[This post has now been superseded by this one, reflecting the changes from 19 July 2021]
It is perhaps worth emphasising that visiting people in care homes is not, and has not been, unlawful (save in the exceptional situation where a care home has been closed to visitors at the direction of a Director of Public Health).
The guidance, though, provides the framework through which care homes will make their decisions about visitors. The updated guidance both reflects the changes in the public health environment, and also the impact of the work of bodies such as the Joint Committee on Human Rights in framing the difficult balancing acts required between the different rights in play.
In this post, I look at the main parts of the guidance document and also (so that things are in the same place) set out the other guidance documents relating to visits out of care homes (also now updated to reflect changes post 21 June 2021) and supported living.
For the position in Wales, Scotland and Northern Ireland, I recommend this very useful blog by Dr Oliver Lewis.
Care home guidance overview
The care home visiting guidance document is now lengthy. Its key messages are as follows:
- every care home resident can nominate up to 5 ‘named visitors’ who will be able to enter the care home for regular visits (and will be able to visit together or separately as preferred)
- the 5 named visitors may include an essential care giver (where residents have one). Babies and preschool-aged children do not count towards the total of 5 (provided no individual visits breach national restrictions on indoor gatherings)
- to reduce the risk of infection, residents can have no more than 2 visitors at a time or over the course of one day (essential care givers are exempt from – and so not included in – this daily limit)
- every care home resident can choose to nominate an essential care giver who may visit the home to attend to essential care needs. The essential care giver should be enabled to visit in all circumstances, including if the care home is in outbreak (but not if the essential care giver or resident are COVID-positive)
- named visitors and residents are advised to keep physical contact to a minimum (excluding essential care givers). Physical contact like handholding is acceptable if hand washing protocols are followed. Close personal contact such as hugging presents higher risks but will be safer if it is between people who are double vaccinated, without face-to-face contact, and there is brief contact only
- national restrictions on indoor gatherings should be followed.
- care homes can also continue to offer visits to other friends or family members through arrangements such as outdoor visiting, rooms with substantial screens, visiting pods, or from behind windows
As the guidance document notes:
Welcoming anyone into care homes from the community inevitably brings risk of COVID-19 transmission. However, these risks can be managed and mitigated, and they should be balanced against the importance of visiting and the benefits it brings to care home residents and their families.
In the face of new variants of the virus, and a potential upsurge in current prevalent types of COVID-19, we need to remain alert to risks to ensure we protect those most at risk in care homes while ensuring indoor visits can go ahead.
Vaccination is one of our best defences to combat infection. It significantly reduces the transmission of the virus, particularly following 2 doses. It is strongly recommended that all visitors and residents take the opportunity to be vaccinated before conducting visits.
The DHSC emphasises that responsibility for deciding upon visits remains with care homes:
Each care home is unique in its physical environment and facilities, and the needs and wishes of their residents. As such, care home managers are best placed to develop policies (in consultation with residents and their relatives) to ensure that the visits described in this guidance are provided in the best way for individual residents, their loved ones, and care home staff.
Care home managers should feel empowered to exercise their judgement when developing practical arrangements or advice to put this guidance into practice so that visiting can take place smoothly and comfortably for everyone in the care home.
If the provider or manager has any queries regarding visiting, a range of additional support is available. They may wish to seek advice from their local Director of Public Health or Director of Adult Social Services, both of whom have an important role to play in supporting visiting, and in supporting the care home to deliver the visits described in this guidance. Additionally, care homes may wish to make use of the resources provided by Care England and Partners in Care, a coalition of providers, relatives and residents organisations facilitated by the National Care Forum.
The individual resident, their views, their mental capacity, their needs and wellbeing should be taken into account when decisions about visiting are made, 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. Throughout this guidance we use the phrase ‘family and friends’. This is intended to be a wide-ranging and inclusive term to describe the network of people around the resident who may wish to visit, or whom the resident may wish to meet.
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 Department of Health and Social Care (DHSC) ethical framework for adult social care. The Care Quality Commission (CQC) has regulatory powers that can be used where the commission has concerns regarding visiting.
