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Legal update


who, in her introduction to the Command Paper, refers to fact that the NHS England’s national principles for hospital visiting remain the absolute minimum standard. The maxim is that “no patient should be alone unless through their own choice.”


Identifying a breach


The new fundamental standard will allow CQC to have a clearer basis to identify a breach by a care provider and to use civil enforcement powers to act when necessary. The new regulations will not confer any additional powers on the CQC. While the Command Paper says that supported living settings and extra care housing schemes are not in scope of the regulations, there are potentially ‘blurred lines’ in relation to services where, legally, the provision of accommodation and, separately, personal care is split into two separate contracts. Some care homes have one contract for


the provision of personal care, but a separate tenancy agreement for the provision of accommodation. In effect, the care home’s resident does have ‘exclusive possession’ of his or her room or suite. While most residents under such an arrangement would receive personal care from the care staff at the care home in which they reside, quite often under the terms of their tenancy agreement, the resident will have the full right to nominate a personal care provider of their own choice i.e. the care home supplies the resident’s accommodation, but personal care is supplied by an unrelated third party. So, in some cases, the distinction can be a little arbitrary.


The consultation provided some interesting summaries of feedback from consultees and, in relation to care homes, the most common circumstance that


The new regulations will not confer any additional powers on the CQC


respondents felt should be an exception to a mandatory visiting requirement was where ‘the resident does not wish to receive visitors’. Other reasons were ‘if the person visiting a care home is unwell and will make other people unwell’ and ‘if the person visiting a care home might hurt someone’ and ‘if the person does not want to have a visit’. The government does not intend to include a list of specific exceptional circumstances in the legislation where the requirement for providers to facilitate visiting does not apply. The ‘teeth’ of the new regulations are in regulation 9A(2) where, unless exceptional circumstances apply, service users whose care or treatment involves an overnight stay or accommodation in a care home, hospital or hospice must be facilitated to receive visits at those premises. Those provided with accommodation in a care home must not be discouraged from taking visits out of that care home. Those attending a hospital or hospice for the provision of care (not involving an overnight stay) must be capable of being accompanied at those premises by a family member, friend, or person who is otherwise providing support to the service user.


New obligations The care provider needs to ensure visits meet the service user’s needs and reflect their preferences and must put in place such precautions as are necessary and proportionate to ensure service users may


receive visits or be accompanied safely. The provider must also, when making arrangements or decisions in respect of a service user, have regard to any care or treatment plan for the service user and needs to involve relevant persons when making any arrangements or decisions in respect of a service user. The new regulations do not require a service user to receive a visit or take a visit out of a care home or be accompanied without the relevant person’s consent or where the service user lacks capacity to give consent, where it would not be in the service user’s best interests. In conclusion, care providers should


review any current arrangements on visits either to the care home or arrangements for ‘visiting out’ where the resident wishes to leave the care home. In particular, with respect to residents who wish to ‘visit out’, care needs to be taken that any restrictions placed on care home residents on their return from those visits (for example, self-isolation) are not unduly restrictive, as this might discourage ‘visiting out’. This was highlighted as a point of concern in the Command Paper. For most care providers who already


have comprehensive visiting arrangements in place, the new regulations are unlikely to cause any major problems.


Disclaimer The above article is not intended as legal advice and must not be relied upon as such.


n


Tom Lumsden


Tom Lumsden is a partner at CooperBurnett LLP in Tunbridge Wells, specialising in commercial property. He has particular expertise in the sale and purchase of care homes, including acquiring land for care home developments.


February 2024 www.thecarehomeenvironment.com 23


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