This continues to be a hot topic, understandably. And pressure seems to be mounting, with an overdue policy shift towards enabling visits beginning to develop. And rightly so. A ban for a few weeks was one thing, but it’s been months now, and there is no real end in sight.
So this post will talk through the key guidance, and the questions that remain unanswered. Every time I think I have finished this post some new guidance comes out, so I apologise that this is quite a lengthy post.
I’ll begin by saying that I am totally on board with the individual, risk assessed approach to visits that the guidance says should be followed. If you don’t believe me, look at my earlier post in this issue here
My issue now, however, is that there are a lot of words in the guidance, but not a huge amount is said that assists practitioners and care home managers on the ground to navigate the competing interests here. I appreciate that circumstances vary so widely that it will never be possible to prepare guidance that covers all possible scenarios. But some case study examples would be helpful.
The care home guidance in existence before lockdown number 2 highlighted that visits to care homes could and should be supported, especially for someone who is end of life. In my experience, this has largely been followed.
The guidance also talked about limiting visitors to 1 individual, or 2 as an ‘absolute maximum (taking into account individual residents’ circumstances)’. Now I think it was either an absolute maximum or it wasn’t, so this wording is unhelpful. Also, the qualification of individual circumstances disappears later in the document. That does seem to be encouraging a blanket approach, whilst also advising against blanket approach, which will have been very difficult for care home managers, or anyone else, to reconcile.
The guidance also says Directors of Public Health should be giving guidance to care homes on this issue, and I believe that has been more helpful in some areas of the country than others.
A theme throughout the guidance was that care homes would need to take their own decisions based on their abilities, layout and set-up. This is completely sensible, and is necessary given the variations in the size of care homes and the available communal space. I do worry that this provides something of a ‘get out’ clause for care home managers, who might be encouraged to blame the environment rather than thinking creatively.
This is especially so, when the guidance also said care homes can adopt a general policy with visits only in exceptional circumstances and with remote contact instead. I know in my area, this is the approach a lot of care homes have been taking. The availability of remote contact varies, depending on the accessibility of technology and individual’s needs, however. I work in a rural area where signal dead spots and slow WiFi are still very real concerns. And I’d hate to have had to teach my grandparents how to using videocalling technology and they did not have any particular cognitive impairments, just a general mistrust of technology.
And the suggestions for how contact can be supported in care homes left something to be desired. For example, visitors must not have contact with any other residents when they are visiting. This makes sense. However, many visits take place in communal areas, and care home staff are often reluctant to ask residents to leave communal areas. With residents free to move about the home as they wish, this seemed difficult to put into practice without creating increased restrictions that might need further legal authority through DoLS or the Court of Protection.
It also advised that care homes screen visitors for coronavirus before they attend the care homes. This sounds wonderful, but relies on honesty from visitors and if this year has taught us anything, it’s that people can have very different attitudes about health risks. So I do question the effectiveness of asking visitors if they have symptoms, because if they lie, care homes will never know but the consequences could be significant for any number of care home residents and staff.
Some of the other suggestions such as keeping windows open even though it is winter, and to ‘consider’ putting screens in place seem likely to be ignored in practice.
One of the things that did jump out at me, in typical generalist fashion, is that the guidance stated that care home staff should speak to other residents and families when making bespoke arrangements for visits. I wonder how this could done without breaching confidentiality and data protection legislation. And I can see how care home staff might be nervous about this. Because once arrangements have been made for one resident to receive visitors, it seems likely that other families and going to want the same allowances made. And that can significantly increase the risks for everyone, because the difference between one visitor and 20 is easy to see. And this touches on one of the factors that has been plaguing my mind: how can care homes support visits for people who want to accept the risk, without also putting the residents who don’t want to accept these risks at increased risk as well? When residents live in close quarters, this can be difficult. I have a sister who lives in a shared house and the differing attitudes of her housemates has been a source of significant stress for her. I can only imagine how much more complicated that might be where residents have limited understanding of the risks and the measures they can take to keep themselves safe. Factor in under resourced care homes with overworked and underpaid staff, and what is possible in practice seems very different from the theoretical.
Another thing that will continue to irritate me is the lack of any real thought as to how to apply any of this to people who lack capacity to make decisions about their residence and care. The guidance makes fleeting reference to the Mental Capacity Act 2005, and directs people to the MCA specific guidance that hasn’t been updated, and is fairly scant on details anyway.
Off the back of that guidance, and in light of mounting discontent, ADASS prepared an advice note that clearly states that blanket bans on visits are very likely to be unlawful on the basis of the Equality Act 2010, Human Rights Act 1998 and adult social care specific legislation, not to mention irrational from a public law perspective when this is contrary to the current guidance. The advice note encourages local authorities to work with care home providers to make lawful decisions on the basis of individualised risk assessments. Care homes might well be reluctant to allow visits and so local authorities should be providing guidance abd appropriate challenge where possible. Now word on the grapevine is that a lot of local authorities have been the instigators of county wide bans on care home visitors. That is going to need to change, unless local authorities are prepared for a costly and reputation ruining judicial review challenge. Because, in case you haven’t noticed, the press are having a field day on this at the moment, with everyone and their mother voicing their opinion on it.
