Updated 13 January 2021 to take account of the updated guidance published on 12 January reflecting the national lockdown. This post relates to England alone. For the position in Wales, Scotland and Northern Ireland, see this post by Dr Oliver Lewis.
Visiting care homes
The DHSC published on 1 December updated visiting guidance for care homes in England. This was updated on 12 January so that the approach is now that:
All care homes, except in the event of an active outbreak, should seek to enable:
- outdoor visiting and ‘screened’ visits
- visits in exceptional circumstances including end of life should always be enabled
The regulations in force in England from 4 January 2021 do not make it unlawful for such visiting to take place, but care homes will be guided by the guidance in making their decisions here.
Unsurprisingly, the guidance makes clear that:
In all cases it is essential that visiting happens within a wider care home environment of robust Infection Prevention and Control (IPC) measures, including ensuring that visitors follow (and are supported to follow) good practice with social distancing, hand hygiene and Personal Protective Equipment (PPE) use.
In the event of an outbreak in a care home, the home should immediately stop visiting (except in exceptional circumstances such as end of life) to protect vulnerable residents, staff and visitors
The responsibility for deciding upon visits remains with care homes:
Each care home is unique in its physical layout, surrounding environment and facilities. Residents vary in their needs, health and current wellbeing. Care home managers are best placed to decide how visits should happen in their own setting in a way that meets the needs of their residents both individually and collectively.
The individual resident, their views, their needs and wellbeing should be considered for decisions about visiting, while recognising that the care home will need to consider the wellbeing of other residents as well.
These decisions should involve the resident, their family and friends and the provider and other relevant professionals such as social workers or clinicians where appropriate.
All decisions should be taken in light of general legal obligations, such as those under the Equality Act 2010 and Human Rights Act 1998, as applicable. Providers must also have regard to the DHSC ethical framework for adult social care.
Section 1 of the guidance sets out the framework for developing a visiting policy, and, in 1.2, the roles of the Director of Public Health and Director of Adult Social Services, which merits reproduction in full because they are not always properly understood:
The default position set out in this guidance is that visits should be supported and enabled wherever it is safe to do so. The local DPH and DASS have an important role in ensuring that can happen across their local area and may provide advice to care homes accordingly. This may be through a dedicated care home outbreak management team or group, often in partnership with local social care commissioners. The DPH should work with the local DASS in developing and communicating their advice to care homes.
The role of the DPH includes formally leading efforts to suppress and manage outbreaks, and the local outbreak plan (overseen by the DPH) includes care homes. Local authorities may also have powers to issue directions to homes to close to visiting, or to take further specific steps.
The DPH may consider it appropriate to provide advice for specific care homes, or for smaller geographic areas within the local authority where differences in infection rates or other factors make this appropriate. This may take the form of a framework and guidance rather than individual home by home advice. But the DPH may also provide advice to a specific care home, where they are confident that the IPC measures and other arrangements in that home make it appropriate for it to allow more visiting opportunities than the generic advice set out in this guidance.
Conversely, they may give directions to a specific home about steps they are required to take in order to allow visiting safely. This may at times take the form of a Notice or Direction pursuant to the Public Health (Control of Disease) Act [1984 – the guidance says 2020 which must be a typographical error] or a Direction pursuant to the Coronavirus Act 2020.
Section 1.3 sets out advice for making decisions about particular residents or groups of residents, noting that
Providers must consider the rights of residents who may lack the relevant mental capacity needed to make particular decisions. For example, some people with dementia and learning disabilities may lack the relevant capacity to decide whether or not to consent to a provider’s visiting policy. These residents will fall under the empowering framework of the Mental Capacity Act 2005 (MCA) and are protected by its safeguards. Where appropriate, their advocates or those with power of attorney should be consulted, and if there is a deputy or attorney with relevant authority they must consent on the person’s behalf to the visiting policy.
