The DHSC has now published both guidance for care homes and for visitors, to take effect on 8 March 2021 (as well as a one page summary). It is perhaps worth emphasising that there is no change in the law – 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 as we come down from the most recent peak, 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 8 March 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 will be able to nominate a single named visitor who will be able to enter the care home for regular visits. These visitors should be tested using rapid lateral flow tests before every visit, must wear the appropriate personal protective equipment (PPE) and follow all other infection control measures (which the care home will guide them on) during visits. Visitors and residents are advised to keep physical contact to a minimum. Visitors and residents may wish to hold hands, but should bear in mind that any contact increases the risk of transmission. There should not be close physical contact such as hugging
- residents with the highest care needs will also be able to nominate an essential care giver.
- care homes can continue to offer visits to other friends or family members with arrangements such as outdoor visiting, substantial screens, visiting pods, or 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, we still need to be cautious to ensure we protect those most at risk in care homes while ensuring indoor visits can go ahead. While the vaccine is bringing much needed hope and protection, until more is known about its impact on transmission, residents and visitors should continue to adhere to all the infection control measures that are in place now.
It is not a condition of visiting that the visitor or the resident should have been vaccinated. However, it is strongly recommended that all visitors and residents take up the opportunity to be vaccinated when they are invited to do so through the national programme.
The DHSC emphasises that 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.
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. 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 then sets out how to deliver safe visiting, with section 2.1 setting out details of the ‘single named visitor’ approach. The intention is that this person is 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 single named visitor remains the same person 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 new concept of the ‘essential care giver.’ Although rather buried away in this section, this person could either be single named visitor or someone else. 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.
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, as 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 single named visitor 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.
The guidance document makes clear that it is intended to be a stage on the journey:
When the data shows it is safe, the government wants to go further and allow more visitors. At step 2 of the roadmap (no earlier than 12 April) the government will look carefully at the effectiveness of the vaccine for people living in care homes (and for the clinically extremely vulnerable generally), as well as levels of infection in the local community, especially of any new variants. The government will take a decision at that point on extending the number of visitors to 2 per resident, which was the approach in December prior to the national ‘stay at home’ restrictions coming into force, and set out a plan for the next phase of visits for people in residential care.
In the – new – guidance document published for visitors on 4 March, 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 (on 8 March 2021) updated guidance on visits out of care homes. This has been updated twice, most recently on 8 March 2021. Its core message is as follows:
Outward visits are an important part of life for many in residential care. However, spending time with others outside the care home will increase risk of exposure to COVID for the resident and potentially to other vulnerable residents on their return. This guidance is intended to help care providers enable visits out of the home where they are appropriate and can be delivered in a way that strikes the right balance between these risks and the benefits to the individual, to their family and friends.
These risks are usually significantly greater for older people than for those of working age. As such, visits out of care homes should only be considered for care home residents of working age for the duration of the current restrictions. We will keep this under review in light of emerging data about the effectiveness of the vaccine for people living in care homes, levels of infection in the local community and the impact of any new variants.
Outward visits should happen in agreement with the home and subject to individual and whole-home risk assessments.
While on the visit out of the home, residents must also follow all national restrictions that apply at the time. This includes those relating to leaving your home, and those relating to gathering and household mixing.
Providers are best placed to define their overall policy for how outward visits are supported in the care home safely and in a way that takes into account the needs of their residents and what is possible within the facilities and resources of the care home.
Care homes should always support visits out in exceptional circumstances, such as to visit a friend or relative at the end of their life. See separate guidance for advice on planning visits that residents may need to make to a hospital or other healthcare setting. [That guidance
The guidance makes clear that:
If a visit out does take place, all members of the household involved in the visit should have had a negative result from a COVID test taken immediately preceding the visit out. (They should also be free of any COVID symptoms, and if they have previously tested positive, have completed the necessary isolation period.) 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.
Where a visit does take place,
When the resident returns to the care home following the visit, additional measures will need to be taken in order to protect other residents and care home staff from the risk of COVID transmission. Specifically, the resident should self-isolate for 14 days. Following this isolation period, assuming the resident shows no symptoms, the resident may return to the general community in the care home.
The guidance addresses the role of the provider, noting that
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.
The guidance also covers making individual risk assessments for visiting outside the care home, including in relation to those who lack capacity to make the relevant decisions.
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.
It is perhaps also important to note that the guidance makes clear that the provisions in relation to ‘bubbles’ are unlikely to be relevant:
There are some situations in which a care home resident could be part of a support bubble, although in practice this is only likely to apply to a small proportion of individual residents. The resident is already part of a multiple-person household (the home constitutes a single household that includes all the other residents). It may therefore be possible for one resident to form a bubble with a single other household but only if the remaining residents were to forego the option of forming a bubble with anyone else because no household (and that includes a care home) is allowed to be part of 2 or more support bubbles.
The guidance for supported living was updated on 22 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.