1.The last 14 months have been some of the most difficult many of us have ever experienced. The Government has imposed extensive restrictions on our freedom in an effort to keep the most vulnerable in our communities safe from the covid-19 virus. For much of the year, we have all been stopped from being with people we love; we have seen family visits cancelled, celebrations postponed, and farewells missed. But few people have endured more over the last year than residents of care homes and their families.
2.In a future public inquiry, much will be written about decisions to discharge hospital patients back into care homes at the beginning of the pandemic, exposing those people most susceptible to the virus to such significant risk. What is already clear is that the human cost of these decisions has been high, with the Office for National Statistics (ONS) estimating more than 29,000 excess deaths in care homes since March 2020. Behind each of these premature deaths, there will be family and friends who grieve a painful loss, many denied the chance to say a proper goodbye. Thousands more families have suffered the uncertainty of waiting to find out whether their loved ones would also be lost to the virus.
3.While care home residents were left on the inside, families have been forced to wait on the outside. For much of the last year, there have been strict limitations on visits to care homes, particularly in parts of the country hardest hit by the pandemic. The ONS estimated that between 26 May and 20 June 2020, 97% of care homes in England were closed to visits. As the year went on, areas in England which found themselves in the High (tier 2) or Very High (tier 3) alert level were advised that people should not visit except in exceptional circumstances. Current guidance, which applies in England only, advises that residents should be allowed two named visitors who are able to enter care homes for regular visits, accompanied by babies and toddlers, while those with the highest care needs should also be allowed to nominate an essential care giver.
4.However, questions remain as to whether, without statutory underpinning, care home providers are actually implementing the Government’s guidance in practice. When asked on the BBC’s Today Programme in March 2021 whether care home providers were implementing it, the Chief Executive of Care England—a representative body for independent care providers—said, honestly but revealingly, “Well, of course, it is guidance, it’s not mandatory”, arguing that the safety of residents was a higher priority. Indeed, we are still aware of reports of blanket bans on visiting care homes, while other providers have imposed restrictions on visiting to just 30 minutes a week or forced families to endure ‘prison-like’ visits, permitted only to speak to their relatives through telephones behind plastic screens.
5.Care home visiting restrictions engage human rights—in particular the right to life under Article 2 of the European Convention of Human Rights (ECHR), the right to liberty and security under Article 5 ECHR, and the right to respect for private and family life under Article 8 ECHR.
6.Article 2 ECHR imposes an obligation on the State to secure the right to life. It has two aspects: the substantive obligation to take appropriate steps to safeguard the lives of those within the state’s jurisdiction; and the procedural obligation to carry out an effective investigation into alleged breaches of the substantive obligation. Although the right to health is not, as such, among the rights guaranteed under the ECHR, elements of it are protected by ECHR rights. For example, the European Court of Human Rights in Strasbourg recognises that some elements of the right to health fall within the positive obligation to secure the right to life.
7.Article 8 ECHR protects the right to private and family life. This includes the right to maintain family relationships, for families not to be separated without due process and to permit regular contact. The issuing of guidance by Government intended to guide or direct providers—whether private or public—to limit visiting undoubtedly constitutes an interference with the Article 8 ECHR rights of both care home residents and family members. Article 8 is, however, a qualified right, and can be restricted in accordance with the law, where it is necessary and proportionate to do so. Such circumstances would include the protection of public safety, the protection of health, national security, the economic wellbeing of the country and the protection of the rights of other people, each of which are highly relevant to the situation in which we find ourselves. Article 8 also imposes a positive obligation upon the State to secure respect for the right to private and family life where the restrictions on that right are being placed not by State agents but by private actors.
8.The question is how to balance these rights during a global pandemic. While protecting the right to life should always be a priority, the denial of the right to maintain meaningful family relationships, particularly over such an extended period, is likely to be in contravention of the right to family life under Article 8 ECHR.
9.Whilst the general lockdown restrictions have not generally been so restrictive as to engage Article 5 ECHR (deprivation of liberty), some specific restrictions could do so. This is particularly the case when there are not adequate exemptions to a rule restricting movement. There are concerns that the requirement for residents to isolate for 14 days following a visit outside of a care home, as set out in the Government’s guidance could engage the right to liberty under Article 5 ECHR.
10.In order for an interference with Article 5 or 8 ECHR rights to be a lawful interference, it must be ‘in accordance with the law’. Therefore, given that this 14-day isolation ‘rule’ is guidance rather set out in law, any attempts to enforce it would arguably not be ‘in accordance with the law’. It is therefore doubtful that this rule could be a lawful interference with a person’s Article 5 or Article 8 ECHR rights.
