Throughout the pandemic, concerns about the inability to visit and speak with their family members in care homes have been widely reported, with different care providers taking different approaches to facilitating contact.
Now that we are in what is being called the ’third lockdown’, with all of the country being placed into the ‘tier 4’ category, new regulations and guidance have been published by the government.
In respect of the third national lockdown which commenced on 5 January 2021, The Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020 apply. Schedule 3A specifies the Tier 4 restrictions.
Paragraph 1 of Schedule 3A provides that “no person who lives in the Tier 4 area may leave or be outside of the place where they are living without reasonable excuse”. A number of exceptions/ excuses are listed in paragraph 2, with ‘Exception 4: Medical Need’ containing reference to care home visits:
(7) Exception 4 is that it is reasonably necessary for P to leave or be outside P’s home—
The national lockdown: stay at home guidance (available on the www.gov.uk website) published on 4 January 2021, accompanies the regulations.
Although close-contact indoor visits were permitted in Tiers 1,2 and 3 following a negative test result, only indoor visits which are ‘screened’ are permitted in Tier 4. This could include visits behind Perspex screens, in designated “visiting pods” or outbuildings, and where this is not possible, a designated room such as a conservatory could be used.
Care homes should still also facilitate outdoor visits.
No visits will be permitted in the event of an outbreak in the care home (but alternative, remote, communication should still be facilitated in the event of an outbreak / increased restrictions on visiting).
In the new guidance, the government has also referred back to previously published guidance: Visiting Care Homes During COVID-19, last updated on 19 December 2020.
This guidance makes clear the importance of receiving visits from loved ones and says that maintaining some opportunities for visiting to take place is critical for supporting the health and wellbeing of residents. The guidance sets out measures that can be put in place to provide COVID-secure opportunities for families to meet using visiting arrangements such as screens, visiting pods and window visits.
It is very clear from the guidance that care home providers must work together with families and professionals to find the right balance between the benefits of visiting, and the risk of transmission of COVID-19 to social care staff and vulnerable residents.
The guidance reiterates the position that no blanket restrictions or policies can be put in place applying to all residents in a care home, and that the needs and views of the individual resident are important aspects of the decision to be made around visiting. For example, it is important to consider the effectiveness of any social distancing measures with regard to any cognitive impairment the resident has and their communication needs.
Care homes must take into account any significant vulnerability of residents, but also ensure compliance with their obligations under the Equality Act 2020 and Human Rights Act 1989. Any prevention of contact with loved ones will undoubtedly amount to an infringement of the resident’s right to private and family life (Article 8 of the European Convention on Human Rights).
Lateral flow tests are now available to care homes across the country and each care home should be able to test up to two visitors per resident, twice a week. However, outdoor and ‘screened’ visits can take place when visitors have not been tested. Visitors must continue to wear appropriate PPE, observe social distancing measures and good hand hygiene.
Visits in exceptional circumstances, such as where a resident is nearing the end of their life, visits should be permitted in all circumstances.
The guidance is also clear that the care home’s visiting policy should be made available and / or communicated to residents and families, and advice should be set out in the policy.
Residents lacking mental capacity will fall under the Mental Capacity Act 2005 and are protected by the safeguards contained in this legislation. This includes holding a best interests meeting, to seek to make a decision in the best interests of the resident.
It would be unlawful to impose blanket bans or the same restrictions on all residents. The principles of the Mental Capacity Act 2005 and best interests decision making must still be applied by professionals. This must include consultation with anyone with an interest in the person’s welfare, including any friends and family members.
In the event that agreement cannot be reached in the person’s best interests after consultation, an application to the Court of Protection may be required. The Court of Protection is a specialist Court that safeguards the rights of the most vulnerable people in society. With the coronavirus pandemic leading to increased restrictions on vulnerable adults in care settings, including some care homes stopping all visits from family and friends, the safeguards afforded by the Court of Protection are more important than ever.
It may be necessary to consider whether a move out of a care home or other care setting may be in the person’s best interests due to the negative impact that not having contact with family members is having on the individual (e.g. isolation, low mood and increased confusion of an individual with dementia). This would involve considering the restrictions in place, the extent to which they are necessary, and whether it is proportionate and necessary for them to remain in the care home in light of the negative impact it is having on them.
A complete ban on contact with family members for those in care settings could lead to inequality for those with disabilities. It is extremely important that all efforts be taken by both the relevant Local Authority and care home to facilitate contact with loved ones using any creative means possible, taking into account the individual’s particular disabilities and needs.
Should you require any advice or assistance in respect of issues with contacting or visiting your relative or loved one in a care home, please do not hesitate to contact us on 01616 966 229 and our team of specialist mental capacity and Court of Protection solicitors may be able to assist. Legal aid funding is available subject to eligibility.