Practical and Legal Guidance for Assessing Capacity
Jul 20 2023
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The Department for Health and Social Care has published updated guidance on visiting arrangements in care homes (22 July 2020).
Guidance for supported living settings will be published separately and the Government has stated it intends to make an announcement with regards guidance for visits out of care home (for example in a home care setting) shortly.
Who is the guidance for?
The ‘visiting arrangements in care home’ guidance is specifically aimed at directors of public health and care providers, but will also be relevant for commissioners who are supporting individuals in current care home placements or actively looking to commission placements.
The guidance is applicable to care homes in England and it covers the following -
Key advising role for Directors of Public Health
Under the guidance, the director of public health should give an assessment of whether visiting is appropriate within their local authority, taking account local circumstances and in particular relevant infection and growth rates. This means we should now see local area decisions being communicated, although this localisation could lead to geographical inconsistencies resulting in confusion.
The director of public health should communicate his assessment to local care providers associations, local commissioners, CCG infection control leads and the relevant local health protection team (HPT) of Public Health England (PHE). If the director of public health considers the need to restrict visiting, he should advise all local commissioners as quickly as possible in writing and in the absence of a commissioner, direct to the registered care home manager.
Ultimately, the decision on whether or not to allow visitors and in what circumstances, is an operational decision for the provider and manager of each individual setting, based on the director of public health’s advice.
The guidance is clear that where visits are permitted, these should be limited, where possible, to a single constant visitor per resident.
What is not in the guidance?
Importantly the guidance fails to provide any advice on visitors and residents leaving the care setting, nor does it provide any detail on visits by expert professionals to assess residents.
It is also silent on circumstances where individual or families wish to visit because they are considering the care home as a placement for themselves or a loved one.
The guidance does not address specifically the interface between ECHR rights, (article 8 right to family life and article 5 right in respect of deprivation of liberty) against the need for the implementation of emergency public health measures and restrictions to deal with the pandemic.
To a large extent, the guidance pulls together advice already available in the public domain, but it does also clarify the role for local authority directors of public health and the procedures which care home managers should follow when producing the home’s visiting policy, in particular with regards to permitting individualised approaches where appropriate.
The priority remains to prevent Covid-19 infections in care homes. Visiting policy, therefore, should be restricted with alternative arrangements put in place wherever possible. As the rate of community transmission is reduced, care homes can develop a policy for limited visits on the basis of dynamic risk assessment taking into account the vulnerability of residents, based on the individual circumstances of each home, its residents and staff.
Care homes should make their visiting policy available to residents and families, including any variations to arrangements. In the event of a local lockdown, care homes will have to re-impose restrictions on visiting in order to protect their residents and staff and they should communicate this decision widely.
Providers and directors of public health should consider the following when deciding on visiting policy:
The guidance requires providers to risk assess decisions on visiting policy taking in account the following factors
Care homes may apply different visiting rules to individual residents if appropriate and based on an assessment of risk of contracting Covid-10 in relation to such individuals. Where a care home’s visiting policy allows for different visiting rules for individuals or cohorts of residents, these decisions should be clearly explained.
Furthermore, the provider should involve the resident, their relatives or friends, any advocate, commissioner and appropriate members of the care team when making such decisions. Where residents lack capacity to be involved with the visiting policy, then their attorneys or advocates should be consulted and the MCA decision making process followed in respect of decisions which directly affect them.
The provider’s policy should set out the infection control precautions it has considered and make sure such infection control procedures are clearly communicated to residents, visitors and staff.
The key points the guidance covers in this regard are –
Residents and their families should be given advice on how best to prepare for a visit. They should be advised that their ability to visit care homes is still being controlled in line with current government advice and the resident and family must be involved with any bespoke visiting controls which concern them directly.
If the care home previously had an open door policy to visits, the care home should inform residents and relatives of the change of arrangements to appointment only visits.
Family and friends must be advised if there is a declared outbreak and visiting becomes restricted. The care home should provide details of alternative ways in which residents and their friends and families can communicate with each other under these circumstances.
Link to the full guidance: https://www.gov.uk/government/publications/visiting-care-homes-during-coronavirus/update-on-policies-for-visiting-arrangements-in-care-homes#section-3