Legal update
providers (https://careprovideralliance.
org.uk/coronavirus-visitors-protocol). Local directors of public health would need to consider as a minimum, (a) local testing data including test and trace data as well as, (b) any national oversight taking place in an area, due to transmission risks. Care home operators and the director of public health should also consider the following, where possible. a) Any testing that takes place outside of the care home, e.g. community or home testing.
b) Results from weekly testing of staff and monthly testing of residents.
c) Local intelligence on risk factors relevant to transmission in the home. For example, a nearby concentration of locations where there may be a higher potential risk of transmission such as food processing plants.
d) Readiness of the care home to respond quickly when there is a confirmed or suspected Covid-19 case within the care home.
Visitor guidance for care homes The guidance goes on to give advice to care home operators when establishing a visiting policy. The key factor is that operators must have a risk assessment in place and the guidance provides a list of key factors to consider including: l The level and type of care provided by external visitors and the ability of the care home to replicate the care.
l A balance of the benefits to the residents, against the risk of visitors introducing infection into the care home or spreading infection from the care home to the community.
l Limiting the numbers of visitors to a single constant visitor per resident, wherever possible. For example, the
same family member visiting each time to limit the number of different individuals coming into content.
l The ability of a setting to put in place practical measures to mitigate any risks arising from visits, such as the use of communal gardens, window visits etc.
l The health and wellbeing risks arising from the needs of residents.
l Advice from the Public Health England local HPT if an outbreak occurs and the local director of public health and infection prevention and control lead from the responsible CCG.
l Discussion with staff to address anxieties and provide appropriate support.
l The practical effectiveness of social distancing measures.
l Whether healthcare needs of the individual cannot be met by socially-
If the challenge is successful, then the Court might issue a quashing order that sets aside the DHSC guidance
distanced visits, whether there are sufficient infection control measures in place to protect the residents, staff and visitors.
Providers may apply different rules for different residents or categories of residents if appropriate, based on an assessment of risk of contracting Covid- 19. If the care home’s policy allows different rules for different residents or categories of residents, then the policy should explain the different approaches applied and factors relevant to a decision, and the decision-making process.
DHSC guidance: the case against One reported problem of the guidance appears to be that some care home operators are making decisions based on individual needs in terms of allowing visits but other care home operators lack confidence to make decisions, which clear government direction would give them. As mentioned above, the John’s Campaign legal challenge seeks a judicial review of the DHSC’s guidance. In judicial review proceedings, the Court is asked to review the lawfulness of a decision or action made by a public body, i.e. the lawfulness of the visiting guidance issued by the DHSC.
The challenge is brought in relation to the way in which a decision has been made, rather than the rights or wrongs of the conclusion reached. The Court would not substitute what it thinks would be the ‘correct decision’. The DHSC would be able to make the same decision again, so long as it does so in a lawful way. There have traditionally been three grounds for judicial review, namely illegality, irrationality and procedural impropriety. Any challenge to the guidance on this ground would therefore have to show that the guidance was illegal, i.e. that the DHSC had acted beyond its powers and that therefore their decision was ‘ultra vires’. The second ground would be irrationality/unreasonableness. One formulation of the test for
irrationality/unreasonableness is that the decision of the DHSC would have to be shown to be ‘so outrageous in its defiance in logic or accepted moral standards that no sensible person who had applied his mind to the question to
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www.thecarehomeenvironment.com • November 2020
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