Following on from its consultation on visiting in care homes and hospitals in England, the DHSC has (1) published its response; and (2) laid before Parliament the relevant regulations to embed that response.
In material part, the summary of the response provided as follows:
The majority of responses supported the government’s proposal to introduce a fundamental
standard on visiting.
The government will now work with CQC to develop and introduce a new fundamental standard. This will focus on visiting, against which CQC will assess certain registered settings as part of its existing inspection framework. We intend to lay the necessary regulations in Parliament to introduce this additional standard as soon as possible. We will also work with CQC to publish the necessary guidance to the health and social care sector to ensure this new standard is clear and upheld.
Through this new standard, CQC will be able to specifically include visiting considerations as part of its wider regulatory assessment of providers. This could include using civil enforcement powers in line with its published enforcement policy when it is necessary and proportionate to do so.
Of the themes we observed within our consultation, respondents cited that they found government guidance unclear, and that strict visiting times and complicated complaints processes were some of the barriers to visiting in health and care settings. Legislation will therefore help to create a consistent understanding of what is acceptable across all relevant providers. We will also seek to make guidance on the complaints process clearer for when issues do arise.
Some respondents expressed concern that through the provision of a standard and accompanying guidance, ‘exceptional circumstances’ or ‘reasonable explanations’ (where a provider may restrict visiting) may actually provide the conditions for more restrictive practices, which is contrary to our intention. We recognise that there will always be some, very limited, circumstances in which visiting cannot be facilitated by the provider to maintain the safety and wellbeing of service users and staff. However, we do not plan to include a list of these circumstances in the statutory instrument itself. We are clear that visiting is critical to the health and wellbeing of everyone.
While the majority expressed clear support for a consistent approach across CQC-registered
settings, we recognise concerns raised by sector representatives about the requirements for some health and care settings potentially putting individuals at increased risk. For this reason, we intend to exclude services for substance misuse and inpatient detoxification or rehabilitation services from the requirement. This reflects the complex circumstances and risk of relapse for a vulnerable person, and visiting is already carefully considered within care plans in these settings. Supported living settings and ‘extra care’ housing schemes will also not be in scope of the regulation. These settings generally exercise ‘exclusive possession’, in which the individual has a tenancy agreement and they can decide who visits. All guidance will clearly set out the scope of this new regulation.
We intend to address concerns about residents of care homes being discouraged to take visits out of the home by overly burdensome restrictions upon their return. A care home is a person’s home, and we will be including a provision in regulations that residents should be encouraged to take visits out of the care home to support their wellbeing.
We have received clear support and heard the positive impact that this policy would have, particularly for service users and their loved ones, with powerful personal testimony. The range of support provided by many visitors, which often extends beyond companionship to a ‘care
supporter’ role and advocate, is fundamental.
Some have called for this right to be protected within new, primary legislation. Given the overwhelming support in this consultation, and the role of CQC as the regulator in England, the government believes the most proportionate and appropriate way in which to protect and enable visiting is to now move to introduce a new CQC fundamental standard on visiting. This puts visiting on the same level as other fundamental standards, such as that which requires providers to meet the nutritional and hydration needs of service users.
A new fundamental standard on visiting provides a standard to be enforced by CQC as part of its existing civil enforcement powers. This will highlight the importance of visiting to providers and all stakeholders, and ensure that providers account for the vital role that visiting plays.
One part of the response did rather leap out at me – the assertion that those in supported living settings and extra care housing schemes generally exercise ‘exclusive possession,’ and in which the individual has a tenancy agreement and they can decide who visits. As a bald proposition this is distinctly questionable, and I might suggest not obviously a very sound foundation upon which to exclude those in such placements from the regulation – many of whom may very well be in places which could well change (in effect) overnight from a care home to a supported living placement without any actual change for the individuals concerned.
The regulations (The Health and Social Care Act 2008 (Regulated Activities) (Amendment) Regulations 2023) track through the commitments in the consultation response. This instrument inserts a new fundamental standard, namely new regulation 9A (visiting and accompanying in care homes, hospitals and hospices), into the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. This fundamental standard requires that service users (defined in regulation 2 of the 2014 Regulations as “a person who receives services provided in the carrying on of a regulated activity”) are, unless there are exceptional circumstances, facilitated to receive visits to care homes, hospitals and hospices and, in relation to service users who are provided with accommodation in a care home, are not discouraged from taking visits out of the care home. It also requires service users to be enabled to be accompanied at a hospital or hospice when attending as an outpatient.
