From 12 April 2021 new guidance was brought in by the Government on care home visiting. It applies to care homes for working age and for older adults in England.
Every care home resident can nominate up to two named visitors who can enter for regular visits and those visitors are to be subject to rapid lateral flow testing before each visit. The visitors are also required to wear PPE and follow infection control measures whilst in the home. Physical contact is to be kept to a minimum.
Whilst this guidance is a change from the guidance in place prior to 12 April 2021, the Joint Committee on Human Rights (JCHR) questioned whether the care homes regulator, the Care Quality Commission has sufficient awareness of compliance with visiting guidance and, in fact, has gone as far as suggesting that the CQC has had an ‘astonishing’ lack of awareness on compliance following the JCHR’s own investigations into compliance.
There are reports of some care homes imposing time restrictions on visits or requiring loved ones to speak to the care home resident through telephones behind plastic screens. A very small number are, it appears, still not allowing any visits to their residents.
The JCHR is concerned that the lack of compliance with guidance by care homes will have adverse effects on rights to family life; a protected right under the Human Rights Act 1998.
Interpreting the guidance
There is no current law on what care homes should and should not do in allowing and facilitating visits by family to care home residents. As the government has provided guidance only some are concerned that it is down to each care home to interpret the guidance and this leads to inconsistency and, potentially, that families’ rights have not been suitably respected and protected.
Understandably, care home owners and care providers are concerned that by allowing people into the home, regardless of their wishes to see their loved one, this increases the risk of bringing COVID in and therefore an outbreak and, potentially, death. The financial and reputational implications of such an outbreak are significant.
However, there is the counter argument that by being too draconian in their approach in allowing family members access to loved ones, they are breaching rights to family life of both the resident and their family members in the community. There is clear conflict between the right to life and the right to family life in this situation.
Risk assessments are key
The government suggests that individualised risk assessments should be completed for all care residents when determining who should be able to visit and how those visits should take place. The JCHR is calling for legislation to require that individualised risk assessments are undertaken for each resident and to ensure that procedures are in place so that assessments can be queried where they have omitted relevant factors or not made adequate efforts to consider how COVID-safe visits might be facilitated. This has not yet moved forward in any real way.
Individual risk assessments for each care home resident will undoubtedly cause an administrative burden on an already stretched care home workforce but may well be the only way to ensure the conflict between the right to life and right to family life is mitigated. We hope that as restrictions lift in wider society, that increased contact with care home residents continues to avoid any potential criticism by family members that the resident and their rights to a family life are being adversely affected therefore avoiding future problems for care providers and their insurers.
With the limitation date for the commencement of Human Rights Act claims being one year, there is the possibility that actions concerning breaches of right to life and right to family life could be commenced imminently if they relate to issues from the first lockdown. To date we have not seen claims brought in this way but the potential is there for novel arguments to be asserted on behalf of families who were unable to visit their loved ones and/or on behalf of loved ones who were unable to see their family due to the restrictions placed on visits.