In April 2024, new legislation protecting the rights of families to visit care homes came into force. Following criticism over how visitation and contact was managed throughout the COVID 19 pandemic, the Care Quality Commission (CQC) undertook a public consultation and have now published final guidance to assist care providers in comprehending and adhering to the new standard on visiting and accompanying in care homes, hospitals, and hospices. It also outlines the expectations for individuals using health and social care services, as well as their families, friends, or advocates.
Here we look at what’s changed, to help those navigating a move into care better understand their rights to visitation.
The aims of the new regulations
Although there is currently advice in place to support visits through the Human Rights Act of 1998, NHS England and the Care Quality Commission (CQC), the amended regulations go one step further and classify it as a fundamental standard.
In England, care home residents now have the legal right to receive visitors. This ensures that individuals in care homes, hospitals, or hospices can welcome visits from their chosen companions.
Furthermore, those residing in care homes are encouraged to take trips outside the premises without hindrance, and individuals attending non-overnight appointments in hospitals or hospices are allowed to be accompanied by a family member, friend, or advocate should they desire company.
Visits to a care home resident receiving end-of-life care should always be encouraged, according to government guidelines, even in cases of an infection outbreak. According to NICE, someone is at the end of their life if they appear likely to die within the next 12 months.
Care home visitation rights
Care home residents have the right to maintain connections with family and friends, regardless of how their care is funded. The care facility should be regarded as their home, and it is important that staff make every effort to facilitate private and respectful visits. Failure to do so could result in breaches of regulations under the Health and Social Care Act 2008.
If the care home receives NHS or local authority funding and restricts resident visits, it may also infringe on Article 8 of the European Convention on Human Rights, which ensures respect for private and family life. Regulatory bodies like CQC will intervene if breaches occur without evidence or robust reasoning as to why.
To maintain a balance between the right to visitation and the safety of residents in care homes, providers may need to restrict or refuse visitors in certain situations. The priority should always be to enable in-person visits whenever possible, and providers are responsible for implementing necessary safety measures and precautions with input from residents, their families, friends, or advocates, to facilitate safe visits.
These precautions should be the least restrictive options and should involve informed decision-making, with reasonable adjustments made as needed. Regular reviews of implemented precautions should be conducted collaboratively to lift restrictions promptly. Clear communication is vital throughout the process, and the provider should designate points of contact for any inquiries or concerns regarding visitation restrictions.
When can visitation be stopped?
Occasionally, exceptional circumstances may arise where, despite all precautions, a visit could pose a significant risk to the health, safety, or welfare of a person using the service or present on the premises. In such cases, even after careful consideration, an in-person visit or accompaniment may not be safely feasible, leading to the necessity to impose visitation conditions.
The provider must promptly implement the required restrictions and regularly review the arrangements, being mindful of the potential impact any restrictions may have on the resident’s well-being and care, resorting to a ban only as a last resort. Once conditions change, the provider should lift the restriction and allow in-person visits or accompaniment again.
Adopting a human rights-based approach to decision-making can assist providers in facilitating visits and accompaniment while addressing restrictions in complex scenarios. This approach involves evaluating the appropriate balance between an individual’s right to privacy, family life, independence, choice, control, risk, and safety, ensuring that restrictions are lawful, legitimate, and proportionate.
If a care home prohibits you from visiting a family member or friend, it is advisable to initiate a discussion with the care home manager to resolve any conflicts that may have arisen.
Even though such matters may be especially emotive, guests should also be mindful of their conduct during visits or contact with staff, as certain care homes have clauses in the resident’s contract regarding visitor behaviour. Therefore, it is crucial to thoroughly review the contract to understand and comply with the rules, such as refraining from abusive language.
Mental Capacity
Care providers must prioritise considering individuals’ mental capacity when arranging visitation. Involving the resident or their legal representative in care planning, management, and review is crucial. This encompasses ensuring visitors can accompany residents to appointments. Decisions should be made by authorised individuals in compliance with the Mental Capacity Act 2005, which mandates consultation with relevant parties like families, unpaid carers, and advocates.
If a visitor holds Power of Attorney for Health and Welfare for a resident lacking capacity, the care home should facilitate their visits without restrictions. However, the Power of Attorney holder can restrict other visitors if safety concerns arise.
In cases where the care home questions the Power of Attorney holder’s actions, they can challenge their registration by submitting an objection form to the Court of Protection with supporting evidence.
In Summary
The health and wellness of care home residents, as well as the friends and family of those service users, was severely impacted by COVID restrictions. When the limitations were relaxed, many providers began to allow visits as normal; nevertheless, some providers continued to impose some visitation restrictions, which was viewed as unfair and even harmful by many.
These new rules will be welcomed since they will give much-needed clarity to the law about visiting care facilities and will benefit a large number of residents as well as their loved ones.
Should you have any concerns or queries about how these regulations will be enforced, and what they will mean for your personal circumstances, please do not hesitate to contact us for an impartial consultation.