The starting point in the guidance is that
Visiting must be supported wherever and whenever it is possible and safe to do so – and a wide range of professionals have a role in supporting this, including care home managers, DPH and DASS.
As the default position, all care homes should seek to enable the different types of visits described in this section.
Care home guidance – section by section
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. It makes clear that blanket bans covering whole local authority areas are not appropriate.
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. This will include residents who lack the capacity to decide who they wish their single named visitor to be [this must be a typo as it does not reflect the current limit]. 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 make the best interests decision to 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 then sets out how to deliver safe visiting, with section 2.1 setting out details of the ‘named visitor’ approach. The intention is that these people are named by the resident but
Where the resident lacks the capacity to make this decision, the care home is encouraged to discuss the situation with the resident’s family, friends and others who may usually have visited the resident. In this situation, a person can only be nominated if this has been determined to be in the resident’s best interests in accordance with the empowering framework of the Mental Capacity Act. (See also the advice in section 1.3 for those who lack relevant capacity.) Where necessary, social workers can be approached by the care home, resident or family to support these conversations – in particular to help resolve any issues or concerns, and to ensure professional support and or oversight where required.
As the guidance recognises:
It is important that the named visitors remain the same people as far as possible. This is important in reducing the risk of transmission, by limiting the number of different people coming into the care home from the community. However, we recognise that there will be situations in which a named visitor cannot continue to visit (for example because of illness). We advise care homes and families to take a pragmatic approach, with the aim of minimising change wherever possible.
The guidance then sets out details of how visits can be conducted and testing arrangements.
In section 2.2, the guidance develops the concept of the ‘essential care giver,’ whom (from 17 May) is one of the 5 named visitors, but not included in the limit of 2 named visitors visiting on any one day. As the guidance goes on to develop:
The essential care giver arrangements are intended for circumstances where the visitor’s presence or the care they provide is central to the immediate health and wellbeing of the resident. It is likely that the requirement for this support from the resident’s loved one will already be part of (and documented in) their care plan – although this should not be considered a condition of this type of visit. Managers should not assume that, in order to fulfil this role, an essential care giver must commit to visiting a specific number of times each day or week – the care and support provided may still be critical even if it is not provided every day.
Visits of this type are considered to be within the definition of ‘exceptional circumstances’ and – together with the care home’s responsibility to carry out individualised risk assessments where necessary – have been part of our visiting guidance previously, including throughout the most recent period of national restrictions. We intend that this guidance will provide the clarity needed to help these visits to take place; and the extra support described here will enable them to take place more safely.
Importantly, essential care givers are:
a central part of delivering the appropriate care and support to the resident, and as such play a role alongside professional members of the care home staff. Additionally, because they will have closer physical contact with the resident, and may spend longer in and around the care home, including areas that other visitors do not enter – it is important that they take further steps to reduce the risks (to themselves to residents and staff members) of infection.
The (relatively onerous) requirements as regards testing and PPE for such essential care givers are then developed, before the guidance notes that:
It is not a condition of visiting that the visitor or resident should have been vaccinated. However, it is recommended that they take up the opportunity to be vaccinated when they are invited to do so through the national programme.
It is important that these visitors agree with the care home what tasks they will and will not be undertaking, and that all involved are confident that the visitor has the skills to perform those tasks safely (this may well include risks not related to COVID such as skills for lifting and handling). These visitors must also agree to follow any advice or instructions on IPC from care home staff.
The care home and visitor should also agree any other relevant arrangements – for example, when and how often the visitor will come to the home, and communal areas such as staff rest areas that the visitor should not enter. Care homes may want to consider what access to refreshments may be necessary.
It is a good idea that these sorts of arrangements and any necessary training is written down and agreed between the care home manager and the visitor. Clinical care and medical tasks such as the administering of medication and physiotherapy remains the responsibility of the care home.
Section 2.3 addresses outdoor and ‘screened’ visits, the key message being that:
We also want to provide opportunities for each resident to see more than just the named visitors or essential care giver. It is important that these visits are facilitated in a way that reduces the risks to visitors, residents and staff.