When considering their visiting policy, staff will need to consider the legal, decision-making framework, offered by the MCA, individually for each of these residents and should not make blanket decisions for groups of people. The government has published advice on caring for residents without relevant mental capacity, the MCA and Deprivation of Liberty Safeguards (DoLS) during the pandemic, setting out what relevant circumstances should be considered when making best interest decisions.
The guidance also emphasises that:
Care homes must also take into account the significant vulnerability of residents in most care homes, as well as compliance with obligations under the Equality Act 2010 and the Human Rights Act 1998, as applicable.
Section 1.4 sets out what should happen if there is an outbreak – i.e. the stopping of all visits except for exceptional circumstances.
Section 2 no longer addresses inside visits, but is limited to outdoor visits and ‘screened’ visits, noting as a key message that:
Visits should happen in the open air wherever possible, recognising that for many residents and visitors this will not be appropriate in the winter (this might include under a cover such as an awning, gazebo, open-sided marquee etc.) .
Some providers have used temporary outdoor structures – sometimes referred to as ‘visiting pods’ – which are enclosed to some degree but are still outside the main building of the home. These can be used. Where this is not possible, a dedicated room such as a conservatory (ie wherever possible, a room that can be entered directly from outside) can be used.
The guidance then addresses a number of further points in relation to outdoor structures/dedicated rooms, including the need for a “substantial screen,” good ventilation, cleaning and aids to communication so as to minimise the need to raise voices and transmission risk.
The guidance provides that “visitor numbers should be limited to a single constant visitor wherever possible, with an absolute maximum of 2 constant visitors per resident.”
Section 2.4 addresses exceptional circumstances such as end of life, the key message being that:
Visits in exceptional circumstances such as end of life should always be supported and enabled. Families and residents should be supported to plan end of life visiting more deliberately, with the assumption that visiting will be enabled to happen not just towards the very end of life.
Visits of this nature should be tested using supplied lateral flow devices (LFD).
Section 2.5 addresses infection control procedures and the wider care home environment, and 2.6 provides important guidance about communication, reminding care homes that:
Friends and family should be advised that their ability to visit care homes is still subject to the specific circumstances of the care home and those living and working within it. This is likely to mean that the frequency of visits is limited and/or controlled.
Family and friends should be advised that if there is a declared outbreak in a care home then visiting will need to be restricted only to exceptional circumstances such as end of life.
If there is a restriction to visitors in place, alternative ways of communicating between residents and their families and friends should be offered. The care home should also provide regular updates to residents’ loved ones on their mental and physical health, how they are coping and identify any additional ways they might be better supported, including any cultural or religious needs.
The amendments to the relevant lockdown regulations which came into force on 4 January 2021 make clear that indoor gatherings remain lawful for purposes of visiting “a person (“V”) receiving treatment in a hospital or staying in a hospice or care home, or to accompany V to a medical appointment,” where the person visiting is (a) a member of V’s household; (b) a close family member of V; or (c) a friend of V (see further here). The judgment in Davies v Wigan Council & Anor  EWCOP 60 is also relevant, given in the context of directions being made in a s.21A challenge to a DoLS authorisation founded, in part, upon the restrictions placed upon visits. In that judgment, the Vice-President of the Court of Protection made clear that visiting was lawful (under the old sets of regulations) and also noted that:
3. For those in care homes, perhaps more than any other, deprivation of contact with loved ones has the potential to corrode quality of life to such a degree that, it may become difficult to evaluate where the balance of harm lies, as between a risk of exposure to an insidious and life threatening virus and compromising the most basic quality of life. Into this equation of competing interests must be factored the moral imperative to protect a group as well as an individual. These countervailing interests each require consideration. This cannot be regarded as an either-or situation. The fact that the interests of an individual and those of the wider group are difficult to reconcile, perhaps frequently irreconcilable, does not absolve the care home, or the state more generally, from engaging in the effort to do so. The strength of the obligation to protect the rights of the individual, particularly the vulnerable and mentally incapacitated, is not in any way diminished by the pandemic health crisis; it is, if anything, enhanced.
