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Care in Lockdown 2

New Regulations and guidance regarding care home visits are in place governing the arrangements for lockdown 2. The key issues are set out below.

Can visitors or residents go out during lockdown?

As providers will be aware, leaving home without reasonable excuse is an offence pursuant to the latest Coronavirus Regulations. A number of would be ‘reasonable excuses’ are set out within the Regulations and there is a specific provision allowing for visits to a person receiving treatment in a hospital, or staying in a hospice or care home where reasonably necessary. There are also exemptions concerning provision of care or assistance to a vulnerable person and provision of emergency assistance.

There is nothing in the Regulations themselves precluding residents from leaving care homes, notwithstanding the fact there may be other good reasons for them not to do so.

In relation to the exemption which allows individuals to take exercise with those from outside their household or linked household, the presence of a carer can be disregarded. Whilst this allows for those who are cared for to interact with others it is important to note this ‘disregard’ only applies to carers of those with a disability who require continuous care, albeit it is not clear what continuous means in practice. Further, the disregard can only be applied to a maximum of two persons acting as carers and as such groups consisting of an individual who requires three to one support are presumably going to be in difficulty.

Visiting in Care Homes – Relevant Guidance

The Plan, published when we were subject to the tier system, sets out the key elements of national support available for the social care sector for winter 2020 to 2021. It also details the main actions to be taken by local authorities, NHS organisations and social care providers. One of the overarching priorities for Adult Social Care over the winter period was said to be:

Making sure that people who need care, support or safeguards remain connected to essential services and their loved ones whilst protecting individuals from infections including COVID-19.

Many providers will have seen the joint letter from ADASS, Healthwatch and Care Alliance to Matthew Hancock of 9 October setting out their concerns regarding the August visiting guidance and requesting new guidance as a matter of priority. In summary, the risk of physical and mental deterioration of residents in the absence of visitors, the grief caused to families prevented from visiting, and wider human rights concerns are raised. It was recognised that a possible repercussion of no visiting policies is that homes become closed institutions where risk of abuse and neglect can be high.

This was echoed in the press release of 2 November where it was noted, ‘infection control is critically important in relation to life and physical health, but so is emotional well-being and what makes life worth living’. It was suggested that residents and families be consulted as ‘to the levels of risk they are willing to take as well as respecting and protecting the lives of others’.

The new guidance applies for the period of the national restrictions beginning 5 November 2020. It is recognised ‘receiving visitors is an important part of care home life. Maintaining some opportunities for visiting to take place is critical for supporting the health and wellbeing of residents and their relationships with friends and family’.

Providers’ general visiting policies

Risk assessment is key, and liaison with local directors of Public Health. Relevant factors for the purpose of risk assessment conducted in order to inform a provider’s general visiting policy include:

  • the benefits to the residents as balanced against the risk of visitors introducing infection into the care home, or spreading infection from the care home to the community
  • the ability of a particular setting to put in place practical measures to mitigate any risks arising from visits
  • the health and wellbeing risks arising from the needs of the cohort of residents in that setting – this should include both whether their residents’ needs make them particularly clinically vulnerable to COVID-19 and whether their residents’ needs make visits particularly important.

It is recognised that it may be appropriate or necessary for providers to apply different rules for different residents or categories of resident, based on an assessment of risk of contracting COVID-19 in relation to such residents, as well as the potential benefits of visits to them.

Providers should note that risk assessment must formally take into account the advice of the local directors of public health, and should of course also take account of a provider’s obligations under the general law in relation to safety issues.

Individual risk assessment

In accordance with the above, providers are also advised to undertake individualised risk assessments in order to assess the rights and needs of individual residents, as well as any specific vulnerabilities and to consider the role that visiting can play. Factors relevant to decisions about particular individuals or groups of residents may include the following:

  • the benefits to a person’s wellbeing by having a particular visitor or visitors
  • the extent of the harm that will be experienced by the resident from a lack of visitation or whether the individual is at the end of their life
  • whether residents or staff or visitors are in the extremely clinically vulnerable group
  • the extent to which remote contact by telephone and/or video addresses any wellbeing issues above

Arrangements for visiting

The Guidance sets out a number of ‘principles’ to be adopted when arranging visits, it confirms visitor numbers should be limited to a single constant visitor wherever possible, with an absolute maximum of two constant visitors per resident. Matters such as booking systems, cleaning regimes to be adopted between visits, physical arrangements, and communication of the policy to the families are also set out in the Guidance in detail.

Wider considerations for care providers

Visting policies must of course also be considered in the context of a provider’s many other ongoing duties owed to residents, staff and visitors, including health and safety and duties under the Health and Social Care Act 2008 (“HSCA”). All decisions should be taken with the Equality Act 2010 and Human Rights Act 1998 obligations in mind. Providers must also have regard to the DHSC ethical framework for adult social care which we have explored in a previous briefing. All decisions will need to be recorded carefully.

As is clear in the Guidance, the ‘priority is making sure those in care homes receive the care and support they need, [including] making sure that residents are not put at avoidable risk of contracting COVID-19’. Obligations pursuant to the HSCA fundamental standards, health and safety legislation and occupier’s liability should not be overlooked so that this issue is not framed solely in the context of Article 8 rights to private and family life. Case law has confirmed, in relation to visiting restrictions in the pandemic in the case of BP -v- Surrey County Council that we are currently facing “a public emergency which is threatening the life of the nation” and that as a result of the risk to those in care homes, “a derogation [from human rights] becomes not only justified but essential”.

Finding the right balance for these various, often competing, issues is not easy.

Visitor testing pilot scheme commenced

As announced by Minister for Care, Helen Whately, a care home visitor COVID-19 testing pilot scheme is to begin on 16 November and will involve an initial trial at 30 care homes in four local authorities where prevalence of the virus is low. The trials will allow for visiting where relatives test negative. There are plans to roll out the scheme on a wider basis from December.

The future

The approach to care home visiting is to be reviewed when the current period of lockdown is lifted, we will keep you updated should the current position change.


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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