Care homes should therefore continue to enable visits in COVID-secure ways, such as those set out below (including behind substantial screens, in designated visiting pods, behind windows or outdoors)
We recognise that providers themselves are best placed to decide how such visits happen in practice, considering the needs and wellbeing of individual residents, and the given layout and facilities of the care home.
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 carefully, with the assumption that visiting will be enabled to happen not just towards the very end of life, and that discussions with the family take place in good time.
Visits of this nature should be tested using supplied rapid lateral flow tests. For information on how to test, please see the care home rapid lateral flow testing of visitors guidance.
Essential care givers should continue to follow the advice provided above in section 2.2 above. This section relates to those who are not essential care givers.
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:
All visitors have a very important role to play in keeping people safe by taking steps to reduce the risks of infection wherever possible. It is important that visitors observe social distancing, PPE and hand hygiene practice while in and around the care home – including during the visit itself, although some close contact may be possible where testing and PPE is in place to mitigate risk.
It is important for providers to help visitors understand these risks, and their role in managing them to keep loved ones safe.
It is important that all visitors follow any advice and instructions that the care home provides – in order to reduce risks to themselves and their loved ones as much as possible.
Importantly, the guidance emphasises that:
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.
In a one page guidance document (also updated to reflect changes from 21 June 2021), the DHSC summarises the care home visiting guidance. Helpfully, it also then has these two sections:
If the care home makes a decision you disagree with
If the care home makes a decision you disagree with, it would be best to speak to the care home manager and ask to discuss the situation.
You could ask about the risk assessment the care home has developed to decide its visitor policy.
You could consider asking the care home to do an individual risk assessment for your loved one.
If this does not help, you could consider contacting a social worker at your local authority. They may be able to discuss the situation with you and the care home manager to find a solution.
Sometimes there will be good reasons (like an outbreak) why the home cannot offer the visiting you would like. But our guidance clearly says that the care home should not put blanket restrictions in place.
Care homes not offering visits
The government’s guidance says that visiting should be allowed to happen wherever it can be done safely.
Care home managers and staff will know best how things should run in their care home. For example, there might have to be limits on how many visitors can come in, or how often, because of the amount of space or layout of the rooms.
Sometimes there will be good reasons (like an outbreak) why the home cannot offer the visiting you would like.
But our guidance clearly says that the care home should not put blanket bans in place.
We expect all care homes to do what they can to follow our guidance. And they should explain to everyone what they are doing and why.
If you think the care home is not doing this please raise the matter with the home. If you are not satisfied that the issue is resolved, you can contact the Care Quality Commission (CQC). [contact details then given]
Visits out of care homes
The DHSC has published guidance on visits out of care homes. It was most recently updated on 21 June 2021, at which point it was further significantly changed to outline a more relaxed approach. Its core message is as follows:
Opportunities for care home residents to make visits out of the home are an important part of care home life.
Even as vaccine coverage increases, there are still risks involved in visits out. It’s important that care homes, residents, family and friends take steps to manage and mitigate these risks.
The guidance identifies that:
There are certain types of activity where the risks are inherently higher and will mean that the resident should self-isolate on their return (to the care home). This is to ensure that, in the event they have unknowingly become infected while out of the home, they minimise the chances of passing that infection on to other residents and staff. These activities are:
- overnight stays in hospital
- visits assessed to be high-risk following an individual risk assessment
All other visits out of the care home that are not assessed as high risk should be supported without the need to isolate on return to the care home, subject to an individual risk assessment (see section on individual risk assessments below). Where applicable, attention should also be given to any additional local guidance provided by the local director of public health (DPH) and director of adult social services (DASS).
The guidance continues
All precautions relating to COVID-19 (including social distancing and those set out below) should be followed while out of the care home. Where residents are visiting a location with an existing testing regime – for example a workplace, day care centre or education setting – they should participate in the relevant testing regime for that organisation where possible.
