On the same day that the nation went into a second lockdown, the Government published revised guidance on Visiting Arrangements for Care Homes. Whereas previous versions of this guidance had adopted a more neutral approach, the steer from the Government is now clear; the expectation is for care homes to be facilitating visits wherever possible.
As social beings, none would deny the undoubted benefits contact with relatives and friends brings. For those who live in a care home, 2020 has seen some of the most significant interferences with their essential human rights to private and family life, as well as to their ability to interact and engage with the world around them. Whilst all of us have experienced restrictions, the protection imperative driven by their particular vulnerabilities to Covid-19 has resulted in far greater curtailments to care home residents than to most. For many, they have not seen their loved ones in person for eight months and remote forms of communication may not be appropriate or accessible. But it is precisely those vulnerabilities, which can magnify the detriments to their health, wellbeing and quality of life of not having such contact. The importance of visitors to residents and the fundamental fabric of care home life is widely recognised and cannot be overstated.
Understandably, families and friends across the country are contacting care homes with the expectation that they will immediately be able to visit residents. Whilst most managers and owners are mobilising swiftly to put in place arrangements, it is equally understandable that, for a variety of reasons, this may not be possible or practicable overnight. The Guidance recognises that the “first priority is making sure that those in care homes receive the care and support that they need. That includes making that residents are not put at avoidable risk of contracting Covid-19” (our emphasis). Therein lies the crux of the challenge. It is not possible to eliminate the risk of transmission of Covid-19. Increased interactions between residents, visitors and staff will increase the infection risk. Care homes are tasked with balancing the risk of an outbreak of Covid-19 - which could be devastating to the lives of its residents, against the risks associated with no visiting - which could also be devastating. On top of this, care homes will also be balancing their duties to their staff and those working in their care homes.
Tolerance for risk is inherently personal; what one resident or their family might find entirely bearable, another resident or family would consider wholly unacceptable. But the arrangements that a care home puts in place impacts all of its residents. Rightly, the Guidance recognises that it is the care home itself that is best placed to determine the appropriate arrangements for its setting. It also properly acknowledges that the care home cannot be alone in this endeavour; it will need to work with its residents, its families, its staff and local professionals.
What does the law say?
In the latest tranche of Covid-19 regulation lies the legal framework for the current national lockdown. In essence, it makes it unlawful for a person to leave the place that they live (their home) without “reasonable excuse” and prohibits “gatherings”, both indoors and outside. To leave your home without reasonable excuse, or to gather, in contravention of the regulations is an offence. In the regulations, care homes and their grounds are private dwellings and are not considered public spaces.
Focussing specifically on visitors to care homes and their residents, the regulations permit a person to leave their home and to “gather” (either indoors or outdoors) to visit a resident of a care home, as long as the person is a:
- member of the resident’s household; or
- close family member of the resident; or
- friend of the resident.
The regulations also permit a person leaving their home for “the purposes” of such a visit. Presumably, this is to enable a person to facilitate a visitor visiting a resident in a care home, for example, by driving them to the care home.
What does this mean? Visits to care homes are lawful, save where the Director of Public Health has directed a care home to close to visitors. As such, it is imperative that Care Homes maintain good links with their local Director of Public Health. It also means that there will be local variations for small or national care home providers to navigate, which has been referred to as a “postcode lottery.”
What does the Guidance say?
The Guidance provides a number of “starting points” (our emphasis):
- Care homes should look to facilitate visiting wherever possible;
- As a “first priority” care homes should sure that residents are not put at avoidable risk of contracting Covid-19;
- Care homes should have care home-specific and resident-specific approaches; and
- Arrangements will need to work for residents individually and collectively.
Whilst the Guidance falls short of mandating in-person visits, such visits are evidently the aim. “Blanket approaches” are likely to be vulnerable to challenge (depending upon the specific circumstances). The focus is very much upon risk assessment; at a care home-level, at an individual resident-level and as the individual and collective interrelate. The Guidance contains practical suggestions and considerations.
Some of the key messages within the Guidance include:
- Visiting should be limited to a single constant visitor per resident (wherever possible) with an absolute maximum of two constant visitors per resident;
- Wherever possible, visits should be outside in the open air;
- Care homes should implement appropriate infection control precautions;
- No ad hoc visits – there should be arrangements to enable booking/appointments;
- Care homes need to “screen” visitors and ask appropriate questions on arrival; and
- If there is an outbreak of Covid-19, the care home should rapidly move to stop visits (save for exceptional circumstances e.g. end of life) and should have an outbreak protocol/policy in place.
