Sophie Maloney, Associate Solicitor Court of Protection, Stephensons Solicitors LLP
The widespread suspension of family visits and the implementation of restrictions on visits to residents of care homes has been widely reported in the media throughout the coronavirus pandemic, with some care homes praised for the steps taken and others confronted with legal challenges.
Care providers have faced the impossible task of keeping residents safe from the risk of infection, whilst complying with positive obligations to promote and facilitate residents’ rights to a private and family life (in accordance with Article 8 of the European Convention on Human Rights).
Given the impact of Coronavirus, it is not surprising that care homes took the decision to close their doors to visitors following the first ‘wave’ in March 2020. However, close contact with loved ones is invaluable and this has therefore come at a huge cost to residents and their families. The suspension of visits has been particularly difficult for residents who are unable to communicate properly via telephone or video, maybe due to a hearing impairment or dementia. One year on, care homes are still faced with the same issue, with government guidance still being regularly updated and adapted.
It has been clear from the start of the pandemic that blanket bans on visits and contact with relatives is unlawful. An approach to simply stop all visits for all residents, irrespective of their condition or care needs, leaves care homes and local authorities open to legal challenge. Government guidance has been clear that a risk assessment should be undertaken and a decision made in the case of each individual.
In addition to pressures surrounding whether to allow face-to-face contact, with or without safety measures or restrictions in place, care home staff have also faced the additional pressure of facilitating remote contact via phone and video. With many residents requiring support to hold a phone, tablet or computer, and to communicate, this is a time intensive task for staff in addition to their day-to-day caring duties. However, Government guidance is clear that remote contact should be facilitated where possible.
The current guidance, as of 24 March 2021, is that every care home resident can nominate a single visitor who can now physically enter the care home for regular visits. This brings its own practical challenges of regular lateral flow testing, PPE and other infection control measures. It is also not a requirement that the visitor or resident has been vaccinated.
The guidance confirms that all care homes should seek to enable:
- Indoor visiting by a ‘single named visitor’, with physical contact being minimised and social distancing measures maintained.
- Where close contact personal care from a loved one is critical for the resident’s immediate health and wellbeing, arrangements for the visitor to provide that care should be made.
- There should still be opportunities for residents to see more than just the single named indoor visitor, by enabling outdoor visiting and ‘screened’ visits.
- Visits by essential care givers, and in exceptional circumstances including end of life, should always be enabled.
All decisions should be taken based on the needs of the individual, in line with obligations under the Equality Act 2010 and Human Rights Act 1998. Regard must also be had to the DHSC ethical framework for adult social care. Failing to meet these obligations could result in the CQC exercising its regulatory powers.
Dynamic risk assessments should have now been prepared and be in place. Risk assessments and policies should be regularly reviewed and updated in line with any new Government guidance and should allow for consideration of the specific needs and vulnerabilities of each resident, as outlined in their care plans.
Further, where there are any doubts about a resident’s mental capacity and a decision is to be made about a visitor (or which person should visit them in the event of a dispute), it is imperative that a mental capacity assessment is undertaken. In the event that a person is assessed to lack mental capacity, and there is a dispute with family members in relation to visiting, the resident’s allocated social worker (or adult social care services) should be informed of the dispute. A best interests meeting should then be arranged to discuss the issue and try to reach agreement in the resident’s best interests.
If an agreement is not reached, an application to the Court of Protection would be required. The Court will take into account a wide range of factors, including the resident’s past or present wishes about the proposed visiting or contact arrangements, any beliefs or values they have which would have influenced their decision if they had capacity, and any other factors that they would be likely to consider if they were able to.