Since the start of the covid-19 pandemic, official guidance on care home visiting has prioritised the duty to protect residents’ right to life (Article 2 ECHR), even where this has severely impacted the right to respect for private and family life (Article 8 ECHR). Over the last 14 months, family members—many of whom perform essential care giving roles—were either banned from visiting their loved ones or faced very significant limitations on their ability to be with them.
The human cost of the visiting restrictions has been vast. Despite the efforts of the hard-working and dedicated people who work in social care, we heard numerous reports of people suffering rapid declines in their physical and mental health as they were isolated from their families for over a year. It has been a powerful reminder of why the right to family life is so important. Of course the Government has a duty to protect the lives of residents in care homes. But it also has an obligation to uphold their right to family life and ensure that this is facilitated in practice.
As restrictions have started to ease in recent months, the Government’s guidance, which applies in England only, has begun to reflect the importance of allowing care home residents to be with their families. As we called for earlier this year, the guidance now makes clear that care home providers should not impose blanket bans on visiting, but instead conduct individualised risk assessments for each resident.
But the Government’s guidance does not have statutory force—it is not underpinned by legislation. As such, many care home providers are arguing that it is not yet safe to follow the guidance, denying care home residents these important family links as part of their right to family life. This is completely unacceptable.
This report focuses on the visiting restrictions in care homes that have been enforced in England. However, given the similarities of some of the restrictions and the shared challenges, many of our conclusions may well also be of relevance in Wales, Scotland and Northern Ireland. The report reiterates our call 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-secure visits might be facilitated. We have prepared a draft statutory instrument to make sure this happens; the Government must now lay it before Parliament.
It is also clear that public authorities do not have a clear enough view of the scale of the non-adherence to the visiting guidance. It was astonishing to hear the Care Quality Commission 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 urgently needs to put in place better processes for collecting data on visiting and monitoring adherence with the guidance.