The Care Quality Commission (CQC) published its final guidance for health and social care providers on 4 April 2024, which outlines what providers must do to make sure they respect the right of each person to receive visits and to be accompanied in care homes, hospitals, and hospices. This is now a legal requirement Regulation 9A of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, following an open consultation produced by the government outlining its proposals last year (2023).
During the Covid-19 pandemic, health and social care establishments across the England were obliged to operate with heightened vigilance and cautiousness as a way of controlling the spread of the disease and limiting mortality rates wherever possible. At the height of this, relatives and friends were left unable to see their loved ones in care, while some providers restricted visits completely, causing extreme distress to residents and upset to families. However, even after the Covid-19 pandemic has ‘settled’ to an extent, family and friends are still burdened with visiting restrictions.
The government published a consultation last year named, ‘Visiting in care homes, hospitals and hospices’, outlining the proposals for new legislation which would make visiting a legal requirement in care homes, as well as other health and social care settings. This saw around 533 individuals respond to the consultation, with a huge average of 79% agreeing or strongly agreeing across a number of questions, confirming that the guidance clarified what is required of the relevant health and social care providers.
The new regulations encourages providers to take a ‘human rights-based approach’ in guaranteeing that people staying in a care home, hospital, or hospice are able to receive visits from family, friends or anyone else they want to see; people living in care homes are not discouraged from taking visits outside of the home; and that people attending appointments in a hospital or hospice (that do not require an overnight stay), can be accompanied by a family member, friend or advocate if they wish. It should be noted that the guidance is written in order to assist care homes, hospitals, and hospices in following and comply with these new regulations.
Providers should now put necessary provisions and measures in place so that visits and accompaniment can happen as safely as possible. It is made clear that required restrictions to this should only be implemented as a last resort and in the least restrictive way possible. These are to be decided with the person in question, as well as their family, friends, or advocates where necessary. The regulations acknowledge that there may be exceptional circumstances in which a visit or accompaniment may not be suitable, particularly where these may create a significant health, safety or welfare risk to a person using the service on the premises. This may mean that in-person visits cannot be facilitated, however, the provider is required to put in place the necessary restrictions and review arrangements regularly.
In their assessments, providers must ensure that they take into account people’s mental capacity and that the person in care themselves, or someone lawfully acting on their behalf, is included in the planning, management and reviewing of their care and treatment. This is essential for respecting the right of each individual to receive visits and to be accompanied, as and when they wish, in order to meet and respect both their needs and preferences. Providers will need to engage with the requirements of the Human Rights Act 1998 and the Equality Act 2010, including the Public Sector Equality Duty when applicable.
The CQC will not have any criminal enforcement powers to be able to prosecute any breach of this regulation, however, they may be able to take other regulatory action, including civil enforcement action to address any breaches of the regulation. This would include proposals or decisions to refuse an application to register where a provider cannot satisfy the CQC that they can comply with this regulation if registered, or for existing registered providers who are unable to ensure that all regulations continue to be met, the imposition of conditions or cancellation of registration may be pursued.
You can find out more information on the new guidance here: Regulation 9A: Visiting and accompanying in care homes, hospitals and hospices
Our specialist CQC solicitors act on behalf of health and social care providers and have successfully defended and represented numerous professions and businesses across the health and adult social care sectors, particularly in relation to CQC enforcement. For a confidential, no-obligation discussion with a member of our team, please call 0161 696 6250, or contact us via our online enquiry form.
By Maisie Greenhalgh, regulatory law team
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