Care home residents rights to have visits from loved ones must be “underpinned by law”

The Joint Committee on Human Rights believe that the rights of care home residents to have visits from loved ones must be “underpinned by law” according to their report, Care homes: Visiting restrictions during the Covid-19 pandemic.

The cross-party committee of MP’s believe that by not underpinning the Government guidance for Care Home visits by legislation means that not all care homes have necessarily felt bound by the Department of Health & Social Care guidance. They also believe that the CQC needs to get a grip on what is going on in the care home sector and put in place more robust processes to monitor adherence with the Government guidance by the end of May 2021.

The report, Care homes: Visiting restrictions during the covid-19 pandemic focuses on the visiting restrictions in care homes that have been enforced in England. It sets out how the Government’s guidance on visiting care homes has evolved since the start of the covid-19 pandemic and reflects on how the restrictions have affected residents and their families over the last year, including the specific challenges faced by younger care home residents with learning disabilities.

The report considers the challenges that have been faced by care home providers as they have sought to balance the right of families to meet together with the need to protect the lives of residents however the Joint Committee of Human Rights also notes the inconsistent application of the guidance within the care home sector and consider whether the CQC has been effective in defending the rights of residents in care homes and their families.

In conclusion, they reiterate their previous call for legislation to require that care home providers undertake individualised risk assessments before placing restrictions on visits.

Residents will be able to leave care homes for low-risk visits without needing to self-isolate on their return

Although this report was published today, 5^th May, the report was printed on 28^th April, 2 days prior to the latest guidance released by the Department of Health & Social Care which states that residents will be able to leave care homes for low-risk visits without needing to self-isolate on their return.

This guidance came into effect yesterday meaning from Tuesday 4 May, residents will be able to leave their care homes to visit a friend or family member’s garden, or go on walks in places such as parks, public gardens and beaches and will not have to self-isolate for 14 days when they return. Residents must be accompanied by either a care worker, or nominated visitor, and follow the government guidelines of washing hands regularly, keeping social distance, and remaining outside, in line with step 2 of the roadmap.

Care homes: Visiting restrictions during the covid-19 pandemic

You can read the full report, Care homes: Visiting restrictions during the Covid-19 pandemic by The Joint Committee on Human Rights here or read their key conclusions and recommendations below.

Key Conclusions and Recommendations

The Key Conclusions and recommendations for Care homes: Visiting restrictions during the Covid-19 pandemic by The Joint Committee on Human Rights are:

1. Since the start of the pandemic, official guidance on care home visiting has prioritised the Government’s obligation to protect residents’ right to life (Article 2 ECHR), even where this has severely impacted on the right to respect for private and family life (Article 8 ECHR). While this may have been understandable in the short term, it is unacceptable to place draconian restrictions on the right to family life of those in residential care and their families for over a year. Of course the Government should seek to protect residents in care homes, but it also has an obligation to uphold their right to family life and ensure that it is facilitated in practice.
2. Close family members who provide care can be their relatives’ most important care givers. They provide the emotional and physical support that a paid carer could never hope to replicate. The Government’s guidance over the last year has not adequately acknowledged the importance of families to residents’ wellbeing. It was wrong to deny essential care givers the right to see their relatives, especially when they could have played a crucial role in supporting the over-stretched care home staff during the crisis. Care home providers say they understand the importance of families to residents’ care and wellbeing; they must show this in practice.
3. The Department for Health and Social Care has not consulted widely enough when preparing new guidance for the care home sector or provided sufficient notice to families and providers when announcing significant changes to visiting procedures. Greater involvement for residents groups in the preparation of guidance would ensure that strong advocates for the right to private and family life are heard when key decisions are made.
4. There are clear benefits to residents’ health and wellbeing from being able to visit a park or sit outside at a hospitality venue. There are specific concerns about the impact of isolation on younger residents with learning disabilities from their valued roles in the community. However, Government guidance requiring residents to self-isolate for 14 days if they choose to leave their care home—for even the shortest period—is excessive and clearly designed to discourage such visits.
5. It is difficult to understand how this 14-day self-isolation rule can be a proportionate interference with the rights of residents and their families to respect for private and family life under Article 8 ECHR. In many cases, it is likely to give rise to difficult questions of deprivation of liberty under Article 5 ECHR. It is not obvious how the resulting deprivation of liberty can be said, at present, to be necessary and proportionate for purposes of Article 5 ECHR.
6. Further, it is doubtful that self-isolation imposed on the basis of guidance would be ‘in accordance with the law’ and, therefore, were such self-isolation to be imposed, it does risk constituting an unlawful interference with residents’ right to liberty and right to family life.
7. It is right that the Government has committed to reviewing this guidance in May 2021. As the rest of us benefit from reduced lockdown restrictions, residents of care homes the vast majority of whom have already been fully vaccinated against this virus—must not be left behind.
8. The Government and care home providers have had a difficult job balancing the right of residents to a family life with the need to protect the right to life of all residents and staff. However, many providers have erred too far on the side of caution, to the significant detriment of residents and their families. Both the Government and providers should have done more to recognise the importance of quality of life for care home residents.
9. The Joint Committee on Human Rights admire the hard work and dedication of the thousands of care staff across the country who do such a brilliant job in very difficult circumstances.
10. It is right and proper for the Government to be challenged on the content of its guidance, as we have done so before and do so again here. But the Government’s guidance should not be second guessed or selectively applied by care home providers, absent a cogent and clearly explained basis for doing so. If care homes are to depart from the guidance at any point, they must do so on the basis that it sets the floor, rather than the ceiling, in terms of supporting residents and their families to enjoy their Article 8 ECHR rights. It is also important that there is clarity as to whether national guidance should take priority over local guidance from a Director of Public Health.
11. It is clear that public authorities do not have a clear enough view of the care home sector’s adherence to the guidance on visiting. It was astonishing to hear the Care Quality Commission (CQC) claim that they were not aware of any care home in England that was not following the guidance, despite clear evidence to the contrary from residents and their families. The CQC needs to get a grip on what is going on in the care home sector and put in place more robust processes to monitor adherence with the Government guidance by the end of May 2021.
12. The CQC urgently needs to establish better processes for collecting data and monitoring the right of care home residents to receive visitors. It should collect and publish live data on levels of visiting in every care home, the number of complaints that have been received and how these have been resolved. The CQC should immediately look at a sample of care homes to help it assess the sector’s compliance with the government’s visiting guidance.
13. It can be very difficult and intimidating for residents and families to escalate complaints about care home providers, particularly in small care settings. This is acknowledged by both the Minister and CQC. The Government and CQC must urgently work together to implement a new process for residents that guarantees anonymity and provides families with confidence that their relatives will not face retaliation for raising valid concerns.
14. In February of this year The Joint Committee on Human Rights called for legislation to require that individualised risk assessments are undertaken for each resident, and to ensure that procedures are in place so that such assessments can be queried where they have omitted relevant factors or not made adequate efforts to consider how Covid-safe visits might be facilitated. The Joint Committee on Human Rights have now prepared a draft statutory instrument to address these concerns.

Labour's Harriet Harman, chairwoman of the committee, said: "By not underpinning this guidance in law, care homes have not felt bound by it and important rights have therefore not been respected.

"The Care Quality Commission assurances that visits are being allowed properly now in all homes is wholly unconvincing.

"Because care homes see guidance about allowing visits as advisory rather than binding, the government must now bring forward regulations to give their guidance on visits legal force."