As the Explanatory Memorandum notes (at paragraph 6.5):
“Exceptional circumstances” will be assessed on the circumstances of each case and will carry its ordinary, restricted meaning as interpreted by cases such as R v Kelly  1 QB 198 “We must construe exceptional circumstances as an ordinary, familiar adjective and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional, a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely or normally encountered.” The Department considers that an example of an exceptional circumstance might be where a visit would pose a significant risk to the health, safety or wellbeing of a service user or an employee of the provider.
New regulation 9A(2) also sets out a requirement that the taking of ‘visits out’ out of a care home must not be discouraged (unless there are exceptional circumstances). The Explanatory Memorandum notes at paragraph 7.7 that:
Though residents cannot legally be prevented from leaving care homes (except in certain cases such as where the person lacks the relevant capacity and is subject to the Deprivation of Liberty Safeguards), we understand that during the pandemic a range of restrictions were placed on residents wishing to leave the care home, particularly upon their return, and that these discouraged service users from taking visits out. The intention is that service users must not be discouraged from leaving the care home premises to support their wellbeing and participation in their community. In practice, this will mean, for example, that providers should not impose unreasonable rules on returning after a visit out that would discourage service users from taking a visit out and effectively act as a restriction.
Importantly, new regulation 9A(4) makes it clear that a service user is not required to receive any visit, take a visit out of a care home, or be accompanied, if they do not wish to be. If a service user does not have capacity to consent, they are not required to receive a visit, or be accompanied, if it would not be in their best interests to do so.
Regulation 9A applies to mental health hospitals. However, Regulation 9A(4) will not require or enable a registered person to do anything that is not in accordance with any court or tribunal order or with any provision in, or made under, the Mental Health Act 1983, the Mental Capacity Act 2005 and so far as relating to high security psychiatric services, the National Health Service Act 2006. The Explanatory Memorandum explains that “[t]he purpose of this is to ensure that the requirements in this instrument do not conflict with provisions made in or under the legislation listed and to avoid any unintended consequences.” Specifically in relation to mental health hospitals, however, it is perhaps worth noting that there is no provision of the MHA 1983 which directly relates to the control of visiting other than those providing for visits in private by, for instance, Second Opinion Appointed Doctors (a point slightly glossed over in Chapter 11 of the Code of Practice to the MHA 1983). It is therefore perhaps not entirely obvious what provisions of the MHA 1983 are going to be in play here.
New regulation 9A will not apply to a registered person in respect of the regulated activity of ‘accommodation for persons who require treatment for substance misuse’ or in respect of any detoxification services for substance misuse (which may take place in a hospital setting). This is achieved by excluding these services from the definition of ‘relevant regulated activity’ in new regulation 9A(6). As the Explanatory Memorandum makes clear:
These services are excluded because it is common for an individual in a substance misuse residential rehabilitation or inpatient detoxification service to go without visitors for a period while undergoing treatment or rehabilitation, to support their treatment. Limiting visits according to risk and being able to maintain a safe drug and alcohol free environment is fundamental to their operation. Other activities which the CQC regulates, such as personal care; management of blood and blood derived products and transport services; and triage and medical advice provided remotely, are also excluded from the definition of ‘relevant regulated activity’ as visiting and accompanying are not relevant in respect of these activities.
It is perhaps striking that the Government has not prepared a full impact assessment, on the basis that it considers that there is no significant, impact on business, charities or voluntary bodies. The Explanatory Memorandum notes at paragraph 12.2 that:
Costs have been estimated for care home settings where the central estimate of the quantified cost to business is £526,000 in year 1 of the appraisal period. This figure is an estimate of the staff administration and familiarisation costs of facilitating visitors for the care home settings that are not currently accommodating visits in any circumstances. This annual figure is expected to decrease over time, as the number of care homes reporting not allowing visiting has been broadly decreasing.
The CQC are now consulting, with a closing date of 20 February 2024, on the guidance on visiting.