The DHSC has today (22 July) published the long-awaited guidance relating to visiting policies in respect of care homes in England. Guidance relating to hospitals has already been out for some time (since 8 June), and the passage of time has only made clear how important it is that visits can be supported – where possible – to offset the obvious and increasing impact upon residents of care home of the visiting restrictions (see, for an example from the Court of Protection, the case of BP).
Importantly, this guidance does not on its face set out for care homes a particular line that should be followed, but rather sets out a framework for local area policies, guided by the relevant Public Health England Director for the area, and then individual policies for care homes. To that end, the guidance sets out five areas:
- the principles of a local approach and dynamic risk assessment
- advice for providers when establishing their visiting policy
- advice for providers when taking visiting decisions for particular residents or groups of residents
- infection-control precautions
- communicating with family and others about the visiting policy and visiting decisions
The staged approach set out in the guidance means that providers cannot rely upon it to support visits taking place immediately, as the guidance makes clear that:
Prior to visits being allowed in care homes in a local authority area, the director of public health will assess the suitability of a specified level of visiting guidance for that area taking into account relevant infection and growth rates.
The decision on whether or not to allow visitors, and in what circumstances, is an operational decision and therefore ultimately for the provider and managers of each individual setting to make.
That having been said, the guidance does suggest that:
To limit risk, where visits do go ahead, this should be limited to a single constant visitor, per resident, wherever possible. This is in order to limit the overall numbers of visitors to the care home and the consequent risk of infection.
The guidance endorses the Care Provider Alliance’s protocol for enabling visits.
The guidance addresses the position in relation to those with impaired decision-making capacity thus:
Providers must consider the rights of residents who may lack the relevant mental capacity needed to make particular decisions and, where appropriate, their advocates or those with power of attorney should be consulted. 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.
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. The government has published advice on caring for residents without relevant mental capacity, and on the MCA and Deprivation of Liberty Safeguards (DoLS), during the pandemic.
It is perhaps worth noting, however, that the fact that a person does not have capacity to consent to the visiting policy does not mean that, in the name of their best interests, a more generous visiting policy can be created. As the Supreme Court made clear in N v ACCG, decisions made in the name of best interests are choices between available options. However, as the guidance makes clear, general visiting policies need to be supplemented by individual decisions, which will take into account:
The factors relevant to decisions about particular individuals or groups of residents include the following, in addition to those factors above relating to a care home’s general visiting policy:
- 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 (see latest government guidance on shielding)
- if not regarded as a person requiring support to shield, whether the resident’s state of physical health is such that they may be more seriously affected if they develop COVID-19
- the provisions and needs outlined in the person’s care plan
- the level and type of care provided by external visitors and the ability of care home staff to replicate this care
- appropriate level of staff to enable safer visiting practices
- the extent to which remote contact by telephone and/or video addresses any wellbeing issues above and is available and reduces any distress or other harm caused by the absence of visits. When developing visiting polices, care homes should consider how they will support remote contact (for example, wifi access for all residents)
In other words, it may be that in an individual case, it would be in that person’s best interests for the general visiting policy to be modified so as to facilitate a more generous (or, potentially, a less generous) approach to that which the guidance suggests should normally be adopted of
Usefully, the guidance also notes that:
in exceptional circumstances, a very small number of people may have great difficulty in accepting staff or visitors wearing masks or face coverings. The severity, intensity and/or frequency of the behaviours of concern may place them, visitors or the supporting staff at risk of harm. A comprehensive risk assessment for each of these people identifying the specific risks for them and others should be undertaken for the person’s care, and this same risk assessment should be applied for people visiting the person. If visors or clear face coverings are available, they can be considered as part of the risk assessment. Under no circumstances should this assessment be applied to a whole care setting
It should also be noted that one impact of the guidance may well – in some cases – be to limit visits from those which are currently facilitated:
It is recommended that the home has an arrangement to enable booking/appointments for visitors – ad hoc visits cannot be enabled. If the home has previously operated an ‘open door’ visiting policy, then residents and relatives need to be informed of the change of arrangements and why this is necessary.
The guidance will be updated as the risk posed by coronavirus continues to change.