discouraged from taking visits in the community. The regulations’ explanatory memorandum summarises that position with reference to the deprivation of liberty safeguards:
‘Though residents cannot legally be prevented from leaving care homes (except in certain cases such as where the person lacks the relevant capacity and is subject to the deprivation of liberty safeguards), we understand that during the pandemic a range of restrictions were placed on residents wishing to leave the care home, particularly upon their return, and that these discouraged service users from taking visits out. The intention is that service users must not be discouraged from leaving the care home premises to support their wellbeing and participation in their community. In practice, this will mean, for example, that providers should not impose unreasonable rules on returning after a visit out that would discourage service users from taking a visit out and effectively act as a restriction.’
The standard also requires enablement (via accompaniment) of services users’ visits to hospitals and hospices when attending as outpatients.
Importantly, the regulations provide that a service user is not required to receive or take visits out of a care home, or be accompanied, if they do not wish to be. Where service users have been assessed as lacking capacity to consent to taking or receiving visits, they are not required to do so if it would not be considered in their best interests.
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