As is expected with guidance, it expands upon and addresses matters that are not specifically underpinned by the legislation. The difficulty with this, however, is that, at times, this Guidance is perhaps not as clear as it might be and is a little inconsistent in places. For example, it interchangeably refers to a visitor, visitors and visiting party – and the references to social distancing during visits is different in different sections of the Guidance. Where a care home is in any doubt, we would recommend dialogue with its regulators as to the approach and application of the Guidance at local level.
The Government will review the Guidance at the end of lockdown. Care homes should keep their arrangements under review, taking into account any relevant changes in the care home’s circumstances, the individual resident’s circumstances, the national guidance and the legal framework.
What should care homes be doing?
There is no “one size fit all” approach. The precise arrangements for visits is going to be dependent upon the specific care home, its resident cohort and the individual resident. Care homes will need to empower their managers and their staff to undertake the analysis that is required to devise their arrangements.
It is not possible for a care home to eradicate or mitigate all risk; be that the risk of transmission of Covid-19, the risk associated with a lack of social contact or the risk of criticism or challenge. In being open, transparent and communicative, a care home can reduce those risks. Care homes should engage their residents, their families and friends and their regulators and commissioners. They should liaise with their local Director for Public Health and wider community. They should explain what steps they are taking and their anticipated timescales – whilst arrangements are being put in place, they should ensure that residents are supported to maintain contact remotely.
Those operating in the health and social care field are well-versed in complex decision-making in the face of scrutiny and problem-solving in the face of adversity. Care homes should draw upon the information and suggestions set out in the various guidance and information provided by the Government and the industry.
Posing the following questions may assist:
- Who is your local Director for Public Health?
- What is the advice of the local Director for Public Health and the local outbreak plan?
- Have you accessed the Infection Control Fund?
- How will you actively engage your residents, their relatives, friends and advocates, and appropriate members of their multi-disciplinary teams?
- How are you satisfied that you are acting in the best interests of any residents who lack capacity to make decisions about visits?
- Who are your stakeholders, your commissioners and your regulators? How will you consult them?
- Practicably, how will you manage visits?
- How will you communicate the arrangements for any visit?
- What will you do if a resident, visitor or member of staff contracts Covid-19?
- Where have you documented your decision-making and how will you evidence your reasoning?
- What lessons can be learnt and what improvements can be made to your approach?
In devising their arrangements, care homes should use their experience and expertise to adopt a “critical-friend” analysis; do they meet the values and principles in the Ethical Framework for Adult Social Care? Is the care home assured that, both at a care home-level and an individual resident-level, its arrangements do not discriminate? Care homes may need to consider different approaches to visits for different residents. Where a resident lacks capacity to make decisions about contact, the care home will need to ensure that decisions are taken in accordance with the legal framework laid down in the Mental Capacity Act 2005 and in the resident’s “best interests.”
Many will welcome the clarity of direction set out in the new Guidance; the previous version received widespread criticism for its ambiguity and internal inconsistencies. But you can’t help but recognise that it leaves care homes with the unenviable role of balancing the human rights, benefits and detriments to wellbeing and risks to life for their residents both individually and as a collective. Ultimately, it is an undeniable reality that there is no “right answer.” What we can have, is everyone working together, trying to do their best in what are, extremely difficult circumstances.
As always, in the face of such difficult decision-making there is opportunity for ingenuity. Care homes up and down the country are devising novel approaches. Now, more than ever, is the time for sharing ideas, knowledge and learning.
To discuss this topic in more detail, please contact Hannah Taylor, Partner.
For further support and advice relating to the impact of COVID-19, please view our COVID-19 Advisory Service page.
 The Health Protection (Coronavirus, Restrictions) (England) (No. 4) Regulations 2020
 Examples include, but are by no means limited to, ADASS Advice Note on Infection Control, Essential Visiting and Human Rights in Care Homes, Admission and Care of Residents in a Care Home during Covid 19, The Mental Capacity Act 2005 and Deprivation of Liberty Safeguards during the Covid-19 pandemic