11.In general, only publicly-funded residents in care settings are able to raise arguments based upon the Human Rights Act 1998 (HRA) directly against the providers in those settings. The HRA only applies to care homes to the extent to which they can be said to be public authorities. This means, broadly, that the HRA only applies to care homes where they are run by a public authority. There is a clarification in the Care Act 2014 that the HRA applies where the care is local authority-funded. However, this means that those who are self-funders in care homes, or whose care is funded by the NHS, cannot directly rely on the HRA to raise human rights concerns in respect of the actions of the care home.
12.By contrast, a privately funded resident in a facility run by a private care provider would have to find a way in which to identify an organ of the State which is in some way responsible for failing to discharge its positive obligation to ensure that they are able to enjoy their right to private and family life in the face of interference by that provider. In reality, that privately funded resident could be in the next bedroom to a person whose case is funded by a local authority. These complexities emphasise the challenges faced by a privately-paying care home resident, or their family, seeking effectively to rely upon the HRA in a private care home.
13.Care home residents and their families can rely upon the HRA to challenge guidance issued by the Government and we outline specific problems with different guidance documents issued below. In practice, however, it is often the case that the real problem lies less with the guidance than the decisions taken by care homes and care providers themselves.
14.Importantly, to the extent that legislation relating to care providers sets standards for all facilities, then those standards will need to be respected for all residents. Further, the facilitation of visits to care homes is crucial to ensure compliance with human rights standards in care homes more generally. As with any closed environment, regular access for families and regulatory bodies helps to ensure that poor practices cannot go unchecked.
15.In our report on the human rights implications of the Government’s response to covid-19, published in September 2020, we raised concerns about the impact of visiting restrictions on those living in residential care homes and said that blanket visiting bans for those deprived of their liberty were contrary to the rights of residents and their families under the ECHR. We said that restrictions on visiting rights must only be implemented on the basis of an individualised risk assessment and such risk assessments must take into account the risks to the person’s emotional wellbeing and mental health of not having visits.
16.This report forms part of a broader inquiry into the Government’s response to covid-19 and the human rights implications of long lockdown. We have published two reports under this inquiry so far: first, on freedom of assembly and the right to protest; and second, on fixed penalty notices. We have held three public evidence sessions on visiting in care homes, with an initial session in January 2021 and two further sessions in April 2021. We are grateful to everyone who gave evidence to the Committee and to our Specialist Adviser, Alex Ruck Keene.
17.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 sets out how the Government’s guidance on visiting care homes has evolved since the start of the covid-19 pandemic. We reflect 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. We note 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. Finally, we reiterate our call for legislation to require that care home providers undertake individualised risk assessments before placing restrictions on visits.
1 This Committee called for a public inquiry: , Joint Committee on Human Rights, Seventh Report of Session 2019–21 (HC 265; HL Paper 125), para 97 and the Prime Minister has said that one will happen “as soon as it is right to do so”,
2 , and
3 ONS, Impact of coronavirus in care homes in England: 26 May to 19 June 2020, 3 July 2020.
4 DHSC, Local COVID alert level: high, 27 October 2020; DHSC, Local COVID alert level: very high, 30 October 2020.
5 , BBC Radio 4, 10 March 2021
6 , Daily Express, 1 April 2021
7 Centre for Legal Resources on behalf of Valentin Câmpeanu v Romania  ECHR 972.
8 Lopes de Sousa Fernandes v Portugal  ECHR 1174 at paragraph 166; for further information on the scope of Article 2, see our report: Chapter 4, , Joint Committee on Human Rights, Seventh Report of Session 2019–21 (HC 265; HL Paper 125)
9 See for instance Evans v United Kingdom  ECHR 200 at paragraph 75.
10 Department of Health and Social Care, updated 7 April 2021, and as discussed in Chapter 2
11 It is not, in fact, a ‘rule’ in a statutory sense, but rather a recommendation in guidance. It is, however, commonly referred to as a rule, so we use that term here.
12 , Joint Committee on Human Rights, Seventh Report of Session 2019–21 (HC 265; HL Paper 125), para 136
13 , Joint Committee on Human Rights, Thirteenth Report of Session 2019–21 (HC 1328; HL Paper 252) and , Fourteenth Report of Session 2019–21 (HC 1364; HL Paper 272).
14 As set out in the , 3 February 2021