New Guidance has been implemented from 2 December 2020 (Visiting care homes during Covid 19 DHSC). The previous guidance published on 2 November 2020 just ahead of lockdown 2, aimed to supplement regulations and provide a more considered approach with some additional recognition of the importance of family or carer visits for those residing in care homes. The new guidance again emphasises the importance of visiting in care homes with the central message that visiting should be enabled and supported wherever possible.

So what is new?

The key new issue is that the government plan to develop rapid turnaround testing to enable visitors has been formalised in the guidance.

Rapid tests will be provided to care homes during December with the intention of enabling testing of up to two visitors per resident, twice weekly.

Whist the emphasis is on testing to enable visits, the guidance contains the clear caveat that this will not entirely remove risk and that additional action is still required.

The guidance re-emphasises the importance of considering individual resident and provider circumstances but now specifically recognises those residents who lack mental capacity and the additional importance of consideration of relevant circumstances when making best interest decisions.

What Practical guidance?

Where testing is available to support indoor visiting:

• Providers should put in place a clear process for implementing visitor testing regime including clear communication to visitors of the purpose and procedure for testing
• Providers should set up own testing areas
• The same family member should visit each time to limit overall numbers

The additional practical guidance where testing is not available provided largely reflects those measures already being taken by a care provider.

Guidance is provided for Tier 1 areas:

• Indoor visiting may go ahead (without testing), but
  • should be limited to 2 people, maintain social distancing, no physical contact, PPE and hand hygiene,
  • should only be where visitors are also from a Tier 1 area
• Providers should consider the use of designated rooms that should be decontaminated throughout the day.

No specific mention is made of Tier 2 or 3, however, The Health Protection (Coronavirus Restrictions) (All Tiers) (England) Regulations 2020 provide an exemption (Schedules 2 and 3 Part 1 paragraph 5) to the restriction on indoor gatherings where an individual is visiting a person receiving treatment in hospital or staying in a hospice or care home in Tier 2 and Tier 3. Tier 3 restrictions information provides that ‘visits to care homes can take place with arrangements such as substantial screens, visiting pods and window visits.’

Where outdoor visiting is taking place:

• Visitor and residents to remain at least two meters apart, visiting can take place at a window or using visiting pods
• A dedicated room or conservatory can be used. A visitor should enter from outside where possible, single access point to space, screen between resident and visitor, good ventilation
• Visitor numbers should be limited to single constant visitor when possible

For all visits, appropriate PPE to be worn and social distancing between visitors, residents and staff should always be maintained.

IPC practice must be maintained, and infection control standards must be met.

Visits in exceptional circumstances such as end of life should always be supported and enabled.

In exceptional circumstances, individual risk assessments should be undertaken for those residents for whom staff or visitors wearing a face mask causes difficulty by reason of their care needs and effect on behaviours of concern.

Care home visiting policy should be made available and or communicated to residents and families, together with any necessary variations to arrangements due to external events.

Does this guidance alter the requirements for care providers?

The position remains that care providers should ensure arrangements are made to enable visits wherever possible based on the needs of individual residents and what is practicable given the layout and facilities of the care home.

What is known is that care homes will be open to increasing criticism, reputational damage and legal challenge if unable to establish that individual risk assessments are not undertaken, and all reasonable efforts made to facilitate contact.

Blanket bans and approaches arrangements that are not care home or resident specific are likely to be open to legal challenge.

Where a patient (P) is the subject of Court of Protection proceedings, the issue of contact may be considered relevant to P’s best interests. The recent and ongoing case of Michelle Davies in the Court of Protection is challenging a lack of meaningful family contact. Judge Hayden considered family contact and emphasised that even during the pandemic it is important to recognise the individual needs of P, when weighing up the wider public interest. The COP will always look at decisions in the best interests of the individual including the extent to which contact is required and facilitated.

If providers do not consider all factors, challenges may also be brought by residents or families in relation to both the Human Rights Act 1998 and Equality Act 2010.

Efficacy in relation to the availability or effectiveness of testing arrangements, should not be a barrier to continue to plan and implement visiting arrangements.

What about individual residents or patients leaving a care home?

There is no authority for care homes to ban all individuals who have capacity from leaving homes. If an individual does not have capacity, the decision to leave a care home must be considered individually on a best interest’s basis. A blanket ban on preventing visitors to care homes is likely to be unlawful.

What next?

Government guidance and public opinion is moving towards an increased recognition of the importance in facilitating visits in care homes. The 2 December guidance places the emphasis on the testing of visitors as a means of enabling increased visits with the caveat that other measures will still be required.

The challenge for care homes will continue to be to implement the logistics of testing amid the demands of families and ongoing need to protect staff and residents. As noted in the guidance, testing does not entirely remove the risk of infection and care homes will still be required to continue to use PPE, infection and control and social distancing measures. The speed at which testing and vaccination is implemented will also affect the ongoing pressures on providers.

Providers are tasked with addressing the risks to life of all residents and staff against their individual wellbeing, best interests and human rights. Arrangements remain to be determined by individual care homes balancing the needs of residents and requirement to continue to protect from the risk of COVID infection and until increased testing and vaccination is widely available, care homes will be required to continue to provide innovative and practical solutions.