Government plans to make visiting in care homes a fundamental standard for CQC registered providers

The government has recently published an open consultation, ‘Visiting in care homes, hospitals and hospices’ (updated on 28 June 2023) which outlines its proposal for new legislation which would make visiting a legal requirement in care homes and other health and care settings.

During the covid-19 pandemic, visiting people in care homes was restricted to varying degrees and care providers took many different approaches to facilitating contact with residents in their care homes throughout this period. Many providers implemented complete bans on visits to keep their residents safe and prevent the spread of covid-19.

There is no doubt that visits from loved ones is essential for people living in care homes and is vital for ensuring that their health, wellbeing and quality of life is maintained. Visiting loved ones is also crucial for care home residents’ family and friends who also want to maintain regular physical contact with them and support them with their care.

At present, the current expectation, as outlined in the most up-to-date guidance from the Department of Health & Social Care and NHS England, is that all care homes in England should encourage and facilitate visits in a risk-managed way in all circumstances. It is made clear that restrictions should only be implemented as a last resort where required and where restrictions are implemented, they should be reasonable, proportionate and time limited. In any event, end of life visiting should always be supported. Where there are safeguarding concerns or an outbreak of infection, the guidance advises care providers to use individual, personalised risk assessments in order to make proportionate decisions, together with other relevant health professionals, for individual residents.

Whilst many care providers have now removed previous restrictions and returned to some pre-covid-19 normality, it has been reported that some people’s families and friends are still facing visiting restrictions in some services across the health and social care sectors.

All Care Quality Commission (CQC) registered providers are assessed and monitored against the fundamental standards set out in the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. Whilst visiting is already implicitly covered by some of the existing fundamental standards, specifically regulation 9(1) and (3)(a) (person centred care) and regulation 10(2) (dignity and respect), the government’s proposal is to introduce secondary legislation (regulations) to amend the current 2014 regulations to include a specific visiting requirement, which would apply to all health and social care settings.

This could be done by either adding a new, standalone fundamental standard (regulation) to cover this visiting requirement or by amending one of the existing fundamental standards such as regulation 9 or 10, for example. It is suggested that this would give the CQC and care providers more guidance on what would amount to a breach and allow the CQC to take more action against care providers who are not following current visiting guidance.

The proposal for the new visiting requirement covers all CQC registered care homes (carrying out the regulated activity of ‘accommodation for persons who require nursing or personal care’), hospitals (carrying out the regulated activity of ‘treatment of disease, disorder or injury’) and hospices (providing inpatient palliative and end of life care). However, it is made clear that this would only relate to visits from family, friends and volunteers and not visiting professionals.

It also considers whether the visiting requirement should be exception-based, namely that a provider does not restrict visiting without a reasonable explanation. In those circumstances, it suggests that the onus of proving why a restriction was reasonable to the CQC would be on the care provider. Alternatively, it is proposed that the regulations set out any exceptions, which would permit providers to restrict visiting where one or more applied. Some examples of the proposed exceptions are if:

1. A person does not wish to receive a visitor;
2. A visitor is confirmed to have an infectious disease or has been confirmed to have been in contact with someone who does;
3. The person being visited has an infectious disease or there is an outbreak in the care home or hospital;
4. A visitor is a risk to the physical and/or mental health and wellbeing of residents, patients and/or staff;
5. A patient’s treatment plan does not include visiting, in order to aid their recovery;
6. A visitor is requesting to visit at a time outside standard, reasonable, visiting hours (such as late at night or early in the morning);
7. There is an unforeseen emergency occurring in the home or hospital and visiting cannot be safely accommodated;
8. The care home or hospital does not have the capacity to receive a large number of visitors.

It is further proposed that the new visiting requirement should also apply to visits outside of a care home. Providers are expected to encourage and facilitate care home residents to go out into the community and there should be no restrictions on this without a reasonable explanation supported by an appropriate, individualised risk assessment. However, the consultation suggests that a specific and limited exception-based approach could be taken.

Within the CQC’s Enforcement Policy (February 2015), the CQC sets out their two primary purposes when using their enforcement powers, namely: to protect people who use regulated services from harm and the risk of harm, and to hold providers and individuals to account for failures in how the service is provided. The CQC has a wide range of both civil and criminal enforcement powers which it can utilise when registered care providers breach the fundamental standards. Civil powers include the power to issue warning notices or proposals to cancel or suspend registration or vary or impose conditions. Criminal powers include the power to prosecute and issue fixed penalty notices or simple cautions.

The government’s proposal would mean that the CQC could use their civil enforcement powers to address any breaches of the visiting requirement when it is necessary and proportionate to do so in line with their enforcement policy. This could mean that more providers are held to account for breaches of regulations relating to visiting than what they currently are and it could provide further justification for more serious enforcement, where there are multiple breaches of different regulations.

You can find out more information or respond to the government’s consultation here.

Our specialist CQC solicitors provide specialist advice and representation to health and social care providers in relation to registration, compliance, enforcement action, and appeals to the first-tier tribunal (care standards). For a confidential, no-obligation discussion, call our specialist CQC solicitors now on 0161 696 6250 or contact us via our online enquiry form.