In the context of approving a plan for making further enquiries as to what visiting arrangements might be made, the Vice-President noted at paragraph 25 that:
I emphasise that I do not want these enquires to be confined by what is presently available. Any plan should reflect the need for frequent and vigilant review and should proactively contemplate the various alternatives that may soon emerge. With some diffidence, in this ex tempore judgment, I indicate that, in the Court’s assessment, the time has come for care homes to position themselves in the vanguard of the developing opportunities. In other words, they should move to the front line and be careful not to lag behind when identifying the emerging options. There are many reasons why this must be the case, not least the fact that (whilst this may not apply to Mrs Davies), for many in the care home system, time is simply not on their side.
Visits out of care homes
On 1 December, the DHSC also published guidance on visits out of care homes. This was then updated on 12 January 2021 radically to constrain its scope in light of the national lockdown, which means that:
People must stay at home and must not gather indoors unless one of the specified exemptions apply. This means that a resident will not in general be able to meet another household indoors (for example, visit their family in the family’s home).
Similarly, there are restrictions on meeting people from other households outside, which will also limit what is practical or appropriate in light of the individual’s care and support needs.
Care homes should, however, support visits out in exceptional circumstances, such as to visit a friend or relative at the end of their life.
The guidance makes clear that
Outward visits should happen only in agreement with the home and subject to individual and whole home risk assessments.
If a visit does take place, all members of the household hosting the visit should have had a negative result from a COVID test taken immediately preceding the visit. For instance, the test could be taken when the family go to the care home to collect the resident for the visit. Care homes should make use of the lateral flow devices they have been supplied with for this purpose.
The resident should be tested immediately before their visit out of the care home with a lateral flow device (LFD), and if the result is positive, the visit should not go ahead. The resident should be immediately isolated in the care setting, complete a confirmatory PCR test, and contact with the local health protection team should be made urgently. The test kits with which care homes are being supplied for regular resident testing can be used for this purpose.
If there is an outbreak,
the home should immediately stop outward visiting. There may be local policy and outbreak management arrangements, which will be important to follow.
These restrictions should continue until such time as it is understood that the outbreak has been brought under control and the care home has recovered – at this point outward visiting may be restarted but with the usual infection prevention and control measures and any enhancements required due to any risks identified following the recent outbreak.
The guidance for supported living was updated on 6 January 2021, the material parts providing as follows:
We are currently in a situation where there is sustained community transmission across the UK and a care/support worker should assume that they are likely to encounter people with COVID-19 infection in routine work. Therefore, visits in person should be limited to protect the health and wellbeing of people being supported, their carers and the visitors. In supported living environments the accommodation is the person’s own home, however it may also be a staff workplace.
For some people, there are important reasons for having in-person visits, as not having these may be difficult to understand and lead to distress.
Supported living managers and care/support providers need to work with the people they support to identify where following the government requirements for visiting and support bubbles will cause distress, and consider options for in-person visits.
As of Wednesday 6 January 2021, a new national lockdown is in place across England. Visits with support bubbles are still allowed. Supported living managers, care/support workers, people being supported and their families and friends should follow national guidance on support bubbles and meeting others.
If the person is assessed as not having capacity in relation to this decision, the provider should work within the appropriate MCA framework to establish that a visit is in someone’s best interests.
If the person has capacity and wants a visit, the provider should:
- advise them about the safest ways to have visitors
- risk assess individual settings and individual vulnerabilities consider risks to other people (if in shared settings)
- encourage, agree and support decision-making regarding visitors
It will also be important to consider the risks to visitors themselves and anyone they may later be in contact with, for example an older relative. The above should be achieved by building on relationships to advise people on infection prevention and control [which are then set out in some detail]
Of relevance here also is the decision of Lieven J in NG v Hertfordshire County Council & Ors  EWCOP 2, in which she confirmed that it is lawful for family members to be out of their home (and by the same token to be at the placement) for purposes of contact with a person where that contact includes an element of care (broadly defined). Again, whether a visit for contact and caring purposes is lawful, and whether it is a good idea are two different things.