The guidance sets out steps for individual risk assessment, taking account in particular
- the vaccination status of residents, visitors and staff, including the extent of 2nd vaccinations
- any testing of those accompanying the resident or who they intend to meet on their visit out
- levels of infection in the community
- variants of concern in the community
- where the resident is going on a visit and what activities they will take part in while on the visit
- the mode of transport that residents intend to use
The guidance sets out steps to mitigate risks during a visit out, including that:
- residents may be (but are not required to be) accompanied by:
- a member of care home staff
- one or more of their named visitors, and/or
- their essential care provider (where applicable)
- residents may meet other people but should maintain social distance from anyone who is not one of their named visitors, essential care providers, or care staff and, wherever possible, should avoid close physical contact with those who are supporting their visit to minimise the risk of infection
- care homes should discuss arrangements with residents, residents’ named visitors, or their essential care provider, in advance
- crowded places should be avoided
- visits to indoor spaces should normally be avoided (except, for example, for the use of toilet facilities), unless they are for work, education, medical appointments or where an individual assessment has determined the activity is necessary to maintaining an individual’s health and wellbeing
- visits should not involve the use of public transport
The guidance addresses the role of the provider, noting that the provider is best placed to define the policy for outward visits:
The makeup of the community in the home should be factored into these considerations, as people may have a range of needs, long-term conditions and other clinical vulnerabilities and levels of mobility. Providers should consider the risk that individuals leaving the home may pose to both residents and staff within the home (including any who may be particularly vulnerable) and the measures detailed below that should be used to mitigate the risk of infection before, during and after the resident leaves the home.
If there is an outbreak:
all movements out of a setting should be minimised as far as possible.
These restrictions should continue until the outbreak is confirmed as over, which will be at least 14 days after the last laboratory confirmed or clinically suspected cases were identified in a resident or member of staff in the home.
The guidance for supported living was updated on 30 March 2021 (and again on 22 April 2021), the material parts providing as follows:
Maintaining opportunities for visiting and spending time together is critical for the health and wellbeing of people being supported, and their relationships with friends and family. In addition, for many people, there are important reasons for having in-person visits, as not doing so may be difficult to understand and lead to distress.
There are risks that need to be considered – even where people are vaccinated – but these are risks that can be appropriately managed.
As stated above this guidance is intended for supported living settings, but many of the principles are applicable to extra care housing for older people. It may also be a useful resource for the wider supported housing sector, such as retirement or sheltered housing.
The approach described below for developing a policy and mitigating the risks of visits (both into and out of the home) has 3 key elements:
- people living in supported living settings live in their own homes and should be treated as such. This means they, and their visitors, need to follow the same national restrictions as other members of the public, including following each step in the government’s roadmap around social contact. The roadmap and associated regulations provide some flexibilities which may apply to people in certain supported living settings (such as exemptions for some indoor gathering and in relation to forming support bubbles)
- supported living managers should seek to support and facilitate these opportunities wherever it is safe to do. They should develop policies for visits into and out of the setting, that are based on a dynamic risk assessment, and include consideration of the individual needs of the people who live there. These risk assessments should be developed in consultation with them
- supported living managers should also work with the people being supported to identify what further steps they can take in order to manage and mitigate risks that arise from visiting
The default position set out in this guidance is that visits should be supported and enabled wherever it is safe to do so.
In relation to those with impaired decision-making capacity, the guidance provides as follows:
Any visiting arrangements should be made in agreement with the person being supported. 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 whether the arrangements are in the person’s best interests. The government has published advice on the MCA and application of Deprivation of Liberty Safeguards (DoLS) during the pandemic.
Regard should also be given to the ethical framework for adult social care, and the wellbeing duty in section 1 of the Care Act 2014, and 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. Social workers can help providers to meet these duties by providing advice in individual cases should that be required.
Providers must consider the rights of people who may lack the relevant mental capacity needed to make a decision about visits out of their home. These people are protected by the empowering framework of the Mental Capacity Act (MCA) 2005 and its safeguards. The government has published advice on the MCA and application of Deprivation of Liberty Safeguards (DoLS) during the pandemic.
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.