We have also had a useful guidance note from Mr Justice Hayden, vice-president of the Court of Protection reminding us that visiting someone in a care home or hospital continues to be lawful under the Coronavirus restriction regulations. That advice predated the latest regulations, but this exception survives in the new regulations too. This represents a significant shift of approach. Early on in lockdown 1, the Court of Protection seemed willing to accept care homes restrictive visiting policies, in the interests of infection control. But the longer the pandemic continues, the greater impact there will be on care home residents and their families, so it’s only right that the Court should be providing some challenge since there seems to be no end in sight at the moment.
Of course, the Court of Protection has the luxury of looking at each individual’s best interests. But local authorities have to balance the often competing interests of all those in their care.
The updated guidance is now available here. It does not replicator all of the sections that irritated me in the last version, thankfully.
Again, it stresses the importance of risk assessment, taking into account guidance from Directors of Public Health. It highlights the need for restrictions to be changed in the event of an outbreak in a care home. Once again, it is the providers who must ultimately design visiting policies that work for them and their residents.
It sets out some useful factors that should be considered when conducting risk assessments, such as the benefits and risks for their residents, the practical risk management steps that can be put in place, whether residents are particularly clinically vulnerable, whether social distancing is going to be possible and whether needs can be met through other ways of having contact with family and friends.
As with the previous guidance, it acknowledges that the layout and space available within a care home will affect the arrangements that can be made for visits. But there are some practical suggestions for risk managed visiting set out. The absolute maximum of 2 visitors reappears, unqualified this time, so that may be an issue going forward. PPE should be available, and social distancing observed. Although it’s already been acknowledged that might not be possible for some care home residents due to their impaired understanding, so saying this ‘must be maintained at all times’ seems unhelpful. I wonder if this implies that visits shouldn’t take place if residents can’t conform to social distancing. Only time will tell, I suspect.
Booking of appointments, cleaning of visiting areas and using proper ventilation seem sensible, and hopefully viable. Although I’m not aware of many ‘visiting pods’ being set up in my area as yet.
The acknowledgement of the challenges posed by winter weather is promising, and I do like the suggestion of speakers to help communication when screens are used. Points for considering differing needs there.
I do wonder where care home providers are going to get the money from, to implement these measures though. If the answer is local authorities, well, we have no money either!
The reference to the MCA is still fleeting though. Hopefully the MCA specific guidance will be updated shortly.
So the position seems to be that care homes shouldn’t have blanket bans in place. But bans might still continue if care homes do not have the ability/resources/willingness to support safe visits on site. Local authorities should be working with providers and families to support improved visiting policies, but the decision will still ultimately rest with the provider. And right now insurance is proving problematic, but I have no idea what anyone is supposed to do about that right now.
If you are a family member reading this, wanting to visit a relative in a care home, my advice is definitely not to remove them from the home without plans for their care or discussion with the care home and local authority. No matter how frustrated you get, that is not likely to be the answer.
Reasonableness should will out. So ask about the home’s visiting policy as it should be communicated to families anyway as soon as possible. Speak to your local authority too, if there is an impact on your relative’s health and wellbeing, they should be alerted. This is about the person in receipt of care though, not how much you want to see your relative. Because we’d all like to see our relatives (I want to hug my parents so badly!) but that isn’t the local authorities’ role.
Quite what can be done if agreement can’t be reached remains to be seen. It is certainly possible that local authorities will be asked to conduct reviews, and consider if social care needs are being met in a home that won’t allow visitors. Depending on the policies of other homes in your area, there might be a lot of shuffling going on, although negative tests and isolation are likely to be required to support a move in any case, the practicalities of which might prove difficult.
I expect a deluge of human rights claims in the coming months. These might be defended on proportionality grounds, but they might not. Only time will tell.
There’s also some suggestion that conditions on standard authorisations might be the way forward. I am not convinced by that, since there is a difference between article 5 and article 8. In any event, these are often lacking in teeth. Even if a local authority is willing to say that if visits aren’t permitted, remaining there isn’t in best interests, what happens if there is nowhere for the person to go? The Court of Protection too, can only choose from available options too. So an approach that solves issues for individuals is unlikely to be as effective as a system wide change in approach and adaptations to care home environments. But those take time and resources, neither of which anyone has an abundance of at present.
I would hope that frustrated families will start to see positive steps during this lockdown, because the approach being taken is certainly more nuanced than that taken during lockdown 1. The guidance is there, and whilst it’s non-statutory, local authorities and care homes have to take it into account. If they don’t, judicial review continues to provide a (costly) route for challenge.
I’d say I’ll be watching the news with interest to see how this all plays out, but who can bare to watch the news anymore! But I’m always reading blogs and articles, and things are always coming up in my practice so I’ll keep you updated as best I can.
And I will leave you with hope that perhaps we are moving in the right direction at last.
The ADASS note is available at https://musingsoflocalauthorityasclawyer.com/wp-content/uploads/2020/11/ADASS_visiting_guidance_note_20201102.pdf
And the letter from Justice Hayden at https://musingsoflocalauthorityasclawyer.com/wp-content/uploads/2020/11/Letter-from-Mr-Justice-Hayden-for-website-128129.pdf
In case it isn’t obvious from the fact I still haven’t identified the authority I work for, the views expressed on this blog are my own opinion and not the opinion of that local authority