Legal update
Covid-19: To visit or not to visit?
Tom Lumsden, a partner at Tunbridge Wells-based solicitors CooperBurnett LLP, takes a legal look at care home visitor guidance in light of the Covid-19 pandemic
The Department of Health & Social Care (DHSC) is facing a legal challenge from a charity by way of judicial review of its guidance on visiting care homes, which was issued in July.
The challenge is being brought by John’s Campaign, whose lawyers sent a pre-action protocol letter to Health Secretary Matt Hancock, to challenge the legality of the guidance governing visits since lockdown ended, on the basis that the guidance discriminates
disproportionally against those suffering from dementia. The charity claims the guidance is unlawful.
It is useful to have a more detailed look at the DHSC guidance, the first priority of which states that it is to reduce the risk of Covid-19 in care homes and prevent future outbreaks, to ensure the health and safety of both care workers and residents. The guidance stated that care home visits could resume once local directors had decided it was safe to do so. The DHSC suggests directors of public health and care providers should follow the guidance to ensure that policies for visiting arrangements and decisions are based on a ‘dynamic risk assessment’ and to minimise risk, wherever possible, which would require consideration of (a) the circumstances of the individual care home (for example, its employee availability, resident demographics and outbreak status) and (b) its local
circumstances (eg., local epidemiological risk, presence of outbreaks in the community).
The guidance itself would appear to be a living document, in that it will be updated as the risk posed by Covid-19 changes. This will be important given that the government continues to push employers to encourage staff back to work, and school pupils and university students to their learning institutions, and the possible effect on daily infection rates.
The process of considering visitors is given to the relevant local director of public health, who should give a regular professional assessment of whether visiting is likely to be appropriate within
Providers may apply different rules for different residents or categories of residents if appropriate, based on an assessment of risk of contracting Covid-19
November 2020 •
www.thecarehomeenvironment.com
their local authority, taking into account the wider risk environment. To limit risk where visits do go ahead, these should be limited to a single constant visitor, per resident, wherever possible, to limit overall numbers.
The director of public health is required by the guidance to assess the suitability of a specific level of visiting and guidance for that area, taking into account the relevant infection and growth rates.
Visiting guidance and future updates are to be communicated to the local care provider associations, local commissioners of care homes, the Clinical Commissioning Group (CCG), Infection Control Lead, and the Public Health England local health protection team (HPT). The Covid-19 Local Outbreak Board is also required to be informed. The guidance states that, as the rate of community transmission has reduced, care homes are allowed to develop a policy for limited visits. Usefully, the Care Provider Alliance had already published on its website a visitors’ protocol for care
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