Legal update


Care home visits: a fundamental standard


Tom Lumsden, a partner at CooperBurnett LLP, looks at the new ‘fundamental standard’ on visiting in care homes


Just before Christmas, the government presented to Parliament its Command Paper as a response to consultation on visiting in care homes, hospitals, and hospices. New regulations were made on 18 December 2023 – the Health and Social Care Act 2008 (Regulated Activities) (Amendment) Regulations 2023. The new statutory instrument may have gone unnoticed by some care providers, but it brings into effect one very important change by introducing a new ‘fundamental standard’ on visiting in care homes.


According to the Command Paper, this will focus on visiting and will allow the CQC to assess registered settings as part of its inspection framework. This new fundamental standard means that the CQC will be able to specifically include visiting considerations as part of its wider regulatory assessment of care providers. The CQC could also use existing civil enforcement powers where it is necessary and proportionate to do so. The idea is to create a consistent understanding of what is acceptable across all relevant providers. The government plans to make guidance on the complaints process clearer for when issues do arise.


Provider concerns


During the consultation process, some providers expressed concerns for imposing the new fundamental standard in some settings. For example, some consultees felt that the new standard might not be suitable or appropriate for a setting which provides services for substance misuse, inpatient detoxification, or rehabilitation services. The government’s view is that such an exception would be justifiable because of the complex circumstances and the risk of relapse for a vulnerable person, where


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visiting is already carefully considered within the care plans in these settings. Supported living settings and extra care housing schemes would also not be in scope of the regulations. The Command Paper mentions that such settings generally exercise ‘exclusive possession’ where the service user benefits from a tenancy agreement and can decide who visits i.e., they can lawfully ask visitors to leave their premises.


The new fundamental standard is


contained in a new Section 9A introduced into the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. It applies the standard to a ‘relevant regulated activity’ which is carried on in a care home, hospital, or hospice. It is interesting to note that there are some specific exceptions from the definition of a ‘relevant regulated activity’, which include: n Where accommodation is provided for persons who require treatment for substance misuse, namely the provision of residential accommodation for a


The idea is to create a consistent understanding of what is acceptable across all providers


person together with treatment for drug or alcohol misuse, where acceptance by the person of such treatment is a condition of the provision of the accommodation.


n Services provided to a service user who (a) is required to be detained in a prison or other institution to which the Prison Act 1952 applies; (b) is detained under the Immigration Acts; or (c) is required to be detained in a prison or other institution to which equivalent legislation in Scotland and Northern Ireland.


It is also interesting to note that the definition of ‘hospice’ does not include a hospital but does include an establishment whose primary function is the provision of palliative care to persons who attend or who are resident there who are suffering from a progressive disease in its final stages. During the consultation process, some consultees called for the changes to be implemented with new primary legislation. The government however adopted an approach of introducing secondary legislation by way of the statutory instrument. There is emphasis on the status of the new ‘fundamental standard’, namely a care standard below which a provider’s care must never fall. This echoes the sentiments the NHS England CEO Amanda Pritchard


www.thecarehomeenvironment.